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TMI Blog2009 (3) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... , for the respondents. S. Ganesh and Shyam Divan, Senior Advocate, (M.K. Dua, Gopal Jain, Ms. Nandini Gorc, Ms. Sonia Nigam, Kartik Bhatnagar and Mrs. Manik Karanjawala, Advocates, with them) for the appellant. -------------------------------------------------- The judgment of the court was delivered by S.B. SINHA J. Leave granted. These two appeals arising out of a judgment and order dated November 2, 2007 See page 475 supre. rendered by the High Court of Jharkhand at Ranchi in Writ Petition (T) No. 4693 of 2005 were taken up for hearing together and are being disposed of by this common judgment. The factual matrix involved is not in dispute. M/s. Tata Iron Steel Company Limited (TISCO) produces steel. For the said purpose, it purchases oxygen gas from B.O.C. India Ltd. (BOC), the producer and supplier, for industrial and medical use. BOC began supply of oxygen gas to TISCO from the year 1993. Indisputably, TISCO applied for and was granted a registration certificate in terms of the provisions of section 13(1)(b) of the Bihar Finance Act, 1981 (hereinafter called and referred to as "the Act"). The said certificate originally was granted on March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt and the Rules made thereunder: Provided also that where a dealer carries on any business of sale or purchase of goods, in violation of the express and specific provisions of any law of the State or the Union, then notwithstanding anything to the contrary contained in this Part and without prejudice to his liability to pay tax, the prescribed authority shall refuse to grant him a registration certificate. . . . 54.. Furnishing of information by dealers. If any dealer liable to pay tax under this Part (a) disposes of his business or any part of his business, whether by sale or otherwise, or (b) acquires any business or part of any business, whether by purchase or otherwise, or (c) effects any other change in the ownership or constitution of the business, or (d) discontinues his business or shifts his place of business, or (e) changes the name, style or nature of his business or effects any change in the class or description of goods which he sells, or (f) starts a new business or joins another business either singly or jointly with other persons, or (g) effects any change in the particulars furnished in an application made under section 14 or declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificate in form VIA or VIB, as the case may be. (b) On receipt of an application in form IV, if the Joint Commissioner of the Division, after verification of the particulars furnished by the applicant, or after making or causing to be made such enquiry as he may deem necessary, is satisfied that the application is in order he shall, subject to the provisions of clause (a) of sub-rule (6), grant to the applicant a certificate in form VIC. A copy of the certificate so granted shall also be sent forthwith to the Commercial Taxes Officer in-charge of the sub-circle, if the business is intended to be established within the local limits of a sub-circle, and to the Deputy Commissioner or Assistant Commissioner or Commercial Taxes officer in-charge of the Circle in other cases." In terms of the said Rules, application for grant of certificate is to be filed in form III wherein, inter alia, particulars of the goods which the dealer may be permitted to purchase at special rate of tax in terms of clause (b) or c) of sub-section (1) of section 13 of the Act are required to be shown. A registration certificate is granted in terms of form VIB. Clause (3) whereof reads as under: "(3) Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectified by BOC in terms of the said notification dated February 3, 1986 charging two per centum sales tax on the supplies of oxygen gas made to TISCO. TISCO issued a declaration in terms of form IX of the Rules. BOC also deposited tax at the rate of two per cent on the sale of industrial gases to TISCO. The Deputy Commissioner of Commercial Tax issued a notice to BOC on or about April 20, 2005, stating: "It is informed that you have deposited tax at two per cent on the sale of industrial gases to M/s. TISCO Ltd. Because the honourable Supreme Court has dismissed the SLP (C) No. 15419/2004, filed on your behalf, vide order dated March 30, 2005. Hence, you are directed to produce the evidence before the undersigned of deposit of the balance admitted tax of Rs. 1,02,45,572 by May 20, 2005, otherwise the proceedings for imposition of penalty will be initiated against you under section 16(9) of the Bihar Finance Act, 1981 as adopted by Jharkhand." Another notice dated June 29, 2005 was also issued, stating: "In spite of informing you by this office's letter No. 188 dated April 20, 2005 the balance amount of Rs. 1,02,45,572 being admitted tax has not been deposited by you till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized to purchase at the concessional rate of three per cent and not at the rate of two per cent and, thus, the demand made by the respondent was unassailable, the selling dealer being bound by the certificate granted to it under section 13(1)(b) of the Act. It was also held that whether oxygen gas is a raw material or not cannot be decided/determined in a writ application filed by BOC as TISCO alone is competent to explain to the prescribed authority as to how oxygen gas, which had all along treated and mentioned as goods as per annexure B, could be treated as raw material. In view of the order of this court in the case of Tata Iron Steel Co. Ltd. v. State of Jharkhand [2005] 4 SCC 272 See [2005] 140 STC 284 (SC)., the writ petition was also held to be not maintainable as TISCO cannot take a different stand to the effect that oxygen gas was used by it as a raw material. It was furthermore held: "As per the registration certificate issued under section 13(1)(b) of the Act, oxygen gas was treated as goods as mentioned in annexure B. Endorsing the same, the purchasing dealer has been paying the tax at the concessional rate of three per cent for a long number of years treating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a registered dealer; and it must be used for processing/manufacturing of goods meant for sale; BOC, being the assessee, is not concerned as to whether in the registration certificate issued to TISCO, oxygen gas has been shown in annexure A or annexure B. (v) BOC being an assessee having been made liable to pay tax had the requisite locus standi to maintain the writ application. (vi) Special leave petition filed by TISCO questioning the applicability of industrial policy. The decision of this court in Tata Iron Steel Co. Ltd. v. State of Jharkhand [2005] 4 SCC 272(1) cannot have any application in the instant case as payment of tax being governed by notification, the principles of res judicata and/or estoppel would not apply. Mr. B.B. Singh, learned counsel appearing on behalf of the respondents, on the other hand, would contend: (i) The procedure for claiming special rate of tax on all materials and/ or on raw materials having been provided for in the Act and/or Rules framed thereunder, the same were required to be complied with by the assessee for claiming the benefit thereof. (ii) TISCO which is a consumer of oxygen gas having never raised any contention that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is a busybody. Not only the penal proceedings but also other proceedings could be initiated against it for non-deposit of the aggregate amount of tax within the prescribed period. If an order of assessment is passed against the assessee, the only remedy before it is to prefer an appeal/revision in terms of the provisions of the Act. Thus, in our opinion, it was a person aggrieved to maintain a writ application. In the matter of The Trade Mark No. 70,078 of Wright, Crossley, and Co. [1898] 15 RPC 131 it was stated: "I think, notwithstanding what was said in that case, and has been said in other cases dealing with trade marks, that an applicant in order to show that he is a person aggrieved, must show that in some possible way he may be damaged or injured if the trade mark is allowed to stand; and by 'possible' I mean possible in a practical sense, and not merely in a fantastic view." (See Kabushiki Kaisha Toshiba v. Tosiba Appliances Co. [2008] 8 SCALE 354) If it is to be held that the assessee is a person aggrieved to question the validity of the demand raised on it, it will have the locus standi to maintain a writ petition. The expression "raw material" is not defined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s utilisation is in the manufacturing process as distinct from the manufacturing apparatus." Yet again, in the case of Tata Engineering Locomotive Company Ltd. v. State of Bihar [1994] 6 SCC 479 See [1995] 96 STC 211 (SC)., this court while interpreting the provisions of section 13(1)(b) of the Act itself, held that batteries, tyres and tubes which are by themselves finished products would be raw material when they are fitted in a vehicle, stating See page 215 of [1995] 96 STC.: "What requires consideration, therefore, is whether items such as tyres, tubes, batteries, etc., purchased by the appellant for use in the manufacture of vehicles which are otherwise finished products could avail of concessional rate of tax at one per cent. That would depend on the construction and understanding of the expression 'industrial raw material (inputs)' used in the notification. The word 'raw material' has not been defined in the Act. It has, therefore, to be understood in the ordinary and well accepted connotation of it in the common parlance of the persons who deal with it. According to dictionary, it means 'something which is used for manufacturing or producing the goods'. The ordinary c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the present case. In Narbada Prasad v. Chhagan Lal [1969] 1 SCR 499, this court was dealing with a matter concerning the Representation of the People Act in regard to filing of an election petition as in the election petition essential facts as specified therein were required to be pleaded in the manner laid down therein. In Kunwar Pal Singh (dead) by L. Rs. etc. v. State of U.P. [2007] 5 SCC 85, this court was dealing with the provisions of the Land Acquisition Act, 1894. Keeping in view the fact that the same was barred by limitation, this court held: ". . . The principle is well-settled that where any statutory provision provides a particular manner for doing a particular act, then, that thing or act must be done in accordance with the manner prescribed therefor in the Act." For the self-same reasons, we are of the opinion that it is not necessary to go into the question as to whether a person, even if he proves that he inadvertently did not claim the benefit of a notification would depend upon the facts and circumstances of each case as no such rule in absolute terms can be laid down therefor. We may, however, notice that this court in Share Medical Care v. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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