9911796707
TMI Blog1990 (3) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Commissioner that the production of coconut oil commenced only on March 24, 1983. But the statutory requirement for getting such exemption under rule 3(66) is that such production must commence between March 31, 1978 and March 14, 1983. It was held by the said Assistant Commissioner that the petitioner's application for grant of eligibility certificate was made on June 8, 1983, but the last date for such application was April 14, 1983 and the said Commissioner further held that two sets of sales memos one for the coconut oil and other for oil-cake with identical serial numbers were used, but such separate serial numbers for separate commodities were not required to be maintained. The dealer thereafter made a revision application before the Additional Commissioner, Commercial Taxes, and the said Additional Commissioner, Commercial Taxes, held that the petitioners' unit started production on March 13, 1983 and such production was within the statutory period between March 31, 1978 and March 14, 1984. The revision application, however, was not allowed by the Additional Commissioner on the ground that the application for issue of eligibility certificate was made on June 8, 1983, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "(iv) A dealer shall apply for a certificate of eligibility on or before the 14th April, 1983 or for renewal thereof ordinarily within a month from the date from which such certificate is required to be renewed for the purpose of this rule: Provided that only a registered dealer may apply for a certificate of eligibility on or after 1st April, 1983." Mr. Dutta, the learned counsel appearing for the appellants, has contended that in order to get eligibility certificate, all the provisions of rule 3(66) must be strictly complied with. He has submitted that since a concession is being given by the tax authorities to a dealer, such dealer cannot get such exemption if he fails to fulfil all the conditions strictly. Mr. Dutta has contended that initially an application for eligibility certificate was required to be made by the dealer fulfilling all other conditions for getting an exemption of sales tax by April 14, 1983. The provision of making such application, however, underwent a change because of an amendment effected on April 1, 1983. By such amendment, a proviso under sub-clause (iv) of rule 3(66) was added and if the proviso is properly considered it will only reveal that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red dealer was not affected. Such an application not having been made by April 14, 1983, by the dealer who was then an unregistered dealer, the application for eligibility certificate could not have been made by him at a later date simply because he became registered at a later date. Mr. Dutta has contended that even if it is assumed that a registered dealer could make an application for eligibility certificate even beyond April 14, 1983, because no outer-limit was mentioned in the proviso added to sub-rule (iv), the said proviso would not have been availed of by the dealer because he was not registered up to April 14, 1983, and his case should be governed by the provisions for an unregistered dealer. Mr. Dutta has next contended that the implication of rule 3(66a) has not been taken into consideration by the learned trial Judge. In his fairness, Mr. Dutta has submitted that such contention was not raised in the trial court. But since the import of the rule 3(66a) has a great bearing on the adjudication of the dispute involved in this writ proceeding and no facts other than the facts already pleaded in the writ proceeding are required to be considered for appreciating the import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted because the same would lead to an absurd position. The proviso on the face of it indicates that the general provision applicable to both the registered and unregistered dealer has been modified and so far as registered dealer is concerned, a further privilege has been given to the registered dealer to make application on or after April 1, 1983, without specifying any outer-limit for making such an application. It is quite evident that the concerned authorities intended that the registered dealer could make such an application at any time and the time-limit mentioned in the parent sub-clause (iv) is extended by the proviso and one of the reasonable interpretations of the proviso is that the proviso may enlarge the scope and ambit of the provisions of the parent section, rule or sub-rule. Mr. Bajoria has contended that it is only reasonable that no time has been fixed for making such an application by a registered dealer. Once a dealer is registered as a bona fide dealer, the concerned authorities have very reasonably provided by amending sub-rule (iv) that such bona fide dealer who has been registered, may make an application even beyond 14th April, provided he otherwise fulf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to the date when the dealer became registered. Referring to the contentions of Mr. Dutta that in view of introduction of rule 3(66a), the dealer is not entitled to eligibility certificate because he is manufacturing coconut oil, Mr. Bajoria has contended that rule 3(66a) has not taken away the right to get eligibility certificate under rule 3(66). On the contrary, rule 3(66) and rule 3(66a) both are operative in full force and if amendment of various sub-clauses of rule 3(66) are referred to, it will be quite evident that on April 1, 1983, when for the first time the rule 3(66a) is incorporated, such amendment to various sub-clauses of rule 3(66) including sub-clause (iv) of rule 3(66) was simultaneously effected. He has also drawn the attention of the court to the explanation to sub-clause (vii) of rule 3(66a). The said explanation indicates that if exemption under rule 3(66) has been availed of, eligibility certificate will not be made available under rule 3(66a), even if the dealer fulfils all the conditions under rule 3(66a). Mr. Bajoria has, therefore, submitted that the learned trial Judge has rightly considered the scope of rule 3(66) and has correctly held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aler has been allowed to make an application on or after April 1, 1983. If the interpretation of the import of proviso added to sub-clause (iv) of rule 3(66) as sought to be given by Mr. Dutta is accepted, it will mean that an unregistered dealer though entitled to make an application for eligibility certificate up to April 14, 1983 and as such has not made such an application up to March 31, 1983, will suddenly find that he can no longer make an application for eligibility certificate and his right to make such an application up to April 14, has suddenly been taken away without any notice whatsoever to his great prejudice because by the proviso added on April 1, 1983, only registered dealer can make application on or after April 1, 1983 and by necessary implication make such application on or after April 1, 1983. It appears to us that the general provision in the parent sub-clause (iv) which was available to both the registered and unregistered dealers in the matter of making application for eligibility certificates has been modified by the proviso added on April 1, 1983 and the proviso has only indicated that in case of the registered dealer such an application is not limited up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was registered on June 6, 1983, but such registration has been given effect to from May 25, 1983. Hence a bona fide dealer awaiting for registration and ultimately succeeding in getting registered, is entitled to make the application after April 14, 1983, as a registered dealer. We are also unable to accept the contention of Mr. Dutta that because of the incorporation of rule 3(66a) the dealer was not entitled to claim exemption although he had fulfilled all the conditions for getting such exemption under rule 3(66). It does not stand to reason that a registered dealer making an application by April 14, gets the exemption under rule 3(66) although he is manufacturing coconut oil, but another registered dealer fulfilling all the conditions of rule 3(66) will not get such exemption only, because he has not made an application after April 14, 1983, rule 3(66a) has become operative. As a matter of fact, rule 3(66a) became operative from April 1, 1983. Hence, the argument of Mr. Dutta that a registered dealer could get an exemption under rule 3(66) if such an application had been made by him by April 14, 1983, appears to be wholly irrational because any application made for exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
