TMI Blog2022 (12) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is stated to be outrightly rejected. The intention, the object and the purpose of such exemption cannot be interpreted by referring to Rule 26A which operates in entirely different field. There is absolutely no inconsistency nor the form is contrary to the Rule 33A rather the form is part of the rule itself. The order passed by the learned tribunal rejecting the revision petition filed by the fourth respondent to be just and proper and does not call for any interference. Writ petition dismissed. - W.P.T.T. NO. 01 OF 2022 - - - Dated:- 13-12-2022 - THE HON BLE MR. JUSTICE T.S. SIVAGNANAM AND HON BLE MR. JUSTICE BIVAS PATTANAYAK Appearance:- Mr. Rajeev Kumar Agarwal, Adv. ........For the Petitioner Mr. T.M. Siddique, Adv. Mr. Debasish Ghosh, Adv. ..For the State JUDGMENT (Judgment of the Court was delivered by T.S.SIVAGNANAM, J.) 1. This writ petition has been filed challenging the order passed by the tribunal. The facts which are necessary for the consideration of the relief sought for in the writ petition could be stated as follows:- 2. The petitioner is a private limited company engaged in the business of manufacturing of jewel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the gold so purchased should be used for manufacture of jewellery in West Bengal and therefore the form of certificate is contrary to the rule. The petitioner had undertaken the manufacture of jewellery in Coimbatore and thereafter exported the same which has not been disputed by the department and therefore the petitioner has not disposed of the manufactured jewellery in any other manner. The learned counsel placed reliance on the decision of the tribunal in the case of Nayara Energy Limited Versus Senior Joint Commissioner of Commercial Taxes, LTU in Case No. R.N. 1399 2018 dated 13.11.2020 wherein it was held that the form appended to the rules has to be in conformity with the provisions of the Act and the rules framed thereunder. It is submitted that initially the challenge made by the respondent bank was heard by the two member bench of the Tribunal which had agreed with the submissions made by the state and taking note of the facts that the decision of the tribunal in Nayara Energy Limited was a three member bench, the case of the respondent bank was referred to a three member bench and that is as to how the matter was dealt with and the impugned order came to be pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Pradesh and Another (1997) 2 SCC 37 State of U.P. Versus Jaiprakash Associates and Others (2013) 39 Taxman.com 44 (SC), Commissioner of Income-Tax, Chennai Versus Tulsyan NEC Limited (2011) 196 Taxman 181 (SC) Jai Matadi Enterprises Versus S.T.O. Asansol Charge Others (2018) Volume 71 Sales Tax Advisors Page 22 (Tribunal) IDL Chemicals Limited Versus Union of India 1996 (86) ELT 182 (SC), Corporation Bank Versus M/s. Saraswati Abharansala and Another in Civil Appeal No. 6708 of 2008 dated 19.11.2008 (SC) and Government of Kerala and Another Versus Mother Superior Adoration Convent (2021) 5 SCC 602. 5. Mr. T.M. Siddique, learned counsel appearing for the respondent state submitted that in the form of certificate appended to the rules, it is prescribed that the purchasing dealer must certify that the goods purchased from the selling dealer are for the purpose of use in the manufacture of jewellery in West Bengal to be exported by him out of the country and are not intended to be disposed of otherwise. It is submitted that the said certificate appended to Rule 33A is integral part of the rule and cannot be read and interpreted separ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rule reliance was placed on the decision of the Hon ble Supreme Court in the Maharashtra State Road Transport Corporation Versus Babu Goverdhan Regular Motor Services and Others 1969 (2) SCC 746 . It is further submitted that Rule 33A relates to deduction on turnover of sales and it is not akin to denial of the rebate of tax or input tax credit (ITC) on the basis of geographical restrictions. To buttress the said submission, reliance was placed on the decision of the Hon ble Supreme Court in Jindal Stainless Steel Limited Versus State of Haryana (2017) 12 SCC 1. Further by relying upon the decision of the Hon ble Supreme Court in Commissioner of Customs (Import) Versus Dilip Kumar and Company and Others (2018) 9 SCC 1, it is submitted that the concession granted by the Rule 33A has to be strictly interpreted and such interpretation should lean in favour of the revenue. 6. Mr. Agarwal reiterated that neither in Sub rule (1) nor in sub rule (3) of Rule 33A there is any condition prescribed that the manufacture of jewellery has to be undertaken in the State of West Bengal and it appears only in the form of certificate which cannot override the rule. With regard to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k, authorised by the Reserve Bank of India to import gold or silver or platinum from outside India; or (b) the Minerals and Metals Trading Corporation of India Limited (a Government of India enterprise) (hereinafter referred to as MMTC), sells gold, silver or platinum to a registered dealer in West Bengal for use of such goods by such registered dealer in manufacture of jewellery to be exported by him or by MMTC out of the territory of India, such scheduled commercial bank or MMTC may, subject to the conditions specified in sub-rule (3), deduct turnover of such sales of such goods under clause (c) of sub-section (1) of Section 16. (2) Where any registered dealer sells diamond or precious stones to a registered dealer in West Bengal for use of such goods by such purchasing registered dealer in manufacture of jewellery to be exported by him out of the territory of India, such selling registered dealer may, subject to the conditions specified in sub-rule (3), deduct turnover of such sales of such goods under clause (c) of sub-section (1) of Section 16. (3) For claiming the deduction under clause (c) of sub-section (1) of section 16 as referred to in sub-rule (1) or sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for use of such goods in the manufacture of jewellery to be exported by him subject to the conditions prescribed in sub rule (3) will be entitled to deduct such turnover of such sales under Clause (c) of sub section (1) of Section 16. What is required to be done by the registered dealer is spelt out in Sub rule (3) of Rule 33A stating that the selling registered dealer shall furnish relevant invoice or cash memo evidencing such sales and the certificate in the form appended to the rule duly filled in and signed by purchasing dealer. The form of certificate as required by purchasing dealer to certify that the goods purchased are for the purpose of use in the manufacture of jewellery in West Bengal to be exported by him out of the territory of India and not intended to disposed of otherwise. The invoice No., date, description of goods, quantity and the amount have to be furnished apart from the name and address of the purchasing dealer and certificate of registration number. The contention of the petitioner is that in Rule 33 (1) and (3) there is no such restrictions that the gold, silver or platinum purchased has to be used in the manufacture of jewellery in the State of West Benga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isely the reason for which the rule 33A (1) mandates that both the selling and purchasing dealers have to be registered in the State of West Bengal. Therefore, we find that the form of certificate is embodied in the rule and unless the form is read along with the sub rule (3) it becomes meaningless and such interpretation is impermissible. That apart, the petitioner cannot contend that it is sufficient if the selling dealer furnishes the relevant invoices evidencing such sales and they would be free to carry on job work with the gold so purchased by doing the job work outside the State of West Bengal. The intention of legislature is clear from reading the rule as a whole as it mandates both the dealers should be registered in State of West Bengal and the gold so purchased should be used in the manufacture of jewellery to be exported. Thus, the rule read in its entirety clearly shows that unless both the conditions are satisfied namely condition to be complied by the selling dealers and the condition which has to be complied with by the purchasing dealer such exemption is not available. As held by the Hon ble Supreme Court, the Constitution Bench of the Hon ble Supreme Court in CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33A to that of the rule itself. The intention, the object and the purpose of such exemption cannot be interpreted by referring to Rule 26A which operates in entirely different field. Further we reiterate that sub rule (3) of Rule 33A imposes a mandate on the selling dealer to produce a form of certificate to be signed by the purchasing dealer who has also to be registered in the State of West Bengal, affirming that the gold purchased by him from the selling dealer registered in West Bengal has been used in manufacture of jewellery in the State of West Bengal and exported out of India. Full particulars of the purchases effected have to be furnished. Therefore, we find there is absolutely no inconsistency nor the form is contrary to the Rule 33A rather the form is part of the rule itself. The decision in Patina Gold Ornaments is clearly distinguishable on facts as in the said case the relief sought was to forbear the official respondent from relying on the provisions of the Sections 19(2) (ii) and Section 19 (4) of the Tamil Nadu Value Added Tax Act, 2006 or recover input tax credit under Section 27 (2) of the said Act in respect of purchase of inputs entrusted to a job work outsid ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
