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TMI Blog2009 (2) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... not be the subject-matter of the remand or any proceedings thereafter. - Civil Appeal Nos. 679-714 of 2009 - - - Dated:- 4-2-2009 - KAPADIA S.H. AND DATTU H.L. JJ. R.F. Nariman, Ashok H. Desai, S. Ganesh and Debi Prasad Paul, Senior Advocates (E.C. Agrawala, Mahesh Agrawala, Rishi Agrawala, Bijel Chatrapati, Ms. R. Hameed, Ankur Saigal, Ms. Bina Gupta, Ms. Anisha Ranjan, Gaurav Singh, Pratap Venugopal, Ms. Surekha Raman, Dileep Poolakkot, Ms. Jhuma Bose for M/s. K.J. John Co., Naveen Kumar, Prem Prakash, G. Umapathy, Vibhu Tiwari, Rakesh K. Sharma, Mitul K. Shelat, A. Rohan Singh, Amit Kr. Chawla, Sanjay R. Hegde, Vikrant Yadav, Dr. Meera Agarwal, Ramesh Chandra Mishra, M.Y. Deshmukh, Amol Suryawanshi, R.P. Goyal, Jay Savla and O. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1999] 8 SCC 465 See [2009] 117 STC 12 (SC)., on the one hand and, on the other hand, numerous judgments of the Gujarat High Court following the judgment of this court in J.K. Cotton Spinning Weaving Mills Co. Ltd. v. Sales Tax Officer reported in AIR 1965 SC 1310 See [1965] 16 STC 563 (SC). and Collector of Central Excise v. Ballarpur Industries Ltd. reported in [1990] 77 STC 282 (SC). It appears that the Gujarat High Court has followed the decision in J.K. Cotton AIR 1965 SC 1310 See [1965] 16 STC 563 (SC). and Ballarpur [1990] 77 STC 282 (SC) in numerous cases, including the case of Saurashtra Calcine Bauxite and Allied Industries v. State of Gujarat [1993] 91 STC 435 (Guj). There is a dichotomy in the controversy canvassed by the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endency" in deciding the question as to whether the expression "raw materials" or "processing materials" or "consumable stores" would cover various fuels like naphtha, liquid diesel oil, natural gas, etc. We may reiterate for the sake of clarity that in this case, the fuels consumed are natural gas, furnace oil, diesel oil and naphtha. Broadly, these fuels are used by the industry for carrying on its manufacturing process. In most cases, these fuels are used to generate electricity which is then used in the manufacture of end-products like caustic soda, industrial chemicals, etc. The point which arises for consideration is whether the abovementioned fuels would come within the meaning of the expression "raw materials" "processing materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve question or whether the tests laid down by this court in the case of J. K. Cotton AIR 1965 SC 1310 See [1965] 16 STC 563 (SC). and in the case of Ballarpur Industries [1990] 77 STC 282 would apply. In other words, which line of decisions would apply, while deciding the above question, to the Gujarat Law." It may be noted that according to the appellant-State of Gujarat, the controversy is covered by the judgment of this court in the case of Coastal Chemicals [1999] 8 SCC 465 See [2000] 117 STC 12 (SC).whereas, according to the assessees, it is not so because the two laws, namely, the Gujarat law and the A.P. law stand on different footing. This controversy needs to be answered by the High Court, on remand, in accordance with law. Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay add that regarding pending cases of assessments/appeals, no recovery shall be made for a period of six weeks after the judgment of the Gujarat High Court answering the above questions. In other words, the pending proceedings shall remain stayed till the High Court decides the above questions. In the event of the High Court ultimately answering the questions in favour of the Department and against the assessees, which exercise may result in the assessees' becoming liable to pay the tax, the same shall be recovered without imposing any penalty. However, in such an eventuality, as far as the interest is concerned, the same shall be recoverable in accordance with law. This order will only apply to the respondent-assessees before this cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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