2015 (6) TMI 1101 - HC - VAT and Sales Tax

Rectification application u/s 37 - carpet - exemption from tax - unaccounted stock of carpet - An application u/s 37 was moved prima facie on the plea that order u/s 72(3) of compounding the case was not proper and that a mistake apparent on the face of record has crept in and it needs rectification - Whether the carpets manufactured by the petitioner are not exempt from tax as per the judgment of Supreme Court in Ess Dee Carpet Enterprises v. Union of India 1989 (12) TMI 353 - SUPREME COURT decided on December 7 1989? - Held that - rectification implies the correction of an error or removal of defects or imperfections and could not be used to appreciate the evidence of new facts which were not placed earlier. Rectification implies an error mistake or defect which after rectification is made right. The order dated August 16 1997 attained finality and at least there was no mistake apparent under section 37 in the order dated August 16 1997 which needed rectification and this was rightly rejected by the assessing officer. The assessee in the garb of application under section 37 in fact wanted review of the order which is impermissible. Reliance was placed upon the judgment rendered in the case of Ess Dee Carpet Enterprises v. Union of India 1989 (12) TMI 353 - SUPREME COURT which in my view is distinguishable and even does not touch upon the controversy in hand inasmuch as in that case the honourable apex court was considering matter relating to the Employees Provident Fund and Misc. Provision Act - Even the said judgment only speaks of textile and how carpet comes within the definition of textile has even not been pointed out by the counsel for the assessee during the course of arguments. Merely mentioning that carpet is a textile and is exempt does not bear out either from the record or from the submissions made by the counsel for the petitioner. Once the excess stock was found admitted by the assessee an application for composition (compounding) having been moved which was accepted and attained finality no mistake has been noticed at least in the order passed on August 16 1997 which in my view has rightly been rejected by the assessing officer and accordingly the present petition fails - decided against the Assessee.

Issues Involved:
1. Tax exemption on carpets.
2. Excess stock found during the survey.
3. Validity of approval memos for excess stock.
4. Imposition of penalty under section 77(8) of the RST Act.
5. Application for composition under section 72(3) of the RST Act.
6. Rectification application under section 37 of the RST Act.
7. Application of the Supreme Court judgment in Ess Dee Carpet Enterprises v. Union of India.

Detailed Analysis:

1. Tax Exemption on Carpets:
The primary issue was whether the carpets manufactured by the petitioner were exempt from tax as per the Supreme Court judgment in Ess Dee Carpet Enterprises v. Union of India. The court found that the judgment cited by the petitioner was distinguishable and did not directly address the taxability of carpets under the RST Act. The court noted that merely stating that carpets fall under the definition of "textile" and are exempt was insufficient without concrete evidence or legal backing.

2. Excess Stock Found During the Survey:
During the survey conducted on August 16, 1997, an excess stock of 5517.375 square feet of silk carpet was found. The petitioner claimed that 2974 square feet of this stock was received through approval memos, which required verification. Despite doubts about the approval memos, the assessing officer credited this amount, leaving 2543.375 square feet as unaccounted stock.

3. Validity of Approval Memos for Excess Stock:
The assessing officer expressed skepticism about the approval memos provided by the petitioner. However, for the sake of argument, even if the memos were accepted, there was still an excess of 2543.375 square feet of silk carpet. The court upheld the assessing officer's decision to treat this as undisclosed stock due to the lack of supporting purchase bills or material evidence.

4. Imposition of Penalty under Section 77(8) of the RST Act:
The assessing officer issued a notice under section 77(6) of the RST Act, proposing a penalty for the undisclosed stock. The petitioner was given an opportunity to explain and produce evidence but instead opted for compounding the offense. The court found that the procedure followed by the assessing officer was appropriate and provided adequate opportunity for the petitioner to present their case.

5. Application for Composition under Section 72(3) of the RST Act:
The petitioner voluntarily applied for composition under section 72(3) of the RST Act, admitting the offense and agreeing to pay the composition fee of Rs. 4,26,015. This amount was promptly deposited, and the proceedings were concluded. The court noted that this order became final and was not challenged by the petitioner, thus making it binding.

6. Rectification Application under Section 37 of the RST Act:
Almost a year later, the petitioner filed an application under section 37, seeking rectification of the order dated August 16, 1997. The petitioner argued that the initial order was improper and that principles of natural justice were not followed. The court held that section 37 allows for rectification of apparent mistakes but does not permit a review or reconsideration of the entire case. The court found no apparent mistake in the original order and concluded that the rectification application was an attempt to review the decision, which is impermissible under the Act.

7. Application of the Supreme Court Judgment in Ess Dee Carpet Enterprises v. Union of India:
The petitioner relied on the Supreme Court judgment in Ess Dee Carpet Enterprises to argue that carpets should be exempt from tax. However, the court found that this judgment pertained to the Employees Provident Fund and Miscellaneous Provisions Act and did not directly address the tax exemption status of carpets under the RST Act. The court concluded that the judgment was not applicable to the present case.

Conclusion:
The court dismissed the petition, upholding the assessing officer's decisions regarding the excess stock, the imposition of penalty, the voluntary composition application, and the rejection of the rectification application. The court found no justification for the petitioner's claims and ruled in favor of the Revenue, with no order as to costs.

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