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TMI Blog2016 (9) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... th Form C and D and for inter-State sale transactions without Form C and D, benefit of notification dated 07.03.1994 would apply. The principle of res judicata would have no application in spite of the understanding by the assessee and the Revenue, for the circular dated 15.04.1994, is not to the specific effect as suggested and, further notification dated 07.03.1994 was valid between 1st April, 1994 up to 31st March, 1997 (upto 31st March, 1997 vide notification dated 12.03.1997) and not thereafter. The Commercial Tax Department, by a circular, could have extended the benefit under a notification and, therefore, principle of estoppel would apply, though there are authorities which opine that a circular could not have altered and restricted the notification to the determent of the assessee. The decision in the case Commissioner of Central Excise, Bolpur v. Ratan Melting and Wire Industries [2008 (10) TMI 5 - SUPREME COURT OF INDIA] relied upon where it was held that circulars and instructions issued by the Board are binding on the authorities under respective statute, but when this Court or High Court lays down a principle, it would be appropriate for the Court to direct that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cement, tax payable under sub-sections (1) and (2) of the said Section shall be calculated at the rate of 4% without furnishing declaration in Form C , inter alia, subject to the condition that the dealer making inter-State sales under this notification shall not be eligible to claim benefit provided by partial exemption notification dated 06.05.1986. This notification remained in force from 01.04.1994 to 31.03.1997. 3. The CCT vide Circular No. 2/94-95 dated 15.04.1994 clarified that inter-State sales of cement duly supported by C and D forms shall be eligible for benefit of partial exemption notification dated 06.05.1986 and that such benefit would not apply to inter-State sales which are not supported by declarations in declarations in Forms C / D . 4. By Notification No. 97-122 dated 12.03.1997 issued under Section 8(5) of the CST Act, the State Government rescinded the Notification No. 94-70 dated 07.03.1994 and directed that CST on inter-State sales of cement shall be calculated at the rate of 4% inter alia subject to fulfilment of the condition that the dealer making inter-State sales under this notification shall not be eligible to claim benefit provided by par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.01.2001 was issued to the appellant seeking to disallow the benefit under notification dated 06.05.1986 on the ground that the appellant had not calculated the benefits under notification dated 06.05.1986 after including the figure of sale of levy cement in the base year, that is, 1984-85. Against the said show cause notice Writ Petition bearing No. 551 of 2002 was filed which is pending before the High Court. 7. In exercise of power under Section 8(5) of the CST Act the State Government vide Notification No. 97-266 dated 21.1.2000 directed that tax payable under sub-sections (1) and (2) of the said Section on the inter-State sales of cement shall be calculated at the rate of 6% inter alia subject to the condition that the dealer making inter-State sales under this notification shall not be eligible to claim benefit provided under partial exemption notification dated 06.05.1986. 8. After a lapse of seven years from the previous circular dated 15.04.1994, the CCT issued another Circular No. 94-95/119 dated 16.04.2001 purporting to clarify the applicability of partial exemption notification dated 06.05.1986 vis-a-vis notification dated 07.03.1994 and subsequent notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Board allowed the appeal filed by the revenue. Against the order of the Tax Board, the appellant filed revision petition before the High Court and the learned Single Judge vide order dated 17.04.2009 considering the submissions put forth by the parties and upon analysing the principle stated in Tata Cummins Ltd. v. State of Jharkhand 2006 (16) Tax update 199, M/s Vividh Marbles Pvt. Ltd. v. Commercial Tax Officer 2007 (17) Tax update 307, State of Rajasthan v. J.K. Udaipur Udyog Ltd. and another(2004) 137 STC 438, MRF Ltd. Kottayam v. Asstt. Commissioner (Assessment) Sales Tax and ors. (2006) 8 SCC 702 and other authorities came to hold that condition no. 3 of Notification No. 21.01.2000 has to be given its plain and clear meaning and cannot be restricted only to the specific transaction of sale covered by notification dated 21.01.2000 itself and when the condition no. 3 unequivocally states that once the assessee avails of the benefit of concessional rate of tax under notification dated 21.01.2000, he cannot get the partial benefit as envisaged in the Notification dated 06.05.1986 and accordingly repelled the stand of the assessee. 13. We have heard Mr. S. Ganesh, learned sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 1984-85, calculated and determined by the assessing authority with the approval of the Commissioner, shall be deemed to be the percentage in respect of such dealer for the accounting year 1984-85; (3) This increase effected in the percentage, as referred to in clause (1) above in respect of the sales in the course of inter-State trade or commerce, to be considered shall be limited to the extent of the decrease in the percentage in respect of the despatch of goods to Head Office, Branch Office, Depot or agent outside the State for sale outside the State, during the relevant accounting year as against such percentage during the accounting year 1984-85; and (4) No claim for such reduction of tax shall be allowed in respect of levy-cement. 15. The notification dated 21.01.2000 is as under:- [No.F.4(1) FD/Tax Div. 97-266] Jaipur, 21 s t January, 2000 In exercise of the powers conferred by sub-section (5) of section 8 of the Central Sales Tax Act, 1956 the State Government being satisfied that it is necessary in the public interest so to do, hereby directs that the tax payable under sub-sections (1) and (2) of the said section, by any dealer having his place of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in the quantum or turnover is critical and significant. 17. The 21.01.2000 notification applies to a dealer having a place of business in the State and is in respect of sale of cement made by him from any place of business within the State in the course of inter-State trade or commerce. Apart from the above, certain other conditions are to be satisfied. They are (a) sales-tax in respect of inter-State sales as per the notification would be calculated at the rate of 6% and (b) the dealer making inter-State sales under notification dated 21.01.2000 would not be eligible to claim benefit provided in the notification dated 06.05.1986. Clause 3 of the notification lays down that if a dealer claims benefit under notification dated 21.01.2000, he is not eligible to claim the benefit under notification dated 06.05.1986. Benefit under the two notifications cannot be claimed at the same time. It is simple and clear. 18. A dealer making inter-State sales under the notification dated 21.01.2000 is disqualified and not eligible to claim benefit under the notification dated 06.05.1986. The reason is to deny dual benefit and also the notification dated 06.05.1986 computes the benefit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 07.03.1994 reads as under:- Notification No.F.4 (8) FD/Gr.IV/94-70 S.O. No. 200, Jaipur, dated March 7, 1994. In exercise of the powers conferred by sub-section (5) of section 8 of the Central Sales Tax Act, 1956 (Central Act 74 of 1956), and in supersession of this Department Notification No.F.4 (72) FD/Gr.IV/82-34, dated 27.06.1990, the State Government being satisfied that it is necessary in the public interest so to do, hereby directs that the tax payable under sub-sections (1) and (2) of the said section, by any dealer having his place of business in the State, in respect of the sales of cement made by him from any such place of business in the course of inter-State trade or commerce shall be calculated at the rate of 4 percent without furnishing of declaration in form C or certification in form D on the following conditions, namely:- (i) that the dealer shall record the name and full and complete address of the purchaser in the bill or cash memorandum for such inter-State sale to be issued by him; (ii) that the burden to prove that the transaction was in the nature of inter-State sale, shall be on the dealer; and (iii) that the dealer making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions in any financial year. For instance, if he opts for benefit under notification dated 06.05.1986 for the financial year 2000-2001, he would not be entitled to claim simultaneous benefit in the same year under the notification providing for reduce rate of tax on cement in course of interstate trade or commerce without any supportive Form C or D. Consequently, if the benefit of notification dated 21.01.2000 is being availed in any financial year, the dealer shall be debarred from claiming any benefit under notification dated 6.5.1986 for the same assessment year. Keeping in view the above status, the Circular No.F.16 (Budget)Tax/CCT/94-95/108 dated 15.04.1994 is hereby withdrawn and the dealers will be entitled to claim benefit of either of the two notifications in any financial year. Action may be taken accordingly. Sd/- (P.K.Deb) Commissioner 23. As the factual score would depict, Notification dated 07.03.1994 was applicable from 1st April, 1994 to 31st March, 1997. It was not applicable with effect from 1st April, 1997. In such a situation, the plea of the appellant that dual benefits were availed of under notification dated 07.03.1994 post 1st April, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. Circulars issued under tax enactments can tone down the rigour of law, for an authority which wields power for its own advantage is given right to forego advantage when required and considered necessary. This power to issue circulars is for just, proper and efficient management of the work and in public interest. It is a beneficial power for proper administration of fiscal law, so that undue hardship may not be caused. Circulars are binding on the authorities administering the enactment but cannot alter the provision of the enactment, etc. to the detriment of the assessee. Needless to emphasise that a circular should not be adverse and cause prejudice to the assessee. (See : UCO Bank, Calcutta v. Commissioner of Income Tax, West Bengal (1999) 4 SCC 599). 26. In Commissioner of Central Excise, Bolpur v. Ratan Melting and Wire Industries (2008) 13 SCC 1, it has been held that circulars and instructions issued by the Board are binding on the authorities under respective statute, but when this Court or High Court lays down a principle, it would be appropriate for the Court to direct that the circular should not be given effect to, for the circulars are not binding on the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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