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TMI Blog2001 (3) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... and Taxation Officer-cum-Assessing Authority, Sirsa, finalised the assessment for the assessment years 1994-95, 1995-96 and 1996-97 and allowed proportionate rebate under rule 24-A of the Haryana General Sales Tax Rules, 1975 (for short, "the Rules") instead of granting full rebate on the tax paid on the cotton seeds. The appeals filed by the petitioner under section 39(1) and (2) of the Act claiming full rebate were dismissed by the Joint Excise and Taxation Commissioner (Appeals), Hisar and the Tribunal vide orders dated January 31, 2000 and September 18, 2000. Reference application filed by the petitioner under section 42 of the Act was also dismissed by the Tribunal vide its order dated September 19, 2000. 3.. The petitioner has challenged the order passed by the Tribunal on the ground that it is contrary to the law laid down by the Supreme Court in Commissioner of Sales Tax v. Bharat Petroleum Corporation Ltd. [1992] 85 STC 220 and its own order dated June 22, 2000, passed in S.T.M. Nos. 10-11 of 1999-2000 (Jyoti Luxman Roller Flour Mills P. Ltd., Rohtak v. State of Haryana). It has averred that "khal" is a by-product obtained in the process of manufacturing oil from cotton ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order passed in the case of Jyoti Luxman Roller Flour Mills (S.T.M. Nos. 10-11 of 1999-2000 decided on June 22, 2000) the Tribunal was justified in rejecting the petitioner's claim for full rebate on the raw material, i.e., cotton seeds used in the manufacturing of oil and whether the ratio of the decision of the Supreme Court in Commissioner of Sales Tax v. Bharat Petroleum Corporation Ltd. [1992] 85 STC 220, is applicable to its case. 8.. For the purpose of deciding the aforementioned question, it will be useful to refer to the order, annexure P5, passed by the Tribunal in the case of Jyoti Luxman Roller Flour Mills (S.T.M. Nos. 10-11 of 1999-2000 decided on June 22, 2000). The facts of that case were that the assessee was manufacturing atta, maida, suji and wheat by using tax paid wheat. It claimed rebate/refund of tax in lieu of the wheat used in the manufacture of the final product. The Assessing Authority rejected its claim for full rebate on the ground that wheat bran was a tax-free item. The Joint Excise and Taxation Commissioner (Appeals) and the Tribunal upheld the order of the Assessing Authority. However, while deciding the review petition and reference applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same presiding officer of the Tribunal rejected the claim for total rebate by making the following observations: "I have considered the matter carefully and have also seen the facts on record, judgments relied upon by both the parties and the authorities below. The Supreme Court judgment reported in Commissioner of Sales Tax, Bombay v. Bharat Petroleum Corporation Ltd. [1992] 85 STC 220 makes it abundantly clear that products include by-products as well. Meaning there is no distinction between the two for the purpose of taxation. For this reason, reliance by the counsel upon [1994] 94 STC 98 (P H) (Jagraon Co-operative Sugar Mills Ltd. v. State of Punjab) cannot be of any use to the appellants. In support of the contention for total rebate under rule 24-A the counsels have referred to [1998] 85 STC 220 (Commissioner of Sales Tax, Bombay v. Bharat Petroleum Corporation Ltd.). A careful perusal of the judgment clearly reveals that Haryana provisions which were inserted in the form of rule 24-A and 24-B came much after the aforesaid judgment was delivered by the apex Court. Besides, the counsel could not establish similarity between the provisions interpreted by the honourable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that decision shows that while deciding a bunch of appeals and writ petitions, their Lordships had held that for claiming exemption, it is not necessary for the assessee to prove that the entire raw material had been used only for manufacture of taxable goods. The relevant observations made by the Supreme Court in this respect are reproduced below: "Turning now to the main question, we are inclined to agree with respondents' counsel that they are entitled to a set-off of the entire tax paid by them on the purchases of sulphuric acid and cotton, respectively. The only condition under the rule is that the goods purchased on payment of tax should have been used in the manufacture of taxable goods for sale. Their concurrent user for the manufacture of another item of goods which may or may not be taxable is immaterial though we may point out that in the Bharat Petroleum case, the kerosene was also taxable for nine months in the year and in the case of Phulgaon Cotton Mills, yarn was also manufactured and it was subject to tax. Sri Dholakia contends for an implicit principle of apportionment on the basis of turnovers of various items of goods manufactured and restriction of the quantu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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