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TMI Blog2002 (11) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... s under entry 206 of the First Schedule to the Act in the light of the notification S.R.O. No. 453/1983. The assessing authority completed the assessment for the year 1987-88 as per order dated February 27, 1998 accepting the same. Subsequently the Deputy Commissioner of Commercial Taxes, Kottayam, initiated suo motu proceedings under section 35 of the Act stating that in view of the supersession of S.R.O. No. 453/1983 by S.R.O. No. 1716/1987 dated December 26, 1987, the assessee is not eligible for the concessional rate of tax on the sale of tyres from December 26, 1987. After considering the objection filed by the assessee, the Deputy Commissioner set aside the assessment order dated February 27, 1998 and remanded the case to the assessing authority for fresh disposal in accordance with law. The assessee had challenged the said order in appeal before the Sales Tax Appellate Tribunal, Additional Bench, Kottayam, in T.A. No. 59 of 1999. The assessee and the department had filed two other appeals, i.e., T.A. Nos. 60 of 1999 and 101 of 1999 respectively on other matters with which we are not concerned in this revision. 3.. The assessee submitted before the Tribunal that S.R.O. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has also brought to the notice of the Tribunal that the Government had issued another Notification S.R.O. No. 362/1988 [G.O. (P) No. 39/88/TD] dated March 30, 1988) which provided for reduction of rate of tax, inter alia, on sale of tyres, tubes, etc., from 15 per cent to 6 per cent and submitted that this would clearly indicate that the concessional rate granted to those items in S.R.O. No. 453/1983 had been taken away by S.R.O. No. 1716/1987. The department further contended that if the Notification S.R.O. No. 453/1983 continued even after S.R.O. No. 1716/ 1987 in respect of the items not covered by S.R.O. No. 1716/1987 a similar supersession of S.R.O. No. 453/1983 should have been mentioned in S.R.O. No. 362/1988 or at any rate a mention would have been made about S.R.O. No. 453/1983 in the said notification. No such reference in S.R.O. No. 362/1988. 5.. The Tribunal had accepted the contention of the assessee by relying on the decision of the Supreme Court in Titaghur Paper Mills case [1985] 60 STC 213, and the explanatory note to S.R.O. No. 1716/ 1987 and held that the Notification S.R.O. No. 453/1983 continued to be in existence in respect of the three items not covered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly submitted that the Tribunal was perfectly justified in holding that the Notification S.R.O. No. 453/1983 governed the rate of tax on the sale of tyres by the assessee during the relevant period. 8.. As already noted, the only question required to be considered is with regard to the rate of tax on the sale of tyres during the relevant period. As per entry 206 of the First Schedule to the Act, tyres were taxable at the rate of 15 per cent. However, as per Notification S.R.O. No. 453/1983 the Government, in public interest, inter alia, had granted a reduction in rate [vide item (ii)] in the tax payable under the Act on the sale of motor vehicle tyres from 15 per cent to 10 per cent. Here it must be noted that the said notification granted reduced rate of tax in respect of four items which we have already mentioned earlier in this judgment, i.e, with respect to sale of light diesel vehicles, sale of motor vehicle tyres, sale of radio sets costing not more than Rs. 150 and also with respect to sale of television sets. In respect of the items (i), (ii) and (iv) the rate of tax was reduced from 15 per cent to 10 per cent and in respect of item (iii) from 12 per cent to 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the earlier notifications dated May 23, 1977 until they came into force on January 1, 1978. The Supreme Court also noted that sections 3-B and 5(1) of the Orissa Sales Tax Act in express terms confer power upon the State Government to issue notifications from time to time and that thus, the power of the State Government to issue notifications under these two sections is to be exercised by it from time to time and, therefore, the State Government can under section 5(1) issue a notification and repeal and replace it by another notification enhancing or lowering the rate of tax and similarly it can issue a notification under section 3-B declaring particular goods or class of goods to be liable to tax on the turnover of purchases and subsequently by another notification repeal that notification with the result that the particular goods or class of goods will from the date of such repeal be again liable to pay tax on the turnover of sales. The Supreme Court further observed at page 248 of the report as follows: In the notifications dated December 29, 1977 the word 'supersession' is used in the same sense as the word 'repeal' or rather the words 'repeal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication will have effect till its supersession and the same will be ineffective only from the date of such supersession. 11.. S.R.O. No. 453/1983 was a notification which was issued in supersession of the S.R.O. No. 98/1982 which provided for reduced rate of tax on light diesel vehicles, motor vehicle tyres and television sets from 15 per cent to 9 per cent and on radio sets liable to pay licence fees of Rs. 7.50 only per year from 12 per cent to 9 per cent. The Government after superseding the said notification dealt with all the four items in the Notification S.R.O. No. 453/1983. However the Government while issuing S.R.O. No. 1716/1987 superseding S.R.O. No. 453/1983 did not choose to include the items (ii) to (iv) in S.R.O. No. 453/1983 in the said notification. In fact the Government had issued a separate Notification S.R.O. No. 362/1988 providing for reduction in the rate of tax in respect of 11 items including tyres and tubes of bicycles and tandem cycles (item No. 2), tyres, tubes and flaps for motor vehicles including trucks, buses, motor cycles, motor scooters, mopeds and motorists (item No. 10) with effect from April 1, 1988, from 6 per cent to 4 per cent in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rate of tax can be exercised either prospectively or retrospectively. However, the cancellation or the variation of the notification issued under subsection (1) can only be prospective. Thus, it is clear that the Government has got the power either to cancel or vary a notification issued under sub-section (1). The effect of the word supersession used in S.R.O. No. 1716/1987 would mean that what is done is to cancel the earlier Notification S.R.O. No. 453/1983 and to confine the reduction only to some item covered by the earlier notification with further relief. This can be understood as variation of the Government Notification S.R.O. No. 453/1983 also. 12.. The Notification S.R.O. No. 1716/1987 is clear that it supersedes/repeals the earlier Notification S.R.O. No. 453/1983 and grants the benefit of reduction in the rate of tax only in respect of certain items covered by the S.R.O. No. 453/1983. As held by the Supreme Court in Titaghur Paper Mills case [1985] 60 STC 213 mentioned above the effect of supersession of a notification by a subsequent notification is that the earlier notification comes to an end from the date of the latter notification without wiping out the conse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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