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TMI Blog2003 (5) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture of ETP. 3.. The petitioner had earlier filed C.W.J.C. No. 2857 of 2000 (R) for issuance of appropriate writ in the nature of certiorari for quashing the orders dated June 30, 2000 (annexure 16) and July 1, 2000 (annexure 17) passed by respondent No. 3, Joint Commissioner of Commercial Taxes (Admn), Jamshedpur Division, Jamshedpur, pursuant to the direction dated January 6, 2000 passed by this Court in C.W.J.C. No. 3248 of 1999 (R) whereby and whereunder the prayer of the petitioner for refund of the amount of sales tax of the year 1996-97 has been disallowed and for the year 1997-98 the petitioner was allowed to avail of the tax-free purchase of raw materials in the form of HR coils for the production of 8588 MT of CRM product over and above the 2/3rd incremental capacity of 60,000 MT fixed under S.O. No. 478 on proportional basis which works out to 9889 MT only and also a direction was made therein that the refund of the tax paid on purchase of raw materials during the period of exemption has to be routed through the seller company, i.e., TISCO for the refund of the amount of the tax to the dealer company. After hearing the parties at length the writ application of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terials, i.e., HR coils for the production of the new product, i.e., TMBP which was not earlier produced in the unit of the petitioner for manufacture of ETP.......' But it is seen from the refund order dated August 10, 2002 passed by the Joint Commissioner of Commercial Taxes (Admn.), Jamshedpur, and other related records that he has passed the refund order taking the view that all cold rolled products come under TMBP. This needs to be looked into. 5.. In the said situation the petitioner has once again come before this Court by filing this application for modification/clarification of the order dated May 10, 2002 passed in C.W.J.C. No. 2857 of 2000 (R). The petitioner has stated in the modification petition that from the perusal of the entire judgment it appears that this Court has been pleased to hold that the petitioner is entitled to exemption on the entire raw materials and not only for the manufacture of TMBP and in para 13 of the said judgment only the word TMBP has been used and the words and other cold rolled products like FHCR has been inadvertently left out. It is also stated that from a proper reading of the tenor and the purport of the judgment of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om April 5, 1996 to March 31, 1998 and which have been used for the manufacture of new product, viz., TMBP and other cold rolled products are to be granted exemption and in the facts and circumstances of this case the observation made by this Court in para 13, viz., the petitioner is entitled to full exemption in respect of the sales tax paid on the purchase of raw materials, i.e., HR coils for the production of new product, i.e., TMBP which was not earlier produced in the unit of the petitioner for manufacturing ETP may be suitably amended so as to include after the words for the production of the new products, i.e., TMBP and other CR products including FHCR, CRGC and CRGP which were not earlier produced in the unit of the petitioner in order that the true purport and intent of the judgment may be properly reflected. 6.. The case of respondent Nos. 2 to 5 in their counter-affidavit is that the modification petition filed by the petitioner is not maintainable as it tantamounts to reopen the entire matter afresh which is not at all permissible under section 152, C.P.C. It is alleged that the petitioner by way of its modification petition has prayed before this Court to emba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company of India Limited v. State of Bihar [2004] 135 STC 385. 7.. It has been submitted by the learned counsel for the petitioner that the petitioner had set up a plant for manufacturing TMBP and other CR products under a separate licence granted by the Ministry of Industries, Government of Bihar, and in terms of the Industrial Policy of the Government of Bihar the petitioner is entitled to full exemption from sales tax in respect of the raw materials, i.e., HR coils which the petitioner has purchased for manufacture of TMBP coils and other CR products and the said TMBP and other CR products are new products not earlier manufactured by the petitioner. It has also been contended that the petitioner by way of diversification of his factory set up a cold rolling mill having a total production capacity of 1,20,000 MT and has also manufactured FHCR, CRGC, CRGP and other cold rolled products and the raw materials for the aforesaid manufacture of TMBP and other CR product aforesaid are HR coils and the petitioner is entitled for full exemption on the entire HR coils purchased by him as raw materials for the production of the aforesaid new product. It has also been submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the averments made in the writ petition are very much explicit from which it appears that exemption was sought by the petitioner only in respect of HR coils used as raw materials for the production of TMBP and in this view of the matter the finding of this Court in para 13 of the judgment allowing exemption to the petitioner and the refund of the sales tax regarding the HR coils as raw materials for the manufacture of TMBP, i.e., a new product is quite valid and omission of the words other CR products therein is intentional one and it cannot be said that the said omission is due to innocent inadvertence or accidental slip or typographical error. It has also been contended that in the facts and circumstances of this case the modification, as prayed, is not at all required, as it will reopen the entire matter for adjudication afresh. It has also been submitted that the judgment dated May 10, 2002* passed in C.W.J.C. No. 2857 of 2000 (R) has reached its finality and the same has already been acted upon and as such the question of any modification or clarification in the said judgment is not at all required. In support of his contention reliance has been placed upon the case of Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 7(3)(b) of the Bihar Finance Act, 1981 which also provides for the same benefit of exemption from payment of sales tax on purchase of raw materials to the industry which has started production on or after September 1, 1995 up to August 31, 2000. Clause 15 of the said notification provides for exemption from payment of sales tax on purchase of raw materials to the units, which have undertaken expansion/diversification/ modernisation and clause (15.4) further clarifies that in case of expansion the exemption is available beyond 2/3 rd of its original production capacity or the average production of three years prior to expansion/ diversification/modernisation. However it has been further clarified that in case of diversification the benefit would be available only in respect of such raw materials, which were not earlier utilised by such entrepreneur for production of its finished goods. It is further stated that in terms of the said notification, the petitioner is entitled to full exemption from sales tax in respect of the raw materials, viz., HR coils which the petitioner purchased for the manufacture of TMBP coils used for manufacture of electrolytic tin plate. The said TMBP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... countries for the manufacture of ETP and by setting cold rolling mill the petitioner's factory started producing a new product known as TMBP used as a raw material for the manufacture of ETP. HR coil is the raw material for the manufacture of said TMBP, a new product. The next important document is the order dated September 22, 1998/September 23, 1998 of JCCT (Admn.), Jamshedpur Division, Jamshedpur, whereby exemption from payment of sales tax was granted to the petitioner. The said order is at pages 70A and 71A of the brief. The order aforesaid is quoted hereunder for proper appreciation: The applicant Tinplate Co., has given an application stating that the new unit installed and has started production, is producing different from their earlier product and the raw material is also different. They have clarified that earlier they were producing electrolytic tin plate (ETP) and the raw material for this tin mill black plate (TMBP), was being imported from other countries. Now their company has installed a new unit with an approximate investment of Rs. 300 crores to produce TMBP, the raw material for which is hot rolled coils (HRC). Therefore, the product of the new unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of other CR products. Even the order of exemption referred to above testifies the fact that exemption was granted to the petitioner regarding HR coils used as raw material for the TMBP only as new product in pursuance of S.O. No. 478 dated December 22, 1995 read with S.O. No. 57 dated March 2, 2000. In view of the averments contained in the writ petition of the petitioner read with the order of exemption referred to above coupled with abovementioned statutory notification issued in pursuance of the Industrial Policy of the State of Bihar it was observed in para 13 of the judgment dated May 10, 2002 passed in C.W.J.C. No. 2857 of 2000 (R) that the petitioner is entitled to full exemption in respect of the sales tax paid on the purchase of the raw materials, i.e., HR coils for the production of the new product, i.e., TMBP which was not earlier produced in the unit of the petitioner for manufacture of ETP . Therefore, it cannot be said that there is innocent omission due to inadvertence or accidental slip or typographical error in the said observation whereby the words other CR products have not been included therein after the words TMBP . It is equally relevant to mention h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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