2020 (1) TMI 887 - HC - VAT and Sales Tax

Benefit extended to the petitioner under an agreement of deferral of sales tax liability - manufacture for Parle on job work/contract basis - Department was of the view that the shift from commercial production for its purposes to job work for a third party, constituted a breach of the terms of the deferral - meaning of the expression for use by him in the manufacture or processing of goods for sale . Whether this phrase limited/restricted the application of the provision to those goods manufactured and sold by the registered dealer using goods purchased against his certificate of registration or whether it also included those goods manufactured by the dealer using materials supplied by a third party under job work, where the goods finally manufactured were sold by such third party? - HELD THAT - The Revenue argues that the use of the word normal in relation to production means that such production has to be only by the assessee availing the deferral. I do not agree. The term normal production has to be read qua the production capacity and not qua the entity - Thus, a proper understanding of clause 9, in my view, is that production qua installed capacity in the factory should not stand interrupted for a period exceeding six months failing which, the entire tax deferred would become recoverable in one lump sum. Admittedly, in this case production has not stopped at all, but has continued consistently over the tenure of the deferral. This is a case were the benefit of deferral has itself been availed by the petitioner only for the period till production for Parle commenced. Thereafter there is no question of deferral, since there is no sale by the assessee and thus no liability to tax. The only consequence of the job work undertaken in the present case is that the tenure of deferral has been reduced from six to two years. Thus, applying the ratio of the judgments of the Full Bench of the Supreme Court in ASSESSING AUTHORITY-CUM-EXCISE AND TAXATION OFFICER, GURGAON AND ANOTHER VERSUS EAST INDIA COTTON MFG. CO. LTD. 1981 (7) TMI 205 - SUPREME COURT , Division Bench in COMMERCIAL TAXES OFFICER, JODHPUR VERSUS VISHNU METALS 2006 (11) TMI 200 - SUPREME COURT as well as the circular issued by the State setting out the spirit and intendment of the Sales tax deferral Scheme in context, these writ petitions are allowed. Petition allowed.

Summary

Issues Involved:
1. Validity of the cancellation of sales tax deferral benefit.
2. Interpretation of the eligibility criteria for sales tax deferral.
3. Impact of change in business operations on the deferral scheme.
4. Compliance with the terms of the deferral agreement.
5. Applicability of relevant Supreme Court judgments.

Detailed Analysis:

1. Validity of the Cancellation of Sales Tax Deferral Benefit:
The petitioner challenged the order dated September 22, 2005, which canceled the sales tax deferral benefit extended under an agreement dated April 15, 2002. The petitioner had set up a unit for biscuit manufacturing and availed of the deferral benefit offered by the Government of Tamil Nadu. An eligibility certificate was obtained, and an agreement was entered into with the Commercial Taxes Department. The deferral period and repayment schedule were clearly defined. The petitioner commenced commercial production on October 1, 2001, but due to business challenges, entered into an agreement with Parle Products Private Limited to manufacture biscuits on a job work/contract basis.

2. Interpretation of the Eligibility Criteria for Sales Tax Deferral:
The petitioner argued that the arrangement with Parle did not affect its entitlement to the deferral benefit as it had engaged in independent commercial production initially. The Department, however, viewed the shift to job work for a third party as a breach of the deferral terms, leading to the notice demanding the entire tax for the period of commercial production.

3. Impact of Change in Business Operations on the Deferral Scheme:
The Department contended that the deferral benefit was based on the turnover from the first sale of biscuits by the petitioner itself, and any shift in business operations to job work for a third party was not contemplated. The petitioner maintained that the eligibility certificate and agreement did not prohibit such an arrangement. The court noted that the spirit and object behind the sales tax deferral scheme were to encourage industries in Tamil Nadu, particularly in backward taluks.

4. Compliance with the Terms of the Deferral Agreement:
The court examined the terms of the deferral agreement, particularly clauses 1 and 9, which did not explicitly restrict the production to the petitioner alone. The term "normal production" was interpreted to mean production capacity rather than the entity itself. The court found that the production had not stopped and continued consistently over the deferral period.

5. Applicability of Relevant Supreme Court Judgments:
The court referred to the Supreme Court judgment in Assessing Authority-cum-Excise and Taxation Officer, Gurgaon v. East India Cotton Mfg. Co. Ltd., which interpreted the scope of concessional tax rates for inter-State trade. The judgment supported the view that the benefit of concessional tax rates applied to both production for sale by the dealer and production for sale by others. Similarly, the Rajasthan High Court's interpretation in Commercial Taxes Officer, Jodhpur v. Vishnu Metals was considered, which allowed tax exemption for job work performed for third parties. The Supreme Court's confirmation in Vishnu Metals was also noted, emphasizing the relationship between the incentive and the goods manufactured.

The court concluded that the facts and legal positions in the present case were analogous to the cited judgments. The interpretation of the deferral scheme did not restrict the benefit to production solely by the petitioner. Consequently, the writ petitions were allowed, and the orders dated September 22, 2005, and September 30, 2005, were set aside. No costs were imposed, and connected miscellaneous petitions were closed.