9911796707
TMI Blog2020 (3) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... cified goods against the Declaration Form 'C' at the concessional rate on the inter-State purchases of such goods made by them. HELD THAT:- The liability to pay tax under the provisions of CST fixed on the Seller is not a condition precedent or the only contingency for getting himself registered under the provisions of the CST Act. Even a person, who is only purchasing goods in the inter-State Trade or Commerce, who may not be liable to pay tax under the provisions of CST Act as a Seller can also secure registration under the provisions of the said Act and can continue with it. Even a dealer liable to tax under State Sales Tax law, which may include even new State GST Act, 2017, can obtain registration under CST Act. In the present case, the Assessee, a Cement Company, continues to be liable to pay tax under local TNVAT Act, 2006 if it sells or purchases any of these six goods also. The TNVAT Act also has not been completely repealed but now applies only to these six commodities after 1.7.2017 , as per Section 174 of the TNGST Act, 2017. On a conjoint reading of both sub-sections (1) and (2) of Section 7 of the CST Act, it is clear that the Respondents/Assessees and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such Purchasing Dealers is equally unacceptable. The scope of Section 48A is very limited and does not empower the said Commissioner to issue such general Circulars or any Guidelines to the lower Authorities in the State. Besides thus, being without jurisdiction and any statutory support, the impugned Circular dated 31.5.2018 is also passed in violation of principles of natural justice. There is no justification for creating any invidious classification by creating categories of Dealers, arbitrarily, in violation of Article 14 of the Constitution as has been done in the impugned Circular - The mere target to achieve more revenue, as has been mentioned in the impugned Circular itself, also cannot be a reason to sustain such Circulars and tax collection, without authority of law is a bane under the Constitutional Scheme and therefore, we are of the opinion that the learned Commissioner has exceeded his jurisdiction to issue such a Circular. The intention of the Legislature, by the series of Amendments, cannot be inferred in the manner canvassed by the learned counsel for the Revenue so as to defeat the right of the Purchasing Dealers to purchase at the concessional rate against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Writ Appeals aggrieved by the order and Judgment of the learned Single Judge dated 26.10.2018 , whereby the learned Single Judge allowed the Writ Petitions filed by the Assessees, M/s.Ramco Cements Limited and another and quashed the impugned communication dated 31st May 2018 issued by the Commissioner of Commercial Taxes, Chepauk, Chennai and consequential Notices issued to the Assessees seeking to deny the benefit of purchases of HSD Diesel, Natural Gas in the course of inter-State Trade or Commerce against the Declaration of 'C' forms of the CST Act, 1956 at the concessional rate of 2%. 2. The Revenue also contends that had such HSD Diesel been purchased within the State of Tamil Nadu locally, the rate of tax at 28% would have been levied and it would not have resulted in a big financial loss to the State of Tamil Nadu. 3. The bone contention of the Revenue in the present Writ Appeal is that with the enactment of the Constitutional 101st Amendment and consequential GST Laws enacted in all the States with effect from 1.7.2017 and the consequential amendments effected in the CST Act, 1956 also and amendment in the definition of 'Goods' restricting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chase these six commodities at concessional rate against the Declaration in Form 'C' in terms of Section 8(3)(b) of the CST Act, 1956, in the course of inter-State Trade or Commerce. (b) That even though the old Registration Certificates of those Dealers under CST Act were not so far cancelled and they included the Diesel, Petrol, etc. as commodities to be purchased by them in the manufacture of other goods like cement etc., but, the Registration Certificates should be deemed to be, pro tanto , amended by the force of enactment of new Laws and in the absence of their eligibility to get registered under the CST Act in terms of Section 7(1) of the Act, they could not be permitted under Section 8(3)(b) of the Act to avail the benefit of concessional rate of tax on such purchases of Petrol, Diesel, etc. for use in manufacture by them of other goods like Cement etc., which are administered and subjected to levy of tax under the new GST Law and since the GST Law does not make any such provision for concessional rate of tax against the Declaration of 'C' forms, such Dealers like the Respondent/Assessees cannot be allowed to make use of Declaration in Form 'C'. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase of six commodities at concessional rate against the Declaration in 'C' form, but, the contention of the Revenue that the Assessees were not entitled to get themselves registered under CST Act after 1.7.2017 was wholly erroneous inasmuch as such entitlement of the Assessee Companies was available to them under Section 7(2) of the CST Act 1956 and irrespective of them being not 'liable to pay tax' under the provisions of Section 7(1) of the CST Act, as they were not selling those six commodities in the course of inter-State Trade or Commerce but, nonetheless their right to hold the registration under CST Act independently exists and their right to purchase any of those six commodities at concessional rate also equally continues. (c) The learned counsel urged that if the operatability of the CST Act was restricted only to the specified six commodities inasmuch as the Sellers of those six commodities was concerned, the right of purchase in the course of inter State Trade or Commerce of any of these six commodities could not be defeated by the Revenue and there is no question of pro tanto amendment of Registration Certificates of the Assessees, as they a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 2(d) of CST Act has been amended suitably incorporating the above six goods only and therefore all the dealers who are not dealing in those goods are not permitted to make use of benefits provided under the CST Act, 1956. Accordingly, any dealer who deals in the above goods, i.e., who effect purchase and sales and those who effect purchases of those goods and manufactures those goods are alone eligible to be assessed under the CST Act 1956 and they are mandated to file returns under CST Act 1956 in respect of inter- State transactions and also under TNVAT Act 2006 in respect of intra-State transactions. From the above, it is thus made clear that any dealer who deals in those six goods are alone entitled to effect purchases from other State by availing the concessional rate of tax. In other words, those dealers who are not dealing in those goods are not eligible to purchase those six goods at the concessional rate of tax at 2% by issue of C form declarations as they are trading or manufacturing those goods that are administered under GST act 2017. It is learnt from reliable sources that certain dealers who are not dealing in those goods are effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing tax on their first sale inside the State of Tamil Nadu as per the rate specified in the Second Schedule to TNVAT Act 2006. This may have become more prevalent in the circumstances of rising prices of petroleum products. In order to plug the leakage of revenue due to the State in respect of Non-GST goods, it becomes essential to ensure that (i) all the registered dealers who have migrated to GST are not misusing the C form declaration for the purpose of effecting purchase of Petroleum products and using it for manufacture of other goods that are administered under GST Act 2017 and (ii) Authorized dealers of major Oil Companies make payment of first Sale Tax at the rate specified in the Second Schedule to TNVAT Act 2006. Hence, all the Joint Commissioners (Territorial) are requested to issue necessary instructions to all the assessing officers to take necessary action against: 1. Those dealers who use the declaration form C for purchase of those six goods at concessional rate and not paying tax on the sales by making proper assessment under Section 22(4) of TNVAT Act 2006 2. Those dealers who have migrated to GST and not entitled to purchase those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no such law in force in the appropriate State or any part thereof , any dealer having a place of business in that State or part , as the case may be, may, notwithstanding that he is not liable to pay tax under this Act , apply for registration under this Act to the authority referred to in subsection (1), and every such application shall contain such particulars as may be prescribed. Explanation - For the purposes of this subsection, a dealer shall be deemed to be liable to pay tax under the sales tax law of the appropriate State notwithstanding that under such law a sale or purchase made by him is exempt from tax or a refund or rebate of tax is admissible in respect thereof. (2-A) Where it appears necessary to the authority to whom an application is made under sub-section (1) or sub-section (2) so to do for the proper realisation of the tax payable under this Act or for the proper custody and use of the Forms referred to in clause (a) of the first proviso to subsection (2) of section 6 or subsection (1) of section 6-A or sub-section (4) of section 8, he may, by an order in writing and for reasons to be recorded therein, impose as a condition for the issue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is required to be furnished; and (b) in the case of a dealer who has made an application, or who has been registered in pursuance of an application, under sub-section (2), a sum equal to the tax leviable under this Act, in accordance with the estimate of such authority on the sales to such dealer in the course of inter- State trade or commerce in the year in which such security or, as the case may be additional security is required to be furnished, had such dealer been not registered under this Act. (3-C) Where the security furnished by a dealer under sub-section (2-A) or sub-section (3-A) is in the form of a surety bond and the surety becomes insolvent or dies, the dealer shall, within thirty days of the occurrence of any of the aforesaid events, inform the authority granting the certificate of registration and shall within ninety days of such occurrence furnish a fresh surety bond or furnish in the prescribed manner other security for the amount of the bond. (3-D) The authority granting the certificate of registration may by order and for good and sufficient cause forfeit the whole or any part of the security furnished by a dealer,- (a) for realising any a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfied that by reason of the registered dealer having changed the name, place or nature of his business or the class or classes of goods in which he carries on business or for any other reason the certificate of registration granted to him requires to be amended; or (b) be cancelled by the authority granting it where he is satisfied, after due notice to the dealer to whom it has been granted, that he has ceased to carry on business or has ceased to exist or has failed without sufficient cause , to comply with an order under subsection (3-A) or with the provisions of sub-section (3-C) or sub-section (3-E) or has failed to pay any tax or penalty payable under this Act, or in the case of a dealer registered under subsection (2) has ceased to be liable to pay tax under the sales tax law of the appropriate State or for any other sufficient reason. (5) A registered dealer may apply in the prescribed manner not later than six months before the end of a year to the authority which granted his certificate of registration for the cancellation of such registration, and the authority shall, unless the dealer is liable to pay tax under this Act, cancel the registration ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd signed by the registered dealer from whom the goods were purchased containing the prescribed particulars in a prescribed form obtained from the prescribed authority; and (b) if the subsequent sale is made to a registered dealer, a declaration referred to in subsection (4) of section 8: Provided further that it shall not be necessary to furnish the declaration referred to in clause (b) of the preceding proviso in respect of a subsequent sale of goods if,- (a) the sale or purchase of such goods is, under the sales tax law of the appropriate State exempt from tax generally or is subject to tax generally at a rate which is lower than three percent , or such reduced rate as may be notified by the Central Government, by notification in the Official Gazette, under sub-section (1) of section 8 (whether called a tax or fee or by any ether name); and (b) the dealer effecting such subsequent sale proves to the satisfaction of the authority referred to in the preceding proviso that such sale is of the nature referred to in this subsection. (3) Notwithstanding anything contained in this Act, no tax under this Act shall be payable by any dealer in respect of sale o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate of registration of the registered dealer purchasing the goods as being intended for re-sale by him or subject to any rules made by the Central Government in this behalf, for use by him in the manufacture or processing of goods for sale or in the telecommunications net-work or in mining or in the generation or distribution of electricity or any other form of power; (c) are containers or other materials specified in the certificate of registration of the registered dealer purchasing the goods, being containers or materials intended for being used for the packing of goods for sale; (d) are containers or other materials used for the packing of any goods or classes of goods specified in the certificate of registration referred to in clause (b) or for the packing of any containers or other materials specified in the certificate of registration referred to in clause (c). (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... develop, operate and maintain such special economic zone by the authority specified by the Central Government in this behalf. (7) The goods referred to in sub-section (6) shall be the goods of such class or classes of goods as specified in the certificate of registration of the registered dealer referred to in that subsection. (8) The provisions of sub-sections (6) and (7) shall not apply to any sale of goods made in the course of inter-State trade or commerce unless the dealer selling such goods furnishes to the prescribed authority referred to in sub-section (4) a declaration in the prescribed manner on the prescribed form obtained from the authority specified by the Central Government under subsection (6), duly filled in an signed by the registered dealer to whom such goods are sold. Explanation.--For the purposes of sub-section (6), the expression special economic zone has the meaning assigned to it in clause (iii) to Explanation 2 to the proviso to section 3 of the Central Excise Act, 1944 (1 of 1944). 13. It is true that the liability to pay tax arises under the provisions of the CST Act only upon seller who effects the taxable sale in the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly, reject the same. 15. The fact that the definition of 'goods' has been amended with effect from 1.7.2017 under the provisions of CST Act to restrict it to six commodities specified in Section 2(d) of the Act does not mean that the entire scope of the operation of CST Act has been amended. The rights of the purchasing Dealers of the goods including the rights to purchase at a concessional rate against Declaration in 'C' forms continues unabated under Section 8(3)(b) of the Act which has not been amended in 2017. The scope of the term 'goods' as defined in Section 2(d) of the Act does not obliterate such seemless flow of the inter-State Trade or the operatability of the CST Act for both Selling Dealers as well as Purchasing Dealers throughout the country. The Legislature never intended to do so while restricting the applicability of the CST Act only to six specified commodities and take them out of GST Law and taking all other commodities except the six specified items in the GST Tax Law Regime. Such a view on the part of the Revenue is self defeatative and cannot be countenanced by the court. The freedom of trade including the right to purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Sale or Purchase is at the bottom of the bedrock of this enactment, the Dealers can either by selling the goods in the course of inter State Trade or Commerce or by purchasing the goods in the course of inter- State Trade or Commerce can continue to do so of course for these six commodities as per the provisions of CST Act, 1956 as amended now. The mere restriction of the operation of the CST Act with respect to six commodities with effect from 1.7.2017 does not take away the right of the Purchasing Dealers to purchase such goods in the course of inter-State Trade or Commerce under the said Act and their registration cannot be said to be either pro tanto cancelled nor they can be cancelled as a matter of right by the Revenue Department. The right to deal with in those six goods still continues to vest in the Purchasing Dealers and therefore, this contention is misconceived. Can the Revenue deny the right to sell any of these six goods to these Assesses subject to their compliance with licensing requirements, if any? The answer would be no. Then how can they deny their right to purchase. 18. Sections 4, 5 and other provisions of the CST Act talk of both Sale or Purc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade void) so as to make the provision workable. Section 8(3) of the Act cannot be construed to be rendered unworkable because the text of the said provision does require liability of the Dealer to be discharged by the persons who purchase those six specified goods in the course of inter-State Trade or Commerce and to provide a seemless, harmonious and smooth operation of the Amended CST Act, 1956, the right to purchase the six commodities against 'C' forms has to be continued in the hands of the Purchasing Dealers. 22. It may also be noted here that TNVAT Act, 2006, the State Sales Tax law has also not been been completely abolished with the introduction of GST Regime with effect from 1.7.2017. It has been restricted for those six items in terms of amended Entry 54 and to which the GST Regime is not extended. Therefore, the sale or purchase of those six items, under the State Sales Tax Act, is even indeed permitted. Therefore, the Respondent/Assessee and other Dealers continued to have liability to pay Sales Tax or VAT under the local State VAT law and therefore, they are entitled to continue their State law registration and on the anvil of that they are equally entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority shall be binding , (i) on the applicant who has sought for the clarification or advance ruling; (ii) in respect of the goods in relation to which the clarification of advance ruling was sought ; and (iii) on all the officers working under the control of the Commissioner of Commercial Taxes. (4) The Authority shall have power to review, amend or revoke its clarification or advance ruling at any time for good and sufficient cause after giving an opportunity of being heard to the affected parties. (5) An order giving effect to such review or amendment or revocation shall not be subject to the period of limitation. 24. Section 48-A of the TNVAT Act only empowers the Commissioner to issue Clarification and Advance Ruling only with regard to any point concerning the rate of tax applicable on particular transaction or commodities. Sub-section (2) on the other hand restricts the Clarifications to be issued where any such issue is pending before any regular Authorities in Appeal or revisional forums or any appellate forum or Tribunal or Court and also prohibits the Assessees to raise such issues and seek Clarifications for avoidance of tax. Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d some of the Judgments, which we are citing below, have quashed those Circulars. Thus, the Judgment under Appeal of the learned Single Judge deserves to be confirmed on all counts. 26. The contention raised on behalf of the Revenue that registration of the Respondent/Assessee deserves to be cancelled or should be impliedly deemed to be cancelled pro tanto upon Amendment of the law is wrong and also has no reason. Firstly, as we have already observed, the TNVAT does not get completely repealed and therefore, the Assessees are liable to pay tax under the TNVAT Act if such purchases are made within the State and therefore, their liability to hold their Registration Certificate would also equally continue. Secondly, the State GST enacted by the State Legislature is also the Sales Tax law of the Appropriate State under which for other commodities manufactured by the Respondent/Assessees, the liability to pay tax on sale of such goods continues and therefore, these Dealers, who had already obtained their registration under CST Act, 1956 and have now obtained registration both under new IGST Act and SGST Act, their registration under the old laws like CST Act, 1956 and State VAT law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 101st Amendment of the Constitution of India. The freedom of trade in the course of inter-State Trade or Commerce is thus a part of basic features of the Constitution of India and such freedom of Trade enshrined in the Constitution was liable to be protected, even with the new GST regime. Such freedom to purchase even at the concessional rate of tax continued in the amended and protected CST Act, 1956 and only substance of the amendment in the CST Act was to restrict it to the six specified commodities. The debates for even taking these six commodities in the GST Tax Regime is still continuing. But, till that happens by enactment of proper Statutes or proper Amendment of GST Laws, the said six commodities have been kept under the umbrella of CST At, 1956 by suitably amended definition of goods under Section 2(i) of the CST Act, 1956. 29. Therefore, the intention of the Legislature, by the series of Amendments, cannot be inferred in the manner canvassed by the learned counsel for the Revenue so as to defeat the right of the Purchasing Dealers to purchase at the concessional rate against Declaration in 'C' form even the said six commodities. No law has prohibited any suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of an inter-State sale. A dealer liable to pay tax under the sales tax law of the appropriate State in respect of any goods would be covered by Section 7 (2) of the Act. 26. There is another aspect of the matter that the registration certificate given to the petitioner under the CST Act till date has not been cancelled. As per Section 7 (4) of the CST Act , the registration certificate granted has to be amended or cancelled. The said provisions have not been invoked. In these circumstances, the writ petition is allowed. It is held that the respondents are liable to issue `C' Forms in respect of the natural gas purchased by the petitioner from the Oil Companies in Gujarat and used in the generation or distribution of electricity at its power plants in Haryana . In the event of the petitioner having had to pay the oil companies any amount on account of the first respondent's wrongful refusal to issue `C' Forms the petitioner shall be entitled to refund and/or adjustment of the same from the concerned authorities who collected the excess tax through the oil companies or otherwise. The concerned authorities shall process such a claim within twelve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms the petitioners shall be entitled to refund and/or adjustment of the same from the concerned authorities who collected the excess tax . The concerned authorities shall process such a claim within twelve weeks of the same being made by the petitioners in writing and the petitioners furnishing the requisite documents/form. 34. Another learned Single Judge of Chhattisgarh High Court in Shree Raipur Cement Plant v. State of Chhattisgarh and others (2018(IV)MPJR (SC) 45) , explaining the amendment in the Law and following the decision of the Division Bench of Punjab and Haryana High Court also concluded that the Assessee would be entitled to make inter-State Purchase of High Speed Diesel from other States as before and his Registration Certificate under the CST Act still holds the field. The relevant portion of the Judgment including the Amendment in Law as discussed by the learned Single Judge are quoted below for ready reference. We respectfully agree with the said view of the learned Single Judge of Chhattisgarh High Court. The relevant portion of the Judgment is quoted below for ready reference:- 20. This definition of goods contained in Section 2(d) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 174 of the CGST Act, 2017 , which provides as under: - 174. Repeal and saving .--(1) Save as otherwise provided in this Act, on and from the date of commencement of this Act, the Central Excise Act , 1944 (1 of 1944) (except as respects goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution), the Medicinal and Toilet Preparation (Excise Duties) Act, 1955 (16 of 1955), the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), and the Central Excise Tariff Act , 1985 (5 of 1986) (hereafter referred to as the repealed Acts) are hereby repealed. xxx xxx xxx xxx xxx xxx xxx xxx xxx 24. The aforesaid provision of the CGST Act, 2017 contains a provision pertaining to repeal and saving. It is pertinent to notice that Section 174 of the CGST Act, 2017 does not include the CST Act, 1956 for the purpose of repealing and as such, the operation of the CST Act, 1956 is kept intact even after the enactment of the CGST Act, 2017 with effect from 1.7.2017 . 25. Likewise, the Chhattisgarh GST Act, 2017 also makes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations of the Council. 29. Similarly, Section 9(2) of the Chhattisgarh GST Act, 2017 provides as under: - 9. Levy and collection.--(1) xxx xxx xxx (2) The State tax on the supply of petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas and aviation turbine fuel, shall be levied with effect from such date as may be notified by the Government on the recommendations of the Council. 30. Sub-section (2) of Section 9 of the CGST Act, 2017 and the Chhattisgarh GST Act, 2017 clearly provide that GST on crude oil, high speed diesel, aviation turbine, motor spirit (petrol) shall be levied with effect from the date as may be notified by the Government on the recommendations of the GST Council. Therefore, the CGST Act, 2017 has kept the aforesaid six goods away from the ambit of the CGST Act, 2017 and no notification has been issued by the Central Government on the recommendation of the GST Council imposing GST on high speed diesel at a prescribed rate. 31. Thus, the net effect of the aforesaid discussion is that after the promulgation of the CGST Act, 2017 and the State Act , the items mentioned in the amended Entry 54 of the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the State, which in the present case would be AVAT Act of 2003 . Therefore, if according to the authorities in the State of Assam in the Taxation and Finance Department the petitioners are not liable to pay any tax under the AVAT Act of 2003, from 01.07.2017 onwards, the authorities may withdraw the registration under Section 7(2) of the CST Act of 1956, inasmuch as, the prerequisite of Section 7(2) of being liable to pay tax under the state sales tax law ceases to exist. ... ... ... 29. But the question that would arise would be if the petitioners continue to remain leviable for a tax under AVAT Act of 2003, which admittedly is a State law, they would also continue to remain entitled to have their registration under Section 7(2) of the CST Act of 1956 inasmuch as, if a dealer is leviable under the State law, he would also be entitled to be registered as a dealer under Section 7(2) of the Act. From the said point of view the cessation of their registration under Section 7(2) of the Act as provided in the circular dated 05.09.2017 would be unsustainable . 30. For a clarification we have to refer to the provisions of Clause-9 of the circular dated 05.09.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... breach of principles of natural justice as the same was issued by the learned Commissioner without giving an opportunity of hearing to the Assessees. The relevant reasons given by the learned Single Judge which we affirm are also quoted below for ready reference:- 39. On the basis of aforesaid analysis, it is held that the petitioner is a registered dealer under the provisions of the CST Act, 1956 read with the Rules of 1957 and his registration certificate under the CST Act, 1956 read with the Rules of 1957 continues to be valid for the purpose of inter-State sale and purchase of high speed diesel despite the petitioner having been migrated to the GST regime with effect from 1-7-2017 , as the definition of goods as defined in Section 2(d) of the CST Act, 1956 has been amended prior to coming into force of the CGST Act, 2017 from 1-7-2017 which includes high speed diesel. Further, under Section 9(2) of the CGST Act, 2017, the GST Council has not made any recommendation for bringing high speed diesel within the ambit of the CGST Act, 2017 and therefore the Central Government has not notified high speed diesel to be within the ambit and sweep of the CGST Act, 2017. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on , as the finding/conclusion made therein by the Commissioner of Commercial Taxes directly affects the rights of the petitioners conferred under Section 8(3)(b) of CST Act. Therefore, the petitioners are entitled to question the said communication dated 31.05.2018 . Even otherwise, it is to be seen that such communication was issued by the Commissioner of Commercial Taxes without hearing the petitioners. Therefore, the unilateral decision arrived by the Commissioner of Commercial Taxes undoubtedly violates the principles of natural justice . Likewise, the other two communications are also in violation of the principles of natural justice and therefore, the petitioners are entitled to challenge those communications as well. No doubt, under normal circumstances, this Court would remit the matter back to the respondents for reconsidering the issue after hearing the petitioners. I do not think that such remand is required in these cases under the facts and circumstances as discussed supra, more particularly, when the fact remains that Section 8(3)(b) has not been amended and based on which, the petitioners are entitled to avail the benefit under the said provision, while they pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... py of aforesaid judgment dated March 28, 2018 (copy enclosed) of Honourable High Court of Punjab and Haryana and order dated August 13, 2018 (copy enclosed) of Honourable Supreme Court for compliance in the respective States . End : As above. Yours faithfully, (Sd.) (MAHENDRA NATH), Under Secretary (Sales Tax Section -II). Tele : 23092419. .... .... .... 5. Taking into consideration, we are of the opinion that the circular dated August 17, 2017, which is partially quashed by the Punjab and Haryana High Court and has been approved by the Honourable Supreme Court. Other High Courts also have taken a similar view. In that view of the matter, it will not be appropriate to now enforce the circular dated August 17, 2017 and the Circular of November 1, 2018 will prevail along with the judgments which are referred herein above , the authorities are bound to implement all decisions referred to above and we are approving the ratio laid bound those decisions and we direct the State Government to follow and act in accordance with the ratio of those decisions. 6. With the aforesaid observation and direction, this writ petition stands disposed of. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more liable to pay tax under the Jharkhand Value Added Tax Act, and as such, the registration under the Jharkhand Value Added Tax Act had come to an automatic end with effect from July 1, 2017 . It was further stated in the said circular that some of the dealers who were not liable to pay tax under the Central Sales Tax Act, were still registered under section 7(1) of the Central Sales Tax Act, as they were liable to pay tax under the Jharkhand Value Added Tax Act. Since such dealers were not selling the aforesaid six goods, they were no more liable to pay tax under the Jharkhand Value Added Tax Act, and as such, their registrations under Section 7(2) of the Central Sales Tax Act as well, had become invalid with effect from July 1, 2017 . As such, those dealers would not be entitled to inter-State purchase of the aforesaid six items, on the concessional rates of tax under the provisions of the Central Sales Tax Act, on the basis of form C. It was the stand of the State Government that since the end-products of the petitioners after their manufacturing process, mining process, or power generation process, were not covered by the definition of goods given under section 2(d) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o its earlier stand as taken in the circular dated October 11, 2017 , denying the issuance of form C to the dealers, with respect to the six items, covered under section 2(d) of the Central Sales Tax Act. The petitioners filed writ petition submitting that the notification dated October 11, 2017 was absolutely illegal. The State Government had taken the stand through its letter dated August 21, 2019 , addressed to the learned Senior Standing Counsel- Jharkhand High Court that those dealers who had migrated to GST regime and who are not selling the aforesaid six goods covered under section 2(d) of the Central Sales Tax Act, were not covered under section 7(1) of the Central Sales Tax Act as well: Held, allowing the petitions, that the use of the expression goods referred to in the first half of section 8(3)(b), i.e., on first three occasions could be understood in the sense as was defined in Section 2(d) of the Central Sales Tax Act, whereas the expression goods in the second half of the clause, i.e., on the fourth occasion could not be understood in the sense as defined in section 2(d) of the Central Sales Tax Act as it referred to the manufactured goods. In the case of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
