9911796707
TMI Blog2006 (5) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... ules") with effect from April 12, 1993 to April 11, 2000. In the year 1995, the petitioner carried out expansion in Unit II by creating additional capacity for manufacturing of the same product (hereinafter referred to as "the expanded unit"). The expanded unit was also granted exemption from payment of tax for the period January 17, 1996 to January 16, 2003 in terms of the provisions of the Act and the Rules. The petitioner availed of the entire benefit admissible to him for Unit II up to April 11, 2000. In terms of provisions of sub-rule (11) of rule 28-A of the Rules, a unit, after availing the benefit of exemption from payment of tax, is required to continue in production for at least five years thereafter with the same average level of production. The above referred sub-rule extracted below: "Rule 28A . . . (11)(a) The benefit of tax exemption/deferment under this rule shall be subject to the condition that the beneficiary/industrial unit after having availed of the benefit, (i) shall continue its production at least for the next five years not below the level of average production for the preceding five years; and (ii) shall not make sales outside the State for next ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1999-00 451.53 3060.58 612.12 Year Amount in lacs SON/IV/7412 Unit No. 2 (1st Exp.) Average turnover required per year 1997-98 167.94 1998-99 494.78 1999-00 574.02 2000-01 1139.77 2001-02 999.44 3370.95 674.19 1286.31 2002-03 1467.07 2003-04 1643.94 2004-05 1724.83 2005-06 1318.67 (up to 31-12-05) 6154.51 1641.20 1641.20 Total average sale in SON/IV/6540 Unit No. II and SON/IV/7412 Unit No. II (1st Expansion) is Rs. 612.12 and Rs. 674.19 lacs respectively, i.e., total Rs. 1286.31 lacs whereas after exemption and installing new machine in unit No. SON/IV/7412-II (1st Expansion) the average turnover is Rs. 1641.20 lacs. (sic)" Since, in the opinion of the Deputy Excise and Taxation Commissioner, the loss in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 57. Tribunal. (1) The State Government may constitute a Tribunal to be called the Haryana Tax Tribunal consisting of three or more odd number of Members including the Chairman as the State Government may appoint for the purpose of performing such functions and exercising such powers as may be assigned to, or conferred on, the Tribunal by or under this Act. (2) The functions of the Tribunal may be discharged by the Members sitting in Benches of two or more Members, as may be determined by the Chairman. (3) If the Members of a Bench are divided over some matter, the decision shall be the decision of the majority, if there be a majority, but if the Members are equally divided they shall state the point or points on which they differ, and the case shall be heard by the Full Member Tribunal and such point or points shall be decided according to the decision of majority of the Members of the Tribunal." As is evident from undisputed facts on record, after the Members of the Bench were equally divided on the issue the matter was considered by the third Member of the Tribunal, who vide his separate order dated May 16, 2005 formed an opinion favouring dismissal of the appeals. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Members, who constituted the Bench initially, after the case was required to be heard by the Full Member Tribunal of the Bench. The submission of the petitioner is that the procedure as envisaged under section 57(3) of the VAT Act, was not at all followed, rather was violated blatantly. It is submitted by the counsel for the petitioner that if some procedure has been laid down in the statute, the same is required to be followed in its entirety and in its true letter and spirit. If an act is required to be done under a statute in a particular manner, that can be done only and only in that manner and other manners of doing the same are impliedly barred. Learned counsel for the State could not dispute the fact that the procedure followed by the Tribunal while hearing the appeals of the petitioner was not strictly in conformity with the provisions of the VAT Act. However, she submitted that the petitioner having not raised this objection at the time of hearing of appeals by the third Member, this amounted to waiver of this plea. Second contention raised by the counsel for the State is that the present petition having been filed nearly after one year from the order of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dealer has failed to advance proof regarding effort, if any made for the revival of the unit. Instead he disposed of its assets and surrendered sales tax registration certification for cancellation in August 5, 2002 . . . it was submitted that this shows that the dealer was not keen to rehabilitate the unit . . . It was submitted that with the funds received from the insurance company revival of unit No. 2 was possible. No effort was, however, made in that direction. Rather the funds were diverted towards unit No. 1. . . . In this case the dealer has not made any effort to revive unit No. 2. Dealer has not shown whether with the amount of compensation given to it by the insurance company, no purchase of any machinery was possible . . . For the reasons given above, it emerges that the Deputy Excise and Taxation Commissioner, Sonepat, was justified in withdrawing the benefit of tax exemption . . . Both these appeals are accordingly dismissed'." (vii) The Second member of the Tribunal who disagreed with the learned Chairman's opinion held in his order dated October 8, 2004 as follows: "We have heard the arguments of both the parties and have also gone through the case law referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the honourable learned Chairman." In this view of the matter, neither delay nor the process of availing alternative remedy under section 42 of the Act was fatal in the filing of the present petition. We have perused section 57(3) of the VAT Act and also other provisions of the VAT Act as well as the Act. We are of the view that the procedure as laid down under section 57(3) of the VAT Act provides for reference of a matter to be heard by Full Member Tribunal by stating points of difference, is mandatory in nature. Whenever point or points will be referred to be heard by Full Member Tribunal, it is inbuilt in the provision that such reference order will contain facts of the case in brief and thereafter state the point or points in issue, which are required to be considered by the Full Member Tribunal. This certainly has an object to be achieved in the scheme of the Act. The questions of law arising out of order passed by the Tribunal will be considered by this court only on the facts found by the Tribunal in an order out of which the question of law is referred to this court. If the facts itself are recorded differently in different orders passed by the learned Member const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law that there is no estoppel in a statute. In our opinion, in the facts and circumstances of the case and the procedure followed by the Tribunal, which is not in consonance with the provision of section 57(3) of the VAT Act, has certainly caused prejudice to the petitioner. Further, in our view the principle as enunciated by the honourable Supreme Court of India in Babu Verghese v. Bar Council of Kerala [1999] 3 SCC 422, would also be helpful in the present case. The relevant part of which is as under: "31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor [1875] 1 Ch. D 426 which was followed by Lord Roche in Nazir Ahmad v. King Emperor 63 Ind App 372; AIR 1936 PC 253 who stated as under: 'Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.' 32.. This rule has since been approved by this court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh AIR 1954 SC 322 and again in Deep Chand v. State of Rajasthan AIR 1961 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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