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TMI Blog1991 (4) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... he will be entitled to refund of the tax paid under the Orissa Sales Tax Act, but the petitioner apprehends that his refund applications would not be attended to, and he has, therefore, approached this Court to get the demand notices under the Act set aside. It may be stated here that during the relevant periods of assessment, the goods in question were taxable at the rate of 4 per cent under both the taxing statutes. 2.. To take care of the double taxation involved and to avoid approaches for refunds following double payment of tax, a notification was issued by the State Government in the Finance Department on 8th December, 1966, bearing No. 43637-CTA-200/66-F, in exercise of power conferred by sub-section (5) of section 8 of the Act being satisfied that it was necessary to do so in the public interest directing that on fulfilment of the conditions mentioned in the notification in respect of declared goods sold in the course of inter-State trade or commerce, no tax under the Act should be payable by any dealer in respect of the sale by him of such goods where tax has been levied or collected on the sale or purchase of such declared goods under the Orissa Sales Tax Act, 1947. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s connection, we have been referred to Baldev Raj Chadha v. Union of India AIR 1981 SC 70, which has stated that where an order is in challenge and its validity depends on its being supported by public interest, the State must disclose the material so that the Court may be satisfied that the order is not bad for want of any material which to a reasonable man reasonably instructed in law is sufficient to sustain the ground of public interest. Reference is also made to Sun Paper Mills Ltd. v. Union of India [1991] 80 STC 1 (Mad.), wherein withdrawal of certain concession without stating that the same was being done on the demand of public policy was held to be a bald withdrawal and as such not sustainable inasmuch as granting of concession was ordered on the satisfaction that public policy demanded the same. 7.. As against the aforesaid submission of Shri Agarwalla, it is contended by Shri Patnaik for the department that omission about mention of the need of public interest in rescinding the Notification of 8th December, 1966, cannot be taken as conclusive inasmuch as a perusal of the concerned file of the Finance Department would leave no manner of doubt that the said notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Shri Patnaik that as the Notification dated 5th July, 1976, had been issued to bring into effect the view expressed by this Court in three Division Benches relating to ultra vires character of the Notification dated 8th December, 1966, the effort of the Government cannot be said to be unreasonable or anything having been done in bad faith or arbitrarily. It is, therefore, submitted that for the mere fact that the rescinding notification did not mention about the necessity of public interest in issuing the same, we may not declare that notification as void. 9.. We have then been referred by the learned counsel to paras 103 to 106 of the aforesaid judgment in which it was discussed as to when a subsequent law/rule would supersede the earlier statutory provision. After referring to several decisions, it was concluded in para 106 that much would not depend merely upon use of the words like "substitution" or "supersession"-it would rather depend upon the totality of circumstances and the context in which they are used. To this, we shall add that the intention of the maker shall also be relevant. 10.. We have closely read the aforesaid paras and we find that the case at hand do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why the forced action should hold the field. 12.. There is, however, another aspect of the matter. The same is that if the Government would have thought after the Full Bench decision became available that the benefit made available in public interest by the 1966 notification should continue to be enjoyed by the concerned persons, it could have withdrawn the rescinding notification of 1976. This was, however, not done. Does it indicate any change of view of the Government regarding the need of continuance of the 1966 notification in public interest? We have no material before us to come to this conclusion. Indeed, this is not even the stand of Shri Patnaik. All that he has contended in this context is that the withdrawal was not arbitrary or unreasonable, which facet of the argument has been dealt above. The worst that could be said, in so far as this aspect of the petitioner's case is concerned, is that non-withdrawal of the 1976 notification after the Full Bench decision indicated that, according to the Government, the public interest did not require revival of the 1966 notification. Though the materials on record and the stand taken by the learned counsel for the department do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns is unenforceable by reason of those limitations, but once the limitations are removed, the law becomes effective. According to the learned author, such a law, whether pre-Constitution or post-Constitution, is not wholly void if it violates the fundamental rights; it is merely eclipsed by the fundamental rights and remains, as it were, in a moribund condition as long as the shadow of fundamental rights falls upon it. When that shadow is removed, the law begins to operate proprio vigore from the date of such removal unless it is retrospective. (See pages 245-249 of Volume 1, 3rd Edition). 15.. As to the applicability of the doctrine of eclipse to the case at hand, we would say that the issuance of the 1966 notification was not held to be beyond the competence of the State Government in the aforesaid Division Bench decisions of this Court. The fault found was that the notification issued in exercise of the power under section 8(5) of the Central Sales Tax Act ran counter to section 15(b) of that Act and was therefore invalid. The Full Bench, however, took the view that the notification intended to operate on a field different from the one covered by section 15(b) of the Central S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment orders even passed in 1982 came to be assailed in this petition which was filed in 1986. As to this, the contention of Shri Agarwalla is that the challenge in this application is also to the assessment order relating to 1981-82, which was passed on 29th March, 1985, copy of which was received much later by the petitioner. It is also urged that as a very important question relating to the validity and continuity in existence of the 1966 notification is involved in this petition and as the petitioner has good case on merits, the application may not be dismissed on the ground of delay. In this connection, reference has been made to Lohia Machines Ltd. v. Union of India [1985] 152 ITR 308 (SC), in which delay of 19 years in assailing a rule was not regarded as sufficient to close the doors of the court. Having found merit in the contention of the petitioner, we have not felt inclined to dismiss the petition on the ground of laches. 19.. In the result, the petition is allowed by stating that the Notification dated 8th December, 1966, bearing No. 43637-CTA-200/66-F, is still enforceable, because of which the demands raised against the petitioner for the assessment years ..... X X X X Extracts X X X X X X X X Extracts X X X X
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