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TMI Blog2016 (7) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... ea that time limit cannot be applied to credit accrued prior to the amendment and introduction of amendment to rule is arbitrary cannot be availed. - SALES TAX REFERENCE NO. 2 of 2005 - - - Dated:- 4-7-2016 - MR. KS JHAVERI AND MR. G.R.UDHWANI, JJ. FOR THE APPELLANT : MR HARDIK P MODH, ADVOCATE FOR THE RESPONDENT : MR HARDIK VORA, ASST GOVERNMENT PLEADER ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. The applicant State of Gujarat under Section 69 of the Gujarat Sales Tax Act, 1969 made an application before the Tribunal to refer to this Court a question of law arising out of Tribunal s judgement and order dated 17.08.1995 in Revision Application No. 2/94. Accordingly, a statement of case was drawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed the application and set aside the part of the order so far it related to levy of interest u/s 47(4A) of the Act. The rest of the order was confirmed by the Tribunal. The applicant therefore made an application for referring the question of law to this Court. 3. Mr. Hardik Modh, learned advocate for the applicant has drawn the attention of this Court to Section 67 of The Gujarat Sales Tax Act, 1969 and submitted that the amendment made by the legislature in section 67(1)(a) of the Act applied to pending proceedings and the order passed by the Assistant Commissioner of Sales Tax in suo motu revision was passed after more than 12 months from the date of amendment u/s 67(1)(a). He submitted that the same was passed after the period of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order within 12 months from the date of service of notice would not apply in the instant case. He submitted that since the proceedings were initiated much prior to the amendment, the contention raised by the applicant cannot be sustained. 5. Heard learned advocates for both the sides. Section 67(1)(a) of the Act reads as under: 67. Revision : (1) Subject to the provisions, of section 66 and to any rules which may be made in this behalf :- (a) the Commissioner of his own motion within three years [or on application made to him within one year] from the date of any order passed by any officer appointed under section 27 to assist him may call for and examine the record of any such order and pass such order thereon as he thinks ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods existed. In that background, this Court held that by Section 37 of the Act, the authorities concerned cannot make a Rule which could take away the said right on goods manufactured prior to the date specified in the concerned Rule. In the facts of Eicher's case (supra), it is seen that by introduction of Rule 57F(4A) to the Rules, a credit which was lying unutilized on 16.3.1995 with the manufacturer was held to have lapsed. Therefore, that was a case wherein by introduction of the Rule a credit which was in the account of the manufacturer was held not to be available on the coming into force of that Rule, by that the right to credit itself was taken away, whereas in the instant case by the introduction of the second proviso to Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there was no time whatsoever given to some of the manufacturers to avail the credit after the introduction of the Rule also is based on arbitrariness of the Rule, and the same also will have to be rejected on the ground that there is no challenge to the validity of the Rule. 9. Without such a challenge, the appellants want us to interpret the Rule to mean that the Rule in question is not applicable in regard to credits acquired by a manufacturer prior to the coming into force of the Rule. This we find it difficult because in our opinion the language of the proviso concerned is unambiguous. It specifically states that a manufacturer cannot take credit after six months from the date of issue of any of the documents specified in the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty had not expired and, therefore, by this well recognised principle of interpretation the period of limitation stood enhanced or enlarged up to March 31, 1972, so far as the facts of this case were concerned. In this order, the Tribunal has observed in paragraph 1 : If we consider that the penalty has been imposed under the Act as it stood before amendment in 1970 then it is clearly out of time. Even if the amendment of 1970 has to be taken into consideration then the Inspecting Assistant Commissioner is not competent to impose the penalty. Hence, in any of the alternative views, penalty cannot be sustained. At least so far as the question of limitation is concerned, it is obvious that the old section cannot apply after the Ame ..... X X X X Extracts X X X X X X X X Extracts X X X X
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