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TMI Blog2015 (2) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... tion put by the Government for the admissibility of the set off under the said rule 41-E ?" 2. The order passed by the Tribunal on Reference Application No.32 of 2000 dated 17th September, 2002 refers to the basic facts. Before referring to them we must mention that the Reference arose in the context of the judgment dated 13th April, 2000 delivered by the Tribunal in Second Appeal Nos.2162 and 2163 of 1998. The second appeals were filed by the respondent - assessee before us. The Respondent - assessee is duly served. Mr.Thakkar appearing on behalf of the respondent - assessee undertakes to file Vakalatnama within a period of one week, if not already filed. 3. The Tribunal exercised the jurisdiction under section 61 of the Bombay Sales Taxes Act, 1959 (for short "BST") in referring these two questions in the backdrop of the following facts :- The Respondent - assessee/original appellant in Second Appeal Nos.2162 and 2163 of 1998 is engaged in the activity of conversion of S.S.Flats into S.S.Patta and in the context of the said activity, it is duly registered under the Bombay Sales Taxes Act, 1959. The case of the assessee is that it purchases S.S.Flats locally in the State of Mah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Udyog Vs. State of Maharashtra which has been delivered by the Tribunal in Second Appeal No.229 of 1998 dated 7th November, 1998. However, there is in field a larger bench judgment of the Tribunal and which has been delivered on 25th October, 2001 in Second Appeal Nos.638 and 639 of 1998 and Appeal Nos.72 and 73 of 1999. That lays down the principle that the tribunal is a creature of the Statute, namely, Bombay Sales Tax Act, 1959. It cannot declare any provision either under the same statute as unconstitutional or ultra vires and that can only be done by the Court which is exercising the constitutional powers and jurisdiction. 5. It is in these circumstances that the revenue sought reference of the above two questions to this Court. The reference application in that behalf has been allowed and two questions are forwarded for our opinion. 6. Mr.Sharma, learned A.G.P. appearing on behalf of the Revenue submits that the Tribunal ought to have noted that it is a creature of the Statute. It cannot decide the issue of validity and constitutionality of the provisions in the Statute. In the present case, the tribunal purported to declare rule 41E as ultra vires and unconstitutional by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional. The tribunal has relied on ratio of the judgment of the Supreme Court which declares identical rule or provision as unconstitutional and ultra vires Article 304(a) of the Constitution of India. 9. In such circumstances it is erroneous to urge that the tribunal has declared any statutory provision or rule as unconstitutional. The Reference, therefore, does not deserve to be answered as suggested and in favour of the revenue. 10. We have with the assistance of both counsel perused the Reference Application, the order made therein and the tribunal's order in the second appeal. We have also perused the tribunal's order in the matter of M/s.Uday Udyog Vs. The State of Maharashtra. We have also perused the judgment of the larger bench of the tribunal. Since the Reference has been made in the light of the larger bench judgment of the Tribunal dated 25th October, 2001 holding that the tribunal being a creature of the BST Act cannot ignore the statutory provisions that we have to essentially answer the questions forwarded on this basis. In other words, whatever may be wording of the questions, in effect and substance, the exercise undertaken by the tribunal in this case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods or scrap goods or by products) ("specified in entry 6 of Schedule B") for sale or export, grant him a drawback, set-off or as the case may be, a refund of the aggregate of the sums determined is in accordance with the provisions of rule 41D. Provided that, drawback, set-off or as the case may be, refund shall be granted under this rule where the goods manufactured by the claimant dealer have been sold by him in the State in respect of which sale the claimant dealer has been allowed deduction under clauses (i), (ii) or (iii) or sub-section (2) of section 7 of the Act". Provided further that where the process of manufacturing results in the production of goods specified in entry 6 of Schedule B as well as goods other than those specified in entry 6 of Schedule B, then such drawback, set-off or as the case may be, the refund shall be apportioned as between goods specified in entry 6 of Schedule B and the goods other than those specified in entry 6 of Schedule B (on the basis of the purchase price of goods specified in entry 6 of Schedule B used in the process of manufacture and shall be allowed only to the extent to which it pertains to the manufactured goods specified in ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questions have to be answered by holding that issue of constitutionality and legality of rule 41E to the extent noted above could not have been decided by the tribunal in the second appeal of the assessee. It has clearly erred in law in undertaking the exercise of deciding the constitutionality and legality of the said rule. Therefore, the two questions will have to be answered by holding that the claim which was made in alternate would have to be dealt with and decided on the touch stone of rule 41E as it stood at the relevant time and its clear language. The tribunal could not have ignored the same in dealing with the alternate claim.
15. However, we clarify that when we answer the Reference in the above terms and the questions posed and forwarded to us it should not be held that we have expressed any opinion on the legality and constitutionality of the rule 41E of the Bombay Rules. That issue will have to be decided on its own merits and in accordance with law at an appropriate stage and in appropriate jurisdiction. For the present, in the backdrop of the powers of the tribunal that we have answered this Reference as above. It is accordingly disposed of. X X X X Extracts X X X X X X X X Extracts X X X X
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