TMI Blog2020 (5) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... holding that the exemption granted from payment of tax is not a general exemption and the assessee is not entitled to the benefit of exemption from payment of tax under Section 8 (2A) of the Central Sales Tax Act, 1956. The questions of law are accordingly, answered in affirmative. - Tax Reference No.17/2017, 19/2017 - - - Dated:- 18-5-2020 - Shri Justice S.C. Sharma And Shri Justice Shailendra Shukla For the Petitioner : Shri Sumit Nema, learned senior counsel along with Shri Gagan Tiwari, learned counsel For the Respondent : Shri Abhishek Tugnawat, learned counsel ORDER PER : S.C. SHARMA, J: Regard being had to the similitude in the controversy involved in the present cases, these Tax References were analogously heard and by a common order, they are being disposed of by this Court. Facts of the Tax Reference No.17/2017 are narrated hereunder. The present Tax Reference has been forwarded to this Court by the Madhya Pradesh Commercial Tax Appellate Board in exercise of the power conferred under Section 17 of the Madhya Pradesh Commercial Tax Act, 1994. 02. The following questions of law have been referred to this Court :- Question No.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Board, has submitted an application under Section 70 of the Madhya Pradesh Commercial Tax Act, 1994 for referring the questions of law before this Court. 05. Heard learned counsel for the parties at length and perused the record. 06. The notification, on the basis of which the assessee is claiming exemption in the present case, dated 30.03.1994 came into force w.e.f. 01.04.1994 and the same reads as under:- The aforesaid notification provides exemption from payment of tax on all kinds of footwear made of PVC and chappals made of rubber and straps there of the sale price of which did not exceed ₹ 50/- per pair . 07. The moot question before this Court is whether proper interpretation has been done by the Madhya Pradesh Commercial Tax Appellate Board by holding that the notification was not general to class of goods, and therefore, the assessee was not entitled for the benefit of exemption from payment of tax under Section 8 (2A) of the Central Sales Tax Act, 1956. 08. Learned counsel appearing for the assessee has placed reliance on the several judgments delivered in the cases of Nayan Sukh Through Partner Mahmood Alam, Satna v/s Commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural Incometax Officer [1990] 184 ITR 190, one of the questions that fell for consideration of a Division Bench of this Court was whether the circular issued by the Commissioner of Agricultural Income-tax stating that no surcharge shall be leviable where assessments were pending was binding upon the department. A learned single Judge of this Court had repelled the contention holding that any circular which was contrary to the provisions of the statute was unenforceable and could be ignored. In appeal however, Shivashankar Bhat, J., speaking for the Bench and relying upon the judgments of the apex Court in Navnit Lal C. Javeri v. K. K. Sen, Appellate Assistant Commissioner of Income-tax, Bombay [1965] 56 ITR 198 and in Ellerman Lines Ltd. v. Commissioner of Income-tax, West Bengal [1971] 82 ITR 913 held that the circulars issued by the Commissioner of Agricultural Income-tax was binding on subordinate officers and that the assessing authorities under the Karnataka Agricultural Income-tax Act, were bound to give effect to any such circular. The view taken by the Division Bench has however been considerably watered down by a later judgment of the Supreme Court in Bengal Iron Corporati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubtedly of a statutory character but, as explained hereinbefore the power under section 42 cannot be utilised for altering the provisions of the Act but only for giving effect to the provisions of the Act. Since the goods manufactured by the appellant are different and distinct goods from case iron, their sale attracts the levy created by the Act. In such a case, the Government cannot say, in exercise of its power under section 42(2) that the levy created by the Act shall not be effective or operative. In other words, the said power cannot be utilised for dispensing with the levy created by the Act, over a class of goods or a class of persons, as the case may be. For doing that, the power of exemption conferred by section 9 of the A.P. Act has to be exercised. 11. Similarly, in the case of Royal PVC Shoes Private Limited (supra) , the High Court of Rajasthan in paragraphs 38, 39, 40 and 41 has held as under:- 38. In that view of the matter, we are of the opinion that notwithstanding implied over-ruling of decision in Shiv Sainath Rubber Industries Pvt. Ltd., the exemption under notification dated 7.3.94 is an exemption of class of shoes which are not made to leather ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax generally under the sales tax law of the appropriate State, if under that law the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stage or otherwise than with reference to the turnover of the goods. 8. Referring to the said Explanation, the apex court pointed out that where terms of notification on the exemption from taxation are restricted by reason of certain conditions imposed therein or exemption granted under certain circumstances, then the said exemption is not of a general one. In the background of the said judgment, if one looks at the entry relating to the exemption on aluminium domestic utensils, it is clear that the exemption is not available in respect of aluminium domestic utensils in general and in particular if they are operated by pressure or electricity, which mean aluminium domestic utensils not operated by pressure or electricity alone qualified for exemption. 9. Applying the abovesaid decision of the Supreme Court to the said entry aluminium domestic utensils not operated by pressure and electricity , it is difficult to accept ..... X X X X Extracts X X X X X X X X Extracts X X X X
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