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TMI Blog2003 (11) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Policy Resolution, 1986, but the said exemption was withdrawn by the Project Manager, District Industrial Centre, Rourkela, who took a view that the petitioner was entitled to incentives under the Industrial Policy Resolution, 1980 and not under the Industrial Policy Resolution, 1986. The petitioner filed a writ petition before this Court in O.J.C. No. 1712 of 1989 and by judgment dated May 8, 1990, a division Bench of this Court held that the industrial unit of the petitioner was entitled to enjoy the incentives under the Industrial Policy Resolution, 1986 in the manner and to the extent specified therein. Pursuant to the said judgment, the petitioner was, inter alia, allowed exemption of sales tax on purchase of raw materials. The Sales Tax Officer issued form 1-B and the petitioner furnished the said form 1-B to dealers selling raw materials to the petitioner's unit and availed exemption of sales tax on purchase of raw materials till December, 1989. 3.. On December 22, 1989, however, Notification No. 44987CTA-105/89-F was issued by which tax on sale of iron and steel materials was imposed at the first point with effect from January 1, 1990. The result was that when the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the exact amount of such refund and communicate the decision to the petitioner and, therefore, there was no scope for the Sales Tax Officer to have rejected the applications for refund altogether and the Sales Tax Officer should have only quantified the amount of sales tax to be refunded to the petitioner. According to Mr. Bijoy Anand Mohanty, learned counsel for the petitioner, the Sales Tax Officer has sat in appeal over the judgment dated June 23, 1997, of this Court in a manner which almost amounts to contempt of court. He submitted that the Court should forthwith direct the Sales Tax Officer to determine the quantum of refund on the basis of materials filed by the petitioner before him and refund the same with interest at 18 per cent per annum. 6.. Mr. Ashok Mohanty, learned Senior Standing Counsel, Commercial Taxes, on the other hand, relied on the counter-affidavit filed on behalf of the opposite parties and submitted that the claim of the petitioner for refund can only be considered in accordance with the provisions of the Orissa Sales Tax Act, 1947 and the Rules made thereunder and in this case the Sales Tax Officer considered the applications of the petitioner date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sellers from whom the iron and steel materials had been purchased, the numbers and dates of the bills under which the materials had been purchased, the description of the materials, the quantities of the materials, the rates at which the materials had been purchased and the amounts paid for the materials. Along with the said statement, the petitioner has also filed the copies of the purchase bills before the Sales tax officer and in the purchase bills it has been mentioned that the materials purchased are tax paid goods. The records further show that the Sales Tax Officer has recorded the statement of Sri Naresh Agarwal, director of the petitioner-company, made on December 15, 1997 in which he has stated that the total amount of tax paid on raw materials purchased against form 1-B for the periods 1989-90, 1990-91, 1991-92 and 1992-93 came to Rs. 10,61,044.80. But the Sales Tax Officer, Rourkela-II Circle, Panposh, has by a common order dated December 18, 1997 rejected the said applications giving reasons. 8.. The first reason given in the aforesaid impugned order of the Sales Tax Officer is that under entry 26-D(i) of the Tax-free Schedule inserted by the Finance Department N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation No. 5389 dated February 13, 1987 was in force under which it was entitled to exemption. In short, its allegation is that it had to pay sales tax to the sellers of such raw materials in the local market and it had paid about a sum of rupees fifteen lakhs and odd towards the purchase tax. In view of the exemption available to it pursuant to the Industrial Policy Resolution, 1986 and the Finance Department Notification No. 5389 dated February 13, 1987, it is entitled to refund of the said amount. 3.. Opposite parties 5 and 6 have filed their counter-affidavit. They have admitted in their counter-affidavit that the petitioner is entitled to tax exemption on purchase of raw materials for a period of five years from the date of its commercial production as per the Finance Department Notification No. 5389 dated February 13, 1987. Their case, however, is that the petitioner has not made any refund application under the prescribed form XII to the Sales Tax Officer and without following the prescribed procedure, it has approached this Court with this petition raising disputed questions of fact." Thus, the Commissioner of Sales Tax and the Sales Tax Officer, Rourkela II Circle, P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm and disposed of the writ petition with the direction that on the petitioner filing the prescribed application form the Commissioner and the Sales Tax Officer will consider the question of exact amount of refund to which the petitioner is entitled under the Industrial Policy Resolution, 1986 and the Finance Department Notification No. 5389 dated February 13, 1987 and communicate the decision to the petitioner. There is, therefore, no scope for the Sales Tax Officer now to take a view that the petitioner was only entitled to exemption from sales tax under the Industrial Policy Resolution, 1986 and the Finance Department Notification No. 5389 dated February 13, 1987 under entry 26-D(i) of the Tax-free Schedule and was not entitled to refund of tax paid by the petitioner on purchase of raw materials. 9.. In State of Bihar v. Suprabhat Steel Ltd. [1999] 112 STC 258 (SC); AIR 1999 SC 303, one of the questions which arose for decision is whether the State Government while exercising the power of issuing a notification under the Bihar Finance Act could deny benefits declared by the State Government under its Industrial Incentive Policy and the Supreme Court held: "Coming to the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent dealers. The Sales Tax Officer has further held that these subsequent sellers have not collected any sales tax from the petitioner as is evident from the purchase bills furnished by the petitioner and the petitioner has himself calculated four per cent tax on such purchases of iron and steel and has claimed refund. This again is a question which could not have been re-opened by the Sales Tax Officer after the judgment dated June 23, 1997 of the Court in O.J.C. No. 8052 of 1992. As is clear from the portion of the said judgment quoted above, the case of the petitioner before the Court in O.J.C. No. 8052 of 1992 was that the petitioner had to pay sales tax to sellers of raw materials in the local market in view of the levy of first point sales tax on iron and steel materials by Notification No. 44987 dated December 22, 1989 and as a result, the petitioner could not get the exemption available to it under the Industrial Policy Resolution, 1986 and the Finance Department Notification No. 5389 dated February 13, 1987 and was thus entitled to refund of such tax paid and the court by the said judgment dated June 23, 1997 has directed the Commissioner and the Sales Tax Officer t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the amount of tax, penalty or interest due in respect of any other period: Provided that no claim to refund of any tax, penalty or interest paid under this Act, shall be allowed unless it is made within twenty four months from the date on which the order of assessment or order imposing penalty, as the case may be, was passed or from the date of the final order passed on appeal, revision or reference in respect of the order earlier mentioned, whichever period is later: Provided further that no claim to refund of any tax, penalty or interest paid under this Act shall be allowed in cases where there is an order for reassessment, until the reassessment is finalised. " Rule 39 of the Orissa Sales Tax Rules, 1947: "39. Application for refund.-(1) An application from a dealer for a refund of any amount of tax, penalty or interest, if any, paid by him in excess of the amount and interest due or security paid shall be made to the Commissioner in form XII and shall clearly specify the grounds upon which the refund is claimed. (2) If the refund application is fund to be incorrect, incomplete or otherwise not in order, the Assistant Sales Tax Officer or the Sales Tax Officer, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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