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TMI Blog2009 (11) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... , JJ. The judgment of the court was delivered by R. B. MISRA J. The present Sales Tax Reference No. 1 of 2007 has been preferred by the applicant Excise and Taxation Commissioner in respect of an order dated July 6, 2007 passed in Ref. 4 of 2009 of Financial Commissioner (Appeals), whereby the said reference preferred under section 33 of the H.P. General Sales Tax Act, 1968, was allowed on two points after allowing the application preferred under section 5 of the Limitation Act for condonation of delay. Being aggrieved by the above order condoning the delay and allowing reference, M/s. Suraj Industries Ltd., has also preferred a Writ Petition No. 71 of 2008. In order to deal the reference and the writ petition, it is necessary to give the factual background of the case. It appears that M/s. Suraj Industries Limited, a small-scale industrial unit (in short, the SS unit ) is engaged in manufacturing vegetable ghee and refined oil. The said industry has been declared as pioneer unit by the State of HP, vide notification dated October 18, 1993, whereby, the said industry has been exempted from payment of tax for manufacturing vegetable ghee and refined oil. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined after obtaining the legal opinion, an application under section 33(1) was moved on July 15, 2002 before learned Tribunal for making a statement of case to the High Court for adjudicating the legal questions involved in the case. Accordingly, the said Reference No. 4 of 2002 was preferred. The Financial Commissioner (Appeals), H.P. vide its order dated July 6, 2007 has allowed the application of condonation of delay and referred the following two questions of law, as statement of case to the High Court for adjudication: (i) Does the residue or by-product of a main commodity or product which is exempted from tax also qualify for tax exemption when the Government notification does not provide for such exemption specifically? (ii) Does submission of the statutory form C is required to be submitted for claiming tax exemption in reference to the transaction of exempted products made in inter-State sale? The observations made in the order dated July 6, 2007 are given as below: The first issue to be considered here is to subject of limitation. The order of the Tribunal is dated December 15, 2000 whereas the reference application has been filed by the Excise and Taxation C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is made by dealer, require the Financial Commissioner to refer to the High Court any question of law arising out of such order. (2) If, for reasons to be recorded in writing, the Financial Commissioner refuses to make such reference, the applicant may, within 30 days of such refusal, either (a) withdraw his application (and if he does so the fee paid shall be refunded); or (b) apply to the High Court against such refusal. (3) If upon the receipt of an application under clause (b) of subsection (2), the High Court is not satisfied of the correctness of the Financial Commissioner's decision, it may require the Financial Commissioner to state the case and refer it, and on the receipt of such requisition, the Financial Commissioner shall state and refer the case accordingly. (4) If the High Court is not satisfied that the statements in a case referred under this section are sufficient to enable it to determine the question raised thereby, it may refer the case back to the Financial Commissioner to make such additions thereto or alterations therein as the court may direct in that behalf. (5) The High Court upon the hearing of any such case shall decide the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by an application for setting aside such award 'in accordance with' sub-section (2) and sub-section (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in section 34, sub-section (3) would not be an application 'in accordance with' that sub-section. Consequently by virtue of section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under section 34 is emphasised by the provisions of section 36 which provide that: 'where the time for making an application to set aside the arbitral award under section 34 has expired . . . the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court'. This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to 'proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow (section 17)'. Now the consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jamshedpur [2008] 12 VST 542; [2008] 3 SCC 70; [2007] 14 SCALE 610 the scope for condonation of delay beyond the prescribed period was considered. It was, inter alia, noted as follows (at page 544 of VST): '6. At this juncture, it is relevant to take note of section 35 of the Act which reads as follows: 35. Appeals to Commissioner (Appeals). (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) (hereafter in this Chapter referred to as the Commissioner (Appeals)) within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. 7.. It is to be noted that the periods sixty days and thirty days have been substituted for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. Plain reading of section 33(1) reveals that within 60 days from passing of the order of the Financial Commissioner, dealer or the Commissioner may, by application in writing, require the Financial Commissioner to refer to the High Court any question of law arising out of such order. It is very clear that the statute, i.e., above Act prescribes only 60 days period. It is necessary to refer to section 30 of the Himachal Pradesh General Sales Tax Act which provides as under: 30. (1) An appeal from every original order passed under this Act or Rules made thereunder shall lie (a) if the order is made by an assessing authority or by an officer in charge of the check-post or barrier or any other officer not below the rank of the Excise and Taxation Officer, to the Deputy Excise and Taxation Commissioner; (b) if the order is made by the Deputy Excise and Taxation Commissioner, to the Commissioner; (c) if the order is made by the Commissioner or any officer exercising the powers of the Commissioner, to the Financial Commissioner. The provisions of section 30(4) specifically provide that the appellate authority may allow, for reasons to be recorded in writing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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