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EXCISE AND TAXATION OFFICER

High Court of Punjab and Haryana, Chandigarh

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Excise and Taxation Officer-cum-Assessin v. M/s T.R.Solvent Oils Pvt. Limited, Dunds - CWP-14869-2006 [2006] RD-P&H 10173 (9 November 2006)

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

****

C.W.P. No.14869 of 2006

Date of Decision:3.11.2006

Excise and Taxation Officer-cum-Assessing Authority, Faridabad (West)

.....Petitioner

Vs.

M/s T.R.Solvent Oils Pvt. Limited, Dundsa (Palwal) Mathura Road, Faridabad and another .....Respondents

CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL
HON'BLE MR. JUSTICE RAJESH BINDAL

Present:- Ms. Ritu Bahri, DAG, Haryana for the petitioner.

Mr. Avnish Jhingan, Advocate for the respondents.

****

ADARSH KUMAR GOEL, J.

Preliminary objection regarding availability of alternative remedy has necessitated the passing of this order in a writ petition filed by the Excise and Taxation Officer-cum-Assessing Authority, Faridabad(West) challenging the order dated 29.6.2005 passed by the Haryana Tax Tribunal, Chandigarh in an appeal filed by respondent No.1 (hereinafter referred to as `the dealer') against the clarification issued by the State under Section 56(3) of the Haryana Value Added Tax Act, 2003 (for short, `the Act').

Briefly the facts of the case are that respondent No.1 set up an industrial unit for extraction of Solvent Oil and de-Oiled cakes. It is duly registered under the provisions of the Act. Finding it difficult to ascertain as to under which entry the goods manufactured by the petitioner fall, the petitioner sought clarification from the Financial Commissioner and Principal Secretary to Government of Haryana, Excise and Taxation Department under Section 56(3) of the Act which was duly given vide order dated 24.7.2004 holding therein that the goods manufactured by the Dealer would fall under Entry No.6 in Schedule "C" to the Act and the rate of tax applicable on the goods would be 4%.

Aggrieved against the order, the dealer filed statutory appeal under Section 56(5) of the Act before the Tribunal which, as required under the Act was heard by the Full Member Tribunal and while accepting the plea raised by the dealer, the Tribunal set aside the order passed by the Financial Commissioner and Principal Secretary to Government of Haryana and held that "Castor de-oiled cake (b) Neem de-oiled cake and (c) Mahua de-oiled cake" is organic manure falling under Entry No.27 of Schedule `B' to the Act and accordingly tax free. It is this order of the Tribunal which is being impugned by the petitioner in the present writ petition. On notice having been issued, counsel for the dealer has put in appearance and raised a preliminary objection regarding entertainment of the petition in view of effective alternative remedy of reference being available under Section 36 of the Act.

We have heard Ms. Ritu Bahri, learned Deputy Advocate General, Haryana for the petitioner and Shri Avnish Jhingan, Advocate for the dealer.

Before filing the reply to the writ petition, counsel for the dealer raised a preliminary objection about the maintainability of the writ petition. He submitted that Section 36 of the Act provides for a remedy of reference against the orders passed by the Tribunal and the remedy of reference being available to the petitioner against the order passed by the Tribunal, a writ petition should be dismissed on that score alone. While relying upon the provisions of Rule 68 of the Haryana Value Added Tax Rules, 2003, it was submitted that the order passed by the Tribunal even under Section 56(3) of the Act is treated to be an order passed under Section 33 of the Act and accordingly the remedy of reference would be available. Learned counsel appearing for the State replying to the objections raised by the counsel for the dealer, submitted that against an order passed by the Full Member Tribunal under Section 56(3) of the Act, the petitioner does not have any remedy of reference under Section 36 of the Act.

Before we deal with the respective contentions, we deem it appropriate to extract relevant provisions of the Act, hereunder:- SECTION - 33

(1) Any assessee considering himself aggrieved by an original order may prefer an appeal and the said appeal shall lie,- (a) if the order is made by any authority or officer who is lower in rank to Joint Excise and Taxation Commissioner, to the Joint Excise and Taxation Commissioner or such other officer as the State Government may, by notification in the Official Gazette, appoint;

(b) if the order is made by any authority or officer who is not lower in rank to Joint Excise and Taxation Commissioner, to the Commissioner or such other officer as the State Government may, by notification in the Official Gazette, appoint;

(c) if the order is made by the Commissioner to the Tribunal.

Note- An original order means an order passed under this Act except an order passed on appeal or on revision.

(2) Any order passed by a revising authority or an appellate authority other than the Tribunal shall be further appealable to the Tribunal by either side.

(3) The appellate authority shall not, for the first time, receive in evidence on behalf of either side in any appeal, any account, register, record of document, unless for reasons to be recorded in writing, it considers, that such account, register, record or document is genuine and that the failure to produce the same before the authority below or being the same on record was for reasons beyond the control of the party which is producing the same.

(4) Every order passed by the Tribunal on appeal shall, subject to the provisions of section 35 and section 36, be final.

(5) No appeal preferred by an assessee to an appellate authority shall be entertained unless it is filed within sixty days from the date of the order appealed against and the amount of tax and interest admitted by the appellant to be due as a result of the said order has been paid by him.

(6) No appeal preferred to the Tribunal by any authority under the Act shall be entertained unless filed under sub-section (2) within a period of one hundred eighty days from the date of the order appealed against.

(7) The period specified in sub-section (5) or (6) for filing an appeal shall, in the case of an appeal from any order copy of which has to be supplied by the appropriate authority to the appellant, commence from the date of the supply of the copy of the order to the appellant or his authorised agent, and in the case of an appeal from any other order passed under this Act or the rules made thereunder, the time spent in obtaining the certified copy of the order shall be excluded in computing the said period.

(8) Subject to regulations made by the Tribunal under sub- section (15) of section 57 and subject to such rules of procedure as may be prescribed in relation to an appellate authority other than the Tribunal, an appellate authority may pass such order on appeal as it deems to be just and proper including an order enhancing the amount of tax or penalty or interest or all under this Act but in no case it shall stay recovery of the amount due against the appellant as a result of the order appealed against.

SECTION 35

(1) Any person including an authority under this Act considering himself aggrieved by an order of the Tribunal and who, from the discovery of any new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when such order was made, or on account of some mistake or error of law or facts, desires to obtain a review of the order made against the State or him, may apply for a review of such order to the Tribunal.

(2) The application for review shall be preferred within one year from the date of the order sought to be reviewed in the manner prescribed and where the application is preferred by an assessee it shall be accompanied by such fee not exceeding five hundred rupees, as may be prescribed.

(3) The Tribunal of its own accord after giving notice to the parties concerned, review on account of some mistake or error of law or facts, any order made by it before the expiry of eight years from the date of the order.

SECTION 36

(1) Within sixty days from the passing of an order under section 33 or section 35 by the Tribunal affecting any liability of any dealer to pay tax under this Act, such dealer or the Commissioner may, by an application in writing, accompanied by a fee of five hundred rupees in case the application is made by a dealer, require the Tribunal to refer to the High Court any question of law arising out of such order: Provided that for the purposes of calculating the period of sixty days the period spent in obtaining the copy of the order shall be excluded.

(2) If for the reasons to be recorded in writing, the Tribunal refuses to make such reference, the applicant may within ninety days of such refusal either -

(a) withdraw his application (and if he does so, the fee paid shall be refunded); or

(b) apply to the High Court against such refusal.

(3) If upon the receipt of an application under clause (b) or sub- section (2), the High Court is not satisfied of the correctness of the decision of the Tribunal, it may require the Tribunal, to state the case and refer it, and on the receipt of such requisition, the Tribunal shall state and refer the case accordingly.

(4) If the High Court is not satisfied that the statements in a case referred to under this section are sufficient to enable it to determine the question raised thereby, it may refer the case back to the Tribunal to make such additions thereto or alterations therein as the Court may direct in that behalf.

(5) The High Court upon the hearing of any such case shall decide the question of law raised thereby, and shall deliver its judgement thereon containing the grounds on which such decision is founded and shall send to the Tribunal a copy of such judgement under the seal of the Court and the signature of the Registrar, and the Tribunal shall dispose of the case accordingly.

(6) Where a reference is made to the High Court under this section the cost shall be in the discretion of the Court.

(7) The payment of the amount, if any, of the tax due in accordance with the order of the Tribunal, in respect of which an application has been made under sub-section (1), shall not be stayed pending the disposal of such application or any reference made in consequence thereof, but if such amount is reduced as result of such reference, the excess tax paid shall be refunded in accordance with the provisions of section 20.

SECTION 56(3,4 & 5)

(3) The State Government may, if it considers it necessary or expedient so to do, for the purpose of maintaining uniformity in he levy, assessment and collection of tax or for the removal of any doubt, suo motu or on an application made to it in the prescribed form and manner on payment of the prescribed fee by a dealer or a body of dealers, issue an order clarifying any point relating to levy, assessment and collection of tax and all persons employed in the administration of this Act except an appellate authority, and all dealers affected thereby shall observed and follow such order.

(4) Every order issued under sub-section (3) shall be publicised simultaneously by uploading on the website www.haryanatax.com under the head "VAT orders".

(5) If any person feels aggrieved by an order publicized under sub-section (4), he may at any time prefer an appeal against such order to the Tribunal and for this purpose the order shall be deemed to be an order passed under this Act: Provided that where an appeal is preferred against such order to the Tribunal, it shall be heard and decided by the full-member Tribunal.

RULE 68

(1) The State Government may, if it considers it necessary or expedient so to do, for the purpose of maintaining uniformity in the levy, assessment and collection of tax or for the removal of any doubt, issue an order clarifying any point relating to levy, assessment and collection of tax and all persons employed in the administration of the Act except an appellate authority, and all dealers shall observe and follow such order.

(2) A dealer or a body of dealers may, at any time, by making an application to the State Government in Form VAT-M4 accompanied with court fee stamps of five hundred rupees, seek clarification on an important issue relating to the levy, assessment and collection of tax under the Act which has not been settled by an order of the Tribunal or the law declared by the High Court or the Supreme Court.

All persons employed in the administration of the Act except an appellate authority, and all dealers shall observe and follow the order issued by the State Government clarifying the issue.

(3) Every order issued by the State Government under sub-rule (1) or subrule (2) shall be publicised immediately after issue by uploading on the website www.haryanatax.com under the head "VAT orders".

(4) If any person feels aggrieved by an order issued by the Government and publicised in the manner laid down in sub- rule (3), he may at any time prefer an appeal against such order to the Tribunal as if the order is an appealable order passed under the Act and procedure for filing appeal except for limitation shall be same as laid down in Chapter VII for filing appeal before the Tribunal.

(5) When an appeal is preferred to the Tribunal by any person under sub-rule (4), it shall be heard and decided by the full- member Tribunal and if a prayer is made by the appellant for stay of operation of the order appealed against, the Tribunal may after hearing the State representative pass such order as it may deem fit and if a stay is granted, the appeal shall be heard and decided within a period of sixty days from the date of the order granting the stay.

Section 56 of the Act is a special provision under the Act providing for administration of tax which is a kind of advance ruling. The provision has been inserted in the Act as a matter of statutory right to any dealer to get an issue clarified in advance. This right can be availed of on payment of fee prescribed for the same and further it is provided for under Section 56(5) of the Act that any person aggrieved against an order passed and publicised under Section 56(4) may prefer an appeal against such order to the Tribunal. It is further provided therein as a special condition that such an appeal is to be heard and decided by a Full Member Tribunal. This being a special provision under the Act providing a separate special remedy and procedure for filing and hearing of appeals against the orders passed under Section 56 of the Act, the normal procedure available under the Act is not applicable and any order passed under Section 56 of the Act cannot in any manner termed to be an order passed under Section 33 of the Act. The remedy of reference under Section 36 of the Act being available only against the orders passed under Sections 33 and 35 of the Act by the Tribunal, the writ petition filed by the petitioner cannot be thrown out at the admission stage on the preliminary objection raised by the petitioner. As far as applications of Rule 68(4) of the Rules regarding procedure for filing the appeals under the Act is concerned, it is suffice to state that mere adoption of the procedure for appeals will not term an order passed under Section 56 of the Act to be an order passed under Section 33 of the Act. Two distinctions, as enumerated hereinafter clearly establish that Section 56 of the Act is a departure from the normal rule as far as appeals are concerned and is an independent provision, i.e., firstly, there is no time limit provided for filing of appeals under Section 56 and secondly by operation of law, any appeal filed under Section 56 of the Act is to be heard and decided by a Full Member Tribunal only whereas there is no such legal binding under the normal procedure for appeals, where in terms of Section 57(3) of the Act matter referred to be heard by a Full Member Tribunal only on a difference of opinion amongst the members constituting the Bench.

Accordingly, an order passed under Section 56 of the Act cannot in any manner termed to be an order passed under Section 33 or Section 35 of the Act. That being so, the remedy of reference under Section 36 of the Act will not be available to the petitioner against an order passed under Section 56 of the Act.

Finding no merit in the preliminary objection raised by the petitioner, the same is rejected. The writ petition is ordered to be considered on merits.

( ADARSH KUMAR GOEL )

JUDGE

November 3, 2006 ( RAJESH BINDAL )

renu JUDGE


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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