9911796707
TMI Blog2015 (9) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... The Additional Government Advocate, Assam, K. N. Choudhury, Senior Advocate, R. Dubey, D. Barua and B. K. Kashyap for the petitioner. Dr. AK Saraf, Senior Advocate, M. L. Gope, N. Hawelia and A. Goyal for the respondents. ORDER This writ appeal has been filed by the Commissioner of Taxes, Assam, as the appellant, against the judgment and order dated June 5, 2004 (Megha Assam Coal Mines (India) Ltd. v. State of Assam [2005] 140 STC 339 (Gauhati)), passed by the learned single judge, allowing W. P. (C) No. 3101 of 2000, filed by the respondents. The appellant was the third respondent in the writ petition. Writ petition was filed by the respondents challenging cancellation of eligibility certificate, which was allowed by the writ court by quashing the impugned orders of cancellation. Facts of the case may be briefly noted. Respondent No. 1, i.e., Megha Assam Coal Mines (India) Ltd. had set up a new industrial unit for manufacture of washed clean coal from raw coal, medium coal and lump coal. In such process, the ash content of coal would be reduced from 25 per cent. to five per cent. It may be stated that the Government of Assam had announced an industrial pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... production of washed clean coal from ordinary coal. It was also alleged that respondent No. 1 did not install any plant and machinery to enable it to obtain eligibility certificate. Respondent No. 1 submitted reply dated April 7, 2000 contending that in the processing of washed clean coal from ordinary coal, a manufacturing process is undertaken and washed clean coal has a distinct identity and commercial use. Allegation of non-installation of plant and machinery was denied. It was pointed out that all these aspects were gone into at the time of conducting inquiry before grant of eligibility certificate. The General Manager, District Industries and Commerce Centre, Kamrup, Guwahati, passed an order dated June 3, 2000 rejecting the reply submitted by respondent No. 1 and cancelled the eligibility certificate dated March 31, 1998 from the date of issue. Consequential formal order was issued by the said General Manager on June 5, 2000. Aggrieved, respondent No. 1 along with one of its directors approached this court by filing W. P. (C) No. 3101 of 2000 (Megha Assam Coal Mines (India) Ltd. v. State of Assam [2005] 140 STC 339 (Gauhati)), challenging the legality and validity of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Taxes have no role either in the grant of eligibility certificate or in the cancellation of such certificate. Therefore, the appeal ought to have been filed by the State represented by the Industries Department. Appeal filed at the instance of the Commissioner of Taxes is not maintainable. Regarding jurisdictional competence of the authority who submitted the report on the basis of which the eligibility certificate was issued, he submits that this was not a ground taken in the show-cause notice or formed the basis for cancellation of the eligibility certificate. Therefore, such submission is wholly untenable. On merits, learned senior counsel submits that the view taken by the learned single judge is the correct view and no interference is called for. Eligibility certificate was cancelled on grounds which were not mentioned in the show-cause notice. Further, the question as to whether the particular activity involves manufacturing process would have to be examined in the light of the definition of manufacture , as given in the Assam General Sales Tax Act, 1993 ( the 1993 Act hereafter). Definition of manufacture under the 1993 Act is a wide one encompassing a wide range o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Department of Industries must be taken to be the voice of the State. This decision was approvingly referred to in the subsequent decision of the apex court in Pondicherry State Cooperative Consumer Federation Ltd. v. Union Territory of Pondicherry reported in [2007] 10 VST 630 (SC); [2008] 1 SCC 206. Thus, on a careful consideration of the above decisions, it becomes evident that in matters of eligibility certificates, the State must speak through the Industries Department. Therefore, in the factual context of the present case, it is the Industries Department which is the aggrieved party and not the Sales Tax Department. On the other hand, article 300 of the Constitution of India provides that the Government of India may sue or be sued by the name of Union of India and the Government of a State may sue or be sued by the name of the State. Section 79 of the Civil Procedure Code deals with suits by or against the Government. It says that in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, in the case of the Central Government, the Union of India and in the case of the State Government, the State. The aforesaid prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. We may look at it from another angle. Had the State and the General Manager filed an appeal after six years, would the same not have been barred by limitation ? The answer would obviously be in the affirmative. Moreover, the affidavit in support of the said application is sworn by the General Manager. Nothing has been placed on record to show that the said General Manager was authorized by the State to file an application on its behalf seeking impleadment as appellant. Thus, from a dispassionate consideration of the above, it is clear and evident that the writ appeal filed at the instance of the Commissioner of Taxes, Assam is not maintainable. In view of the finding arrived at above, the writ appeal can be dismissed 25 without adverting to the other issues involved. However, keeping in mind the observation of this court in the order dated September 27, 2012, we deem it appropriate not to confine the adjudication of the appeal to the above issue only. Whether cancellation of eligibility certificate was justified. As already noticed above, the show-cause notice was issued to respondent No. 1 for cancellation of eligibility certificate on two grounds. Firstly, no manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for issuance of the eligibility certificate would reveal that the writ petitioners had not specified that any plant or machinery would be installed. Therefore, not finding of any plant and machinery at the site of the industrial unit could not have been made a ground for cancellation of the eligibility certificate. 87. Admittedly, the processing unit did not involve any plant and machinery. It has been submitted by the petitioners that the process of manufacturing of washed clean coal is undertaken manually thereby creating an opportunity for wide scale employment of local labour. That being the position, it is difficult to understand as to how the authorities concerned expected to find any plant or machinery at the said site. It is nobody's case that industrial activity cannot be undertaken manually. The scheme with which we are concerned speaks about granting of eligibility certificate to an industrial unit. It does not specify that the industrial unit must be operated mechanically or with the aid of power. Therefore, this aspect of the impugned order does not hold water. We agree with the view taken by the learned single judge. The above could not have been a ground ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
