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TMI Blog2019 (9) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... ned to the word goods appearing in the second half of Section 8(3)(b) of the CST Act, by the Apex Court in view of the peculiar facts of that case, as in that case, the benefit of Section was given to the printers publishing the 'newspapers' who were not liable to any tax on the sale of 'newspapers' published by them or that they were enjoying the freedom of press under Article 19(1)(a) of the Constitution of India. The only difference in the definition of pre and post amendment of goods as given under Section 2(d) of the CST Act is that earlier the definition was having a wider connotation, empassing into it almost all types of goods, except five goods mentioned therein, i.e., newspapers, actionable claims, stocks, shares and securities, whereas after the amendment the restricted meaning has been given to the word goods which shall include the six items only, which are presently there in the Act. The dealers are entitled to continue to be registered under Section 7(2) of the Act, irrespective of the fact whether they are liable to pay any tax to State or not. We do not find any merit in the submission of the learned counsel for the State that, since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of law is involved in all these writ applications, they have been heard together, and are being disposed of by this common Judgement. 3. Some of the writ petitioners before us are engaged in manufacturing process, some of them are engaged in mining activities and some of them are engaged in power generation. They are the bulk purchasers of 'high speed diesel', which they require for their manufacturing process / mining activities / generation of power, as the case may be, which is used in manufacturing, mining, or generation of the goods, which are their end products available for sale. Admittedly, their end products do not come within the definition of 'goods' as defined under Section 2(d) of the Central Sales Tax Act, (hereinafter referred to as the 'CST Act'), whereas 'high speed diesel', which they require in their manufacturing process, comes within the definition of 'goods' as defined under the CST Act. 4. All the petitioners are aggrieved by the impugned circular dated 11.10.2017, issued by the State of Jharkhand, in its Commercial Taxes Department, denying the issuance of Form- C for all the items ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CST Act in the definition of 'goods' as defined under Section 2 (d) of the CST Act. The said definition which was earlier having very wide in scope, and included all materials, articles, commodities and all other kinds of movable property, excluding five items, namely, newspapers, actionable claims, stocks, shares and securities, was now given a very restricted meaning, including only six items within the definition of 'goods', which after the amendment stood as follows :- Section 2(d) - goods means - (i) petroleum crude; (ii) high speed diesel; (iii) motor spirit (commonly known as petrol); (iv) natural gas; (v) aviation turbine fuel; and (vi) alcoholic liquor for human consumption; 6. Some other sections of the CST Act also needs to be looked into, in order to appreciate the controversy involved in these writ applications,. Section 2 (i) defines Sales Tax Law as follows:- ( i) sales tax law means any law for the time being in force in any State or part thereof which provides for the levy of taxes on the sale or purc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ork or in mining or in the generation or distribution of electricity or any other form of power; *** *** *** (4)The provisions of sub-section (1) shall not apply to any sale in the course of inter-State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner a declaration duly filled and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in a prescribed form obtained from the prescribed authority: It is under the provision of Section 8(4) of the CST Act, that Form-C is issued to the entitled dealers by the State Government. 7. Section 9 sub-Sections (1) (2) of the State GST Act shall also be relevant for the purpose of consideration of these writ applications, which reads as follows:- 9. Levy and collection. -(1) Subject to the provisions of sub-section (2), there shall be levied a tax called the Jharkhand goods and services tax on all intra-State supplies of goods or services or both, except on the supply of alcoholic liquor for human consumption, on the value determined under section 15 and at such r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of Revenue, New Delhi, issued letter dated 01.11.2018, addressed to Commissioners of Commercial Taxes of all the States / Union Territories on the subject regarding issuance of Form-C, making further clarification to its earlier OM dated 07.11.2017, stating that in view of the Judgment passed by the Punjab and Haryana High Court in Carpo Power Limited case, which was upheld by the Hon ble Supreme Court by its Order dated 13.08.2018 in SLP No.20572 of 2018, the matter had been examined by the Department of Revenue in the Central Government and it was decided to forward the copy of the aforesaid Judgment to the State Governments for compliance in their respective States. Thus, according to the Central Government in its Ministry of Finance, Department of Revenue, the issue in question had been set at rest in view of the decision of the Punjab and Haryana High Court, in Carpo Power Limited case, as affirmed by the Hon ble Supreme Court. 10. When these matters were taken up by this Court on 01.07.2019, we were informed that no decision had been taken by the State of Jharkhand with respect to the letter dated 1.11.2018 issued by the Central Government and upon the praye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the opinion of the learned Advocate General, the State Government has taken the stand through its letter dated 21.08.2019, addressed to the learned Senior Standing Counsel-III, Jharkhand High Court, that those dealers who have migrated to GST regime and who are not selling the aforesaid six goods covered under Section 2 (d)of the CST Act, are not covered under Section 7(1) of the CST Act as well. Even as per the definition of the 'Sales tax laws' under Section 2(i) of the CST Act, the word goods shall mean only those goods as defined under Section 2(d) of the CST Act, and those dealers are out of the purview of the State GST Act. In the present situation only JVAT Act comes under the 'sales tax laws', under which the petitioners are not liable to be taxed. As such, those dealers shall not even qualify to be registered under Section 7(2) of the CST Act, and accordingly, they shall not be entitled even for issuance of Form-C under the CST Act. 12. Learned counsels for the writ petitioners have submitted that the impugned notification dated 11.10.2017 is absolutely illegal and has been issued on absolutely non est reasoning that since the dealers ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occurring for the fourth time (i.e., in the latter half) cannot obviously refer to raw material. ------------ . It should also be remembered that Section 2 which defines certain expressions occurring in the Act opens with the words: In this Act, unless the context otherwise requires . This shows that wherever the word goods occurs in the enactment, it is not mandatory that one should mechanically attribute to the said expression the meaning assigned to it in clause ( d ) . Ordinarily, that is so. But where the context does not permit or where the context requires otherwise, the meaning assigned to it in the said definition need not be applied. If we keep the above consideration in mind, it would be evident that the expression goods occurring in the second half of Section 8(3)(b) cannot be taken to exclude newspapers from its purview. The context does not permit it. -------------------. (Emphasis supplied). Placing reliance on this decision it is submitted by learned counsels for the writ petitioners that since the use of the expression goods in the second half of the clause, i.e., on the 4th occasion, cannot be understood in the same sense as defined under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by learned counsels that for cancellation / amendment registration under Section 7 of the CST Act, there is specific procedure prescribed under under Section 7(4) of the CST Act itself, and there can be no occasion to bring their registration to an automatic end. 16. Learned counsels have further submitted that all these questions have been elaborately decided by the Punjab and Haryana High Court in Carpo Power Limited's case (supra), in which the same stand was taken by the State Government for denying the issuance of Form-C after the coming into effect of GST regime, and pursuant to the amendment in the definition of 'goods' under Section 2(d) of the CST Act. The Punjab and Haryana High Court has also taken into consideration the various provisions of the GST Act applicable in the State, and has come to the conclusion that even after the implementation of the State GST Act in the State of Punjab and Haryana, a further notification under Section 9(2) of the State GST Act not having been issued, it was held that the petitioner therein though was not liable to pay tax under the CST Act, but was still liable to pay tax under the HGST Act 2017, and as such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the petitioners pointed out that the Government of India, which had earlier come up with the OM dated 07.11.2017, stating that the term goods referred in Section 8(3)(b) of the CST Act will have the same meaning as defined and amended under Section 2(d) of the CST Act, has now come up with another clarification, vide its letter dated 01.11.2018, issued to all the Commissioners of Commercial Taxes in all the States and Union Territories, with respect to the definition of 'goods' under Section 8(3)(b) of the CST Act and issuance of Form-C, stating that the matter has been finally settled by the Hon ble Punjab and Haryana High Court and also upheld by the Hon ble Supreme Court, and accordingly, all the Commissioners of the Commercial Tax of all the States and Union Territories were asked for compliance of the aforesaid decision in their respective States. Learned counsels accordingly, submitted that the matter is now fully covered with the aforesaid decisions and the issue has now been set at rest by the Government of India, by its aforesaid letter dated 01.11.2018, and accordingly, the impugned notification dated 11.10.2017 issued by the State Government, cannot be susta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned counsel for the State that the Special Leave to Appeal preferred against the said Judgment has been dismissed in limine by the Hon ble Apex Court, and no decision has been given on merits. Simply due to the fact that the Special Leave to Appeal has been dismissed, the Judgment rendered by the Punjab and Haryana High Court cannot be said to be a binding precedent for this High Court. Learned counsel further endorsed the opinion of the learned Advocate General given to the State Government, that in some of the matters, in which, the mining contractors are performing the contractual works and by utilising Form-C, they are buying VAT items, in these cases high speed diesel, at liability of tax at 2%, whereas the price of high speed diesel which they are receiving from their employer is at the rate of the State VAT, which is 22% approximately. Learned counsel submitted that the state exchequer is being put to a great loss by this practice by some of the contractors, who are also petitioners in some of these matters. Learned counsel accordingly, submitted that for checking this situation, it is necessary for the State Government to have a control over issuance of Form-C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the learned counsel for the State, with regard to some of the writ petitioners, stating that they are taking the benefit of the concessional rate of tax under the CST on the basis of Form-C issued and they are still receiving from their employer of State VAT which is 22% approximately, it is pointed out by the learned counsel for those petitioners that on this score, they were denied Form-C, but upon intervention of the Court, their Form-C have been restored. Learned counsel has submitted that there is no illegality in the same. 24. Be that as it may, we are not concerned with the individual cases at this stage, as the impugned action of the State is the blanket ban on issuance of Form-C by the State Government to all those dealers who are not selling the goods as defined under Section 2(d) of the CST Act. The said notification is not directed to a particular dealer, rather it is a general notification applicable to all. 25. Having heard the learned counsels for both sides and upon going through the record, we find that only question that has to be decided in these batch of cases is whether the reasoning given by the State Government in its N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e six items only, which are presently there in the Act. The reasonings given by the Hon ble Supreme Court in Paragraph-18 of the said Judgment, quoted above, have nothing to do either with non-liability of the press to make any payment of tax, or the freedom of press under Article 19(2) of the Constitution of India. The reasons given in paragraph-18 of the said Judgment by the Hon ble Apex Court fully apply to the facts of the present case also, which conclusively hold that the word goods appearing in the second half of Section 8(3) (b) of the CST Act may not necessarily mean the goods as defined under Section 2(d) of the CST Act. We also find that the registration of a dealer under Section 7(2) of the CST Act is not subject to any liability of the dealer to pay the tax or not, rather as laid down by the Hon ble Apex Court in Commissioner of Sales Tax, M.P. Vs. Madhya Bharat Papers Ltd. (supra), the dealers are entitled to continue to be registered under Section 7(2) of the Act, irrespective of the fact whether they are liable to pay any tax to State or not. 26. We do not find any merit in the submission of the learned counsel for the State that since the dealers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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