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TMI Blog2003 (8) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... lish small-scale industries as per the terms and conditions laid down in section 39 of the Act, 1994. Therefore, steps to curtail the benefits given to the dealers who established such industries, by subsequent notification, is against the doctrine of promissory estoppel. According to the learned lawyer, by way of amended provision of the Act, 1994, the benefit of exemption from April 1, 2003 in respect of payment of tax shall be given up to the limit of 200 per cent of the "gross value on fixed capital assets". As a result, a dealer entitled to get the exemption from payment of tax for full period on the basis of his eligibility certificate cannot get the benefit, if the "gross value of fixed capital assets" exceeds 200 per cent. The term is also contradictory and meaningless, inasmuch as, tax becomes payable on the day the first sale take place but by amendment it appears that the term would mean the investment made before the first sale took place. Sub-section (4) of section 39 of the Act, 1994 being violative in nature an interim order restraining the respondents from given effect to the amended provision should be granted. 4.. The learned lawyer for the petitioner also sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in [1984] 57 STC 360 (Ker) (Wellwroth Plastics and Chemicals v. State of Kerala), [2002] 128 STC 554 (Mad.) (Dharani Sugars and Chemicals Ltd. v. Commercial Tax Officer), [1995] 99 STC 333 (SC) (Arvind Industries v. State of Gujarat), [1998] 108 STC 274 (SC) (Sales Tax Officer v. Shree Durga Oil Mills). 8.. Considered the submission of both the parties. The only point for consideration therefore is, if the revenue would suffer any loss or injury in case, an interim rule at this State is granted. 9.. The disputes raised challenging the constitutional validity of the provision of sub-section (4) of section 39 of the Act, 1994 has to be decided on merits after full hearing on the cases. The legal propositions therefore, referred on behalf of the revenue are to be considered at the time of final adjudication of the issues in dispute. 10.. At this stage, we are only to examine as to whether, any inconvenience or injury would be caused to the petitioner if the prayer for interim order is refused. Similarly, the inconvenience of the revenue if any, has also to be considered if an interim order is granted in favour of the petitioner. The provision of section 39(4) is under challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 in Case No. RN. 205 of 2003. By the said order the West Bengal Taxation Tribunal (hereinafter referred to as the Tribunal) stayed the operation of the provision of section 39(4) of the West Bengal Sales Tax Act, 1994 (hereinafter referred to as the said Act). The Tribunal's view was that the balance of convenience demanded such an interim order of stay of operation of the amended portion of the said Act. 3.. On the basis of such finding the Tribunal restrained the respondent State authorities from giving effect to the provisions of Printed at page 145 supra. sub-section (4) of section 39 of the said Act till the disposal of the application before the Tribunal and the Tribunal fixed the matter for hearing on September 17, 2003. 4.. The said interim order has been challenged before us on the basis of this writ petition by the State Government. Learned counsel appearing in support of the writ petition submitted that the Tribunal while staying the operation of the law, viz., section 39(4) of the said Act has not recorded any finding at least on a prima facie basis that the said law is violative of any provision of the Constitution. The learned Tribunal, it has been argued before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of distribution of legislative power under the Constitution. It can also be challenged, inter alia, on the ground that the law infringes any of rights under Part III of the Constitution. In the absence of these two challenges being made or accepted by a Court or Tribunal to be prima facie present or existing, it is difficult for the Tribunal or the Court to stay the operation of law or even to strike it down. This position is far too well-settled to be questioned by the learned counsel appearing for the respondents and in fact this aspect of the matter has not been questioned by the learned counsel at all. We are, therefore, a little surprised to find that in the absence of any of the findings mentioned hereinabove, the Tribunal has granted the stay of operation of law only on the question of balance of convenience. 8.. Apart from that the question of balance of convenience in a matter of imposition of indirect taxation has also not been properly appreciated by the Tribunal. 9.. In any case of indirect taxation the burden is always passed on to the consumer. In such a case if ultimately law is found to be bad the dealer does not suffer any prejudice since the dealer is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption on expiry of (a) five years from the date of his first sale of the goods manufactured in his newly set up small-scale industrial unit if such unit is situated within the area of the Kolkata Metropolitan Planning Area as described in the First Schedule to the West Bengal Town and Country (Planning and Development) Act, 1979; or (b) seven years from the date of his first sale of the goods manufactured in his newly set up small-scale industrial unit if such unit is situated in any area other than the areas referred to in clause (a): Provided that the dealer shall not be entitled to enjoy the benefit of exemption for the full period as referred to in clause (a), or clause (b), as the case may be, and he shall cease to enjoy such exemption from the day immediately following the day on which the aggregate of the benefit of exemption from payment of tax enjoyed by the dealer under his section, computed from the day of coming into force of this sub-section, exceeds two hundred per centum of the gross value of fixed assets." 11.. As a result of the said amendment the exemption continues as was granted under section 39 but the same continued with a rider which has been inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the State has relied on a number of judgments in order to contend that in a matter relating to grant of exemption, the same can be withdrawn before the period mentioned in the earlier legislation. Reliance was placed on the judgment in the case of State of Rajasthan v. Mahaveer Oil Industries reported in [1999] 115 STC 29 (SC); (1999) 4 SCC 357. Reliance was placed on paragraph 14. In the said paragraph it is made very clear that supervening public interest may authorise the State from withdrawing the benefit and such supervening public interest will prevail over any promissory estoppel. This was allowed even in a case where a scheme was floated giving the benefit which shows that promissory estoppel cannot be pressed into service even against a scheme. Reliance was also placed on the decision of the Supreme Court in the case of Shrijee Sales Corporation v. Union of India reported in (1997) 3 SCC 398. In paragraph 7 of the said judgment it has been laid down that superior equity reflected in the legislation can override individual equity and government is competent to resile from a promise even if no manifest public interest is involved. The learned Judges relied on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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