2008 (6) TMI 551 - HC - VAT and Sales Tax

Benefits of the exemption denied - assessee is a public limited company engaged in the manufacture and sale of Portland Pozzalona cement - whether the revising authority viz. the Deputy Commissioner Commercial Taxes and the Tribunal were justified in setting aside the orders of assessment passed by the assessing authority for the assessment years in question who had simply followed the eligibility certificate issued by the Director of Industries and Commerce and the order of exemption from payment of tax passed by the Secretary Board of Revenue (Taxes)? Held that - Merely because petitioner s industrial unit uses the brand name of another person it does not mean that the petitioner s industrial unit is not manufacturing cement using fly ash and effecting sale of such cement both within the State as well as outside the State. Since the industrial unit fulfils all the conditions that are stated in S.R.O. Nos. 388/96 and 1729/93 the revisional authority/Deputy Commissioner of Commercial Taxes merely relying upon a decision which has no bearing whatsoever on the facts and circumstances of this case could not have initiated any proceedings for revising an order of assessment passed by the assessing authority for the two assessment years in question. Since we are granting relief to the petitioner on the first issue itself we need not have to consider the other issues canvassed by the learned senior counsel Sri Joseph Vellappally. In that view of the matter the revision petitions requires to be allowed and the questions of law framed by the assessee require to be answered in favour of the assessee and against the Revenue.

Summary

Issues Involved:
1. Applicability of sales tax exemption for manufacturing cement using fly ash.
2. Validity of revisional proceedings initiated by the Deputy Commissioner of Commercial Taxes.
3. Interpretation of the exemption notification and its conditions.
4. Jurisdiction of the Deputy Commissioner to cancel assessment orders.
5. Relevance of the Supreme Court's decision in Hira Cement's case.
6. Tribunal's authority to raise new issues suo motu.

Detailed Analysis:

1. Applicability of Sales Tax Exemption for Manufacturing Cement Using Fly Ash:
The assessee, a public limited company engaged in the manufacture and sale of "Portland Pozzalona cement," applied for sales tax exemption under S.R.O. No. 388/96, which grants exemption to industrial units using fly ash as a raw material. The Director of Industries and Commerce issued an eligibility certificate, and the Secretary, Board of Revenue (Taxes), granted the exemption, confirming the assessee's eligibility for the period from October 14, 1995, to October 13, 2002, with a total exemption amount of Rs. 40,23,32,660.

2. Validity of Revisional Proceedings Initiated by the Deputy Commissioner of Commercial Taxes:
The Deputy Commissioner initiated suo motu revisional proceedings under section 35 of the KGST Act, challenging the exemption on the grounds that the assessee sold cement under the brand name of ACC Cements, which was contrary to the conditions of the exemption. The revising authority relied on the Supreme Court's decision in Commissioner of Central Excise, Raipur v. Hira Cement [2006] 145 STC 264, which stated that exemption is not applicable if goods are manufactured with the brand name of another.

3. Interpretation of the Exemption Notification and Its Conditions:
The court emphasized that the notification S.R.O. No. 388/96 provides tax exemption to industrial units manufacturing cement using fly ash generated in the State. The notification does not impose any condition regarding the brand name under which the cement is sold. The court held that the exemption notification should be liberally construed once its applicability is established.

4. Jurisdiction of the Deputy Commissioner to Cancel Assessment Orders:
The court found that the Deputy Commissioner had no jurisdiction to initiate revisional proceedings solely based on the use of a brand name, as the exemption was granted based on the eligibility certificate and the order of exemption issued by the Secretary, Board of Revenue (Taxes). The Tribunal's finding that the Deputy Commissioner could cancel the assessments without interfering with the exemption order was deemed incorrect.

5. Relevance of the Supreme Court's Decision in Hira Cement's Case:
The court held that the decision in Hira Cement's case was inapplicable to the present case. Hira Cement dealt with excise duty exemption under a different notification, which specifically excluded goods manufactured with another's brand name. The KGST notification did not contain such a condition.

6. Tribunal's Authority to Raise New Issues Suo Motu:
The Tribunal, while rejecting the assessee's appeals, directed the assessing authority to examine whether there was actual use of fly ash after June 1, 1999, despite this issue not being raised in the appeals. The court found this action by the Tribunal to be beyond its jurisdiction.

Conclusion:
The court allowed the revision petitions, set aside the orders passed by the revisional authority and the Tribunal, and restored the assessment orders for the years 1999-2000 and 2000-01. The court concluded that the assessee was entitled to the sales tax exemption as per the eligibility certificate and the order of exemption, and the revisional proceedings initiated by the Deputy Commissioner were unjustified.