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2014 (4) TMI 449 - HC - VAT and Sales TaxSetting off of excise duty under Notification No. A-5-11-78(23)ST-V - Section 12 of Sales Tax Act- Granting of Reference u/s 44 of MP General Sales Tax - Notice could not be served for 15 years Held that - The liability to pay entry tax was by virtue of the provisions of the Act and that the amount, namely 2.5% was exempted by virtue of the Notification issued u/s 12 of the Sales Tax Act No question of law involved - Interference into the matter not required now when the respondent is not being served and his whereabouts are unavailable - Decided against revenue.
Issues:
1. Failure to serve notice to the respondent in a Reference case pending since 1999. 2. Interpretation of Notification No. A-5-11-78(23)ST-V dated 8.10.78 regarding set off percentage. 3. Application of exemption and set off provisions under the MP General Sales Tax Act, 1958. 4. Consideration of a previous judgment by the High Court on a similar issue. 5. Finality of the decision based on a previous Division Bench judgment. Issue 1: Failure to serve notice to the respondent The High Court noted that despite the Reference being pending since 1999, the respondent had not been served with notice, and their whereabouts were unknown. Repeated opportunities granted to the State Government to serve the notice had been unsuccessful, raising concerns about due process and the respondent's right to be heard. Issue 2: Interpretation of Notification No. A-5-11-78(23)ST-V dated 8.10.78 The case involved a question on whether the dealer was eligible to set off excise duty at 2.5% instead of 2%, as per the mentioned notification. The Board of Revenue, in its order from 1995, found that the dealer, even if not paying tax, could still avail the set off at 2.5% based on a High Court judgment. The benefit was granted due to an exemption provided in the notification applicable to the dealer. Issue 3: Application of exemption and set off provisions The Court referred to a previous case involving a similar issue where the exemption granted by the State Government allowed the dealer to avail the set off at a higher rate, even if not actually paying the tax. The Court emphasized that denying the set off would render the exemption provision ineffective and defeat the purpose of incentivizing certain classes of dealers. Issue 4: Consideration of a previous judgment The judgment by the Board of Revenue was based on a Division Bench decision of the High Court, which had already attained finality. Given the precedent set by the previous judgment and the unavailability of the respondent for service, the Court found no legal question warranting interference in the matter and subsequently rejected the Reference. Issue 5: Finality of the decision based on a previous Division Bench judgment The Court concluded that since the decision was in line with a previous Division Bench judgment that had already been finalized, there was no legal basis to overturn the decision, especially in the absence of serving the respondent and uncertainty regarding their whereabouts. Consequently, the Reference was rejected based on the existing legal precedent and procedural limitations.
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