2016 (3) TMI 1152 - HC - VAT and Sales Tax

Tax exemption on sale - SSI unit - industrial unit of the dealer is a pulverising unit - It has been stated that pulverising units have become ineligible to avail of tax exemption vide Finance Department N/N. 19194/CTA-72/ 92F, dated April 28, 1998 and in the footnote of the said notification it has been stated that the industrial units which are set-up and in receipt of incentives under the notification of Government of Orissa in Finance Department No. 27662 CTA-56/90F dated August 16, 1990 will continue to the said incentives - whether the petitioner is entitled for exemption from payment of tax for the periods from 1994 to 1997 and consequently for refund of the amount already paid? Held that - In the impugned order dated February 20, 2007 (annexure 9) passed by the Commissioner of Sales Tax, Cuttack (O. P. No. 1), it is abundantly clear that SSI unit of the petitioner was spice making unit but subsequently used pulverizer to prepare spices but the finished products remained the same and the sales tax imposed is exempted on the finished products which do not undergo any change. The appellate authority has also gone into the depth of the interpretation of the industrial unit and also other aspects of the case to unveil the real truth. It is clear from the impugned order that IPR-1989 is not at all applicable to the facts of the case of the present petitioner and his case is governed under IPR-1986 and IPR-1986 is clear to the effect that the incentive can be availed of for exemption of the payment of sales tax for a period of five years and it has been availed of as observed in the impugned order, that is from April 14, 1989 to April 13, 1984. So far as the footnote to the notification dated April 28, 1992 (annexure 12) is concerned, the exemption will not be available to the petitioner as the said industrial unit of the petitioner is not covered under IPR-1989. The present petitioner being a spice making unit is only eligible for exemption for a period of five years from the date of manufacture and it cannot avail of the exemption for the years 1994-95, 1995-96 and 1996-97 - Since the dispute for 1996-1997 is not raised before us, we limit this order to the period of 1994-95 and 1995-96. On the other hand, the refund availed of by the petitioner for these two years on the pretext of such notification, is illegal and the impugned order under annexures 8 and 9 are legal and proper. Petition dismissed - decided against petitioner.

Issues Involved:
1. Eligibility for sales tax exemption under IPR-1986 and IPR-1989.
2. Validity of the suo motu revision proceedings initiated under Section 23(4)(a) of the OST Act.
3. Legality of the demand for tax payment for the periods 1994-95, 1995-96, and 1996-97.
4. Appropriateness of the exemption period granted to the petitioner.

Issue-Wise Analysis:

1. Eligibility for Sales Tax Exemption:
The petitioner, a small-scale industrial unit, claimed sales tax exemption under the Industrial Policy Resolution (IPR) 1986. The petitioner started commercial production on April 14, 1989, and was initially granted a five-year exemption. The petitioner argued that this exemption should be extended to seven years based on a subsequent notification dated August 16, 1990, which allowed a seven-year exemption for certain industries under IPR-1989. However, the court noted that the petitioner’s unit was primarily a spice-making unit, which was ineligible for such an extended exemption under IPR-1989. The court emphasized that the petitioner’s unit, despite using a pulverizer, remained a spice-making unit and thus did not qualify for the extended exemption period.

2. Validity of the Suo Motu Revision Proceedings:
The court examined the suo motu revision proceedings initiated by the Assistant Commissioner of Sales Tax under Section 23(4)(a) of the OST Act. The petitioner contended that these proceedings were illegal and arbitrary. However, the court found that the revision was initiated correctly to rectify the erroneous exemption granted beyond the permissible period. The court upheld the legality of the suo motu revision, noting that the petitioner’s unit was not eligible for the extended exemption period under IPR-1989.

3. Legality of the Demand for Tax Payment:
The petitioner challenged the demand for tax payment for the periods 1994-95, 1995-96, and 1996-97, arguing that the exemption should cover these years. The court, however, found that the petitioner’s unit was only entitled to a five-year exemption under IPR-1986, which expired on April 13, 1994. Consequently, the demand for tax payment for the subsequent years was deemed legal and proper. The court affirmed the orders demanding the petitioner to pay back the refund received for these periods.

4. Appropriateness of the Exemption Period:
The court analyzed whether the petitioner was entitled to an extended exemption period of seven years. It concluded that the petitioner’s unit, being a spice-making unit, was not eligible for the extended exemption under IPR-1989. The court emphasized that the petitioner’s unit did not qualify for the additional two years of exemption, as the unit was not covered under IPR-1989 but under IPR-1986, which only allowed a five-year exemption. The court affirmed the orders passed by the assessing officer and the Commissioner of Sales Tax, rejecting the petitioner’s claim for an extended exemption period.

Conclusion:
The court dismissed the writ petition, affirming that the petitioner’s unit was only eligible for a five-year exemption from the date of commercial production and could not avail of the exemption for the years 1994-95, 1995-96, and 1996-97. The court upheld the legality of the demand for tax payment and the suo motu revision proceedings, concluding that the petitioner’s claims were not supported by the applicable industrial policies and notifications.

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