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TMI Blog2023 (9) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... r dt. 28.09.2011 passed in Appeal No. OTD-1/2009-10 of the Deputy Excise and Taxation Commissioner-cum-Appellate Authority, North Zone, Palampur, District Kangra, H.P. 2) The petitioner is a registered dealer for manufacture of 'Kattha' and 'Cutch' and allied products under the Himachal Pradesh (Taxation on Certain Goods carried by Road) Act, 1999 (for short 'the Act') and he was paying tax at the Gagrate Barrier on 'Kattha'. 3) Originally under the Act, Road Tax on 'Kattha' was leviable under the provisions laid down therein in item No. 15(b) of the 1st Schedule. 4) Thereafter, the Government of Himachal Pradesh issued a notification dt. 09.12.1999 amending the said item, and under sub-item (vi) of item No. 15, tax on 'Kattha' under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perior in rank, had already rejected the claim for refund made by the petitioner, he cannot grant any relief and so dismissed the appeal. 10) Challenging the same, this Writ Petition has been filed. 11) Learned Senior Counsel appearing for the petitioner contended that denial of refund by the respondents of the amount of Rs. 40,48,125/- collected as road tax on 'Cutch' during the period 13.11.2000 to 28.12.2001 is illegal because 'Cutch' was not a taxable item prior to 17.01.2002 and could not have been subjected to any tax by the respondents. He also pointed out that the Assistant Excise and Taxation Commissioner, in his letter dt. 30th January, 2003 had referred to a letter dt. 20.01.2003 of the Excise and Taxation Commissioner, Himacha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it is to inform you that the matter has been got examined from the Forest Department and they have intimated that the 'Kutch' is a byproduct of the Katha manufacturing process, though not a waste product as it has uses. It is generally used as a dyeing or tanning material but also for mouth freshness & medicines. As per information available the price of Katha can range between Rs. 250-400/- per kg, and that of Kutch from Rs. 525/- per K.G. in view of this huge price differential, therefore, it would obviously not be in order to impose the same rate of tax on both. In view of the above, it is apparent that the term "Kutch" is quite distinct from "Katha" and taxing both at the same rate is quite unfair especially in view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt from the petitioner on the said product. 12) Learned Advocate General on the other hand sought to contend that up to 17.01.2002, when the amendment came into effect, 'Cutch' was taxable at the same rate at which 'Kattha' was taxable because 'Kattha' in wider sense include 'Cutch' also. He stated that 'Cutch' was also taxable before 17.01.2002 and that was stated in the letter dt. 30.01.2003 by Assistant Excise and Taxation Commissioner stating that 'Kattha' in its wider term include 'Cutch' also. He also placed reliance on the judgment of Hon'ble Supreme Court in State of Madhya Pradesh Versus S.P. Sales Agencies and Others (2004) 4 SCC 448 13). The said case arose under the Forest Act, 1927 and observations were made in the said judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In our considered opinion, the order passed by the Deputy Excise and Taxation Commissioner-cum-Appellate Authority, Palampur, on 28.09.2011 cannot be sustained because he had simply refused to grant the refund on the view that the Excise and Taxation Commissioner, H.P. had rejected the refund on 20.01.2003. But there is no such letter made available to petitioner under the Right to Information Act, 2005. He ought to have followed Annexure P-2 letter dt. 20.07.2001 of the Commissioner-cum-Secretary (Excise and Taxation) to the Government of Himachal Pradesh to the Excise and Taxation Commissioner, Himachal Pradesh, Shimla-09, clearly pointing that 'Cutch' and 'Kattha' are different and same rate of tax cannot be levied on both as the same i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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