TMI Blog2023 (9) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment was binding on the Excise and Taxation Commissioner because the said letter dt. 20.07.2001 was addressed by the Government to the Excise and Taxation Commissioner, Himachal Pradesh only. It is not open to Excise and Taxation Commissioner to take a different stand as he is supposed to have done in the alleged letter dt. 20.01.2003, as stated by the Assistant Excise and Taxation Commissioner, Himachal Pradesh in his letter dt. 30.01.2003 - In fact, the request of the petitioner for supply of the proceedings dt. 20.01.2003 of the Excise and Taxation Commissioner under the Right to Information Act, 2005, has been returned on 18.07.2017 saying that said letter is not even available in the office of Deputy Excise and Taxation Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducts under the Himachal Pradesh (Taxation on Certain Goods carried by Road) Act, 1999 (for short the Act ) and he was paying tax at the Gagrate Barrier on Kattha . 3) Originally under the Act, Road Tax on Kattha was leviable under the provisions laid down therein in item No. 15(b) of the 1st Schedule. 4) Thereafter, the Government of Himachal Pradesh issued a notification dt. 09.12.1999 amending the said item, and under sub-item (vi) of item No. 15, tax on Kattha under the Act was levied. 5) Again item No. 15(vi) of the Schedule-I was further amended by notification dt. 17.01.2002, and new sub-item (ix) was added specifying rate of road tax on Kattha and Cutch separately. While the rate of road tax for Kattha was fixed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner contended that denial of refund by the respondents of the amount of Rs. 40,48,125/- collected as road tax on Cutch during the period 13.11.2000 to 28.12.2001 is illegal because Cutch was not a taxable item prior to 17.01.2002 and could not have been subjected to any tax by the respondents. He also pointed out that the Assistant Excise and Taxation Commissioner, in his letter dt. 30th January, 2003 had referred to a letter dt. 20.01.2003 of the Excise and Taxation Commissioner, Himachal Pradesh for rejecting the claim of petitioner for refund, but when the petitioner applied for the same under the provisions of the Right to Information Act, 2005, on 23.05.2017, the same was returned on 18.07.2017 by the office of Deputy Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has uses. It is generally used as a dyeing or tanning material but also for mouth freshness medicines. As per information available the price of Katha can range between Rs. 250-400/- per kg, and that of Kutch from Rs. 525/- per K.G. in view of this huge price differential, therefore, it would obviously not be in order to impose the same rate of tax on both. In view of the above, it is apparent that the term Kutch is quite distinct from Katha and taxing both at the same rate is quite unfair especially in view of the wide variations in prices of both. Since the CGT Act mentions the term 'Katha' only as a taxable commodity, including 'Kutch' as a variety of Katha is not appropriate and therefore the 'Kutch' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttha was taxable because Kattha in wider sense include Cutch also. He stated that Cutch was also taxable before 17.01.2002 and that was stated in the letter dt. 30.01.2003 by Assistant Excise and Taxation Commissioner stating that Kattha in its wider term include Cutch also. He also placed reliance on the judgment of Hon ble Supreme Court in State of Madhya Pradesh Versus S.P. Sales Agencies and Others (2004) 4 SCC 448 13). The said case arose under the Forest Act, 1927 and observations were made in the said judgment that Cutch and Kattha come within the sweep of the expression catechu , which has been enumerated in the definition of forest produce and as such Kattha and Cutch are forest produce within the meaning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he refund on the view that the Excise and Taxation Commissioner, H.P. had rejected the refund on 20.01.2003. But there is no such letter made available to petitioner under the Right to Information Act, 2005. He ought to have followed Annexure P-2 letter dt. 20.07.2001 of the Commissioner-cum-Secretary (Excise and Taxation) to the Government of Himachal Pradesh to the Excise and Taxation Commissioner, Himachal Pradesh, Shimla-09, clearly pointing that Cutch and Kattha are different and same rate of tax cannot be levied on both as the same is binding on him and would prevail over the letter dt. 20.1.2003 allegedly issued by the Excise and Taxation Commissioner, Himachal Pradesh, Shimla-09 . 18) In this view of the matter, we set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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