ASHWIN INDUSTRIES Vs. DEPUTY COMMISSIONER OF SALES TAX BARODA
LAWS(GJH)-1979-9-18
HIGH COURT OF GUJARAT
Decided on September 20,1979

ASHWIN INDUSTRIES Appellant
VERSUS
DEPUTY COMMISSIONER OF SALES TAX BARODA Respondents

JUDGEMENT

MAJMUDAR, J. - (1.) A short question which arises for our consideration in this special civil application is as to whether the Deputy Commissioner of Sales Tax can seek to invoke suo motu revisional powers under section 67 (1) (a) of the Gujarat Sales Tax Act, 1969, hereinafter referred to as "the act", when the Assistant Commissioner of Sales Tax on a prior occasion had exercised suo motu revisional powers regarding the same subject-matter under section 67 (1) (a) of the said Act.
(2.) A few facts leading to this controversy may now be stated : The petitioner was a partnership firm since dissolved which was carrying on its business in the name and style of M/s. Ashwin Vanaspati Pvt. Ltd. at Samlaya, Taluka Savli, District Baroda. The relevant period for the purposes of this petition is S. Y. 2028. The petitioner-firm was carrying on the business of manufacturing vanaspati, soap, refined oil, etc. , at its factory at Samlaya. For the purpose of producing vanaspati, the petitioner-firm used to purchase seeds, such as groundnuts, etc. , and oil. According to the petitioner its purchases fell in the following four categories : (1) The petitioner-firm purchase oil from outside the State of Gujarat on giving form No. C and paying 3 per cent tax thereon under the Central Sales Tax Act, 1956. (2) The petitioner-firm purchased seeds after payment of tax from the market in the State of Gujarat and crushed the same, extracted oil and manufactured vanaspati therefrom. (3) The petitioner-firm purchased oil from the Gujarat market on executing form No. 19 under the Gujarat Sales Tax Rules. (4) The petitioner-firm purchased oil in the market after paying sales tax thereon to the vendors. In the course of assessment proceedings for S. Y. 2028, under the provisions of the Act, the petitioner-firm claimed that it was entitled to set-off under rule 42 of the Rules framed under the said Act. The said claim was in respect of the sales tax paid by the petitioner on its purchases of oil from the local market out of which vanaspati was manufactured and sold within the State or in the course of inter-State trade and commerce after recovering tax from the purchasers. The contention of the petitioner-firm in that regard was that the detailed record of the petitioner-firm showed that the oil purchased on C form under the Central Sales Tax Act and the seeds purchased from the local market after paying sales tax were only used for making vanaspati which was sent on consignment basis outside the State to the agents of the petitioner-firm and sold there, and therefore, there was no liability of the petitioner-firm to have deducted from 3 per cent set-off of such outside State sales under the second proviso to paragraph (B) of rule 42 of the Gujarat Sales Tax Rules, 1970, hereinafter referred to as "the Rules". It appears that the Sales Tax Officer, Baroda, accepted the aforesaid submissions of the petitioner-firm and allowed full set-off in respect of sales tax paid by the petitioner-firm on the purchase of oil in the local market. The said set-off came to Rs. 3,63,690. 88. The Assistant Commissioner of Sales Tax, Baroda, however, in exercise of suo motu revisional powers under section 67 of the Act, took the order of the Sales Tax Officer in revision and by his order dated 14th March, 1977, held that the petitioner-firm was manufacturing vanaspati in a single plant, and the petitioner-firm's contention that the set-off was not liable to be reduced under the second proviso to rule 42 was not acceptable. The Assistant Commissioner of Sales Tax, therefore, revised the aforesaid order of the Sales Tax Officer by deducting from the aforesaid set-off an amount equal to 3 per cent of the total sale price in respect of the goods sent by the petitioner on consignment basis to its agents outside the State and sold there. The Assistant Commissioner by his order in revision disallowed the set-off of Rs. 1,88,513. 89 out of the total set-off allowed by the Sales Tax Officer to the turn of Rs. 3,63,690. 88. The Assistant Commissioner of Sales Tax in the aforesaid revisional order also held that the petitioner-firm was not liable purchase tax under section 16 of the Act and as the petitioner-firm was not liable to pay purchase tax, no question of levying any penalty from the petitioner under section 45 (1) of the Act arose.
(3.) THEREAFTER the petitioner being aggrieved by the aforesaid revisional order of the Assistant Commissioner of Sales Tax preferred a revision application to the Gujarat Sales Tax Tribunal, being Revision Application No. 47 of 1977. The petitioner-firm raised the same contentions which it had raised before the Assistant Commissioner of Sales Tax, namely, that in view of the two distinct separate channels maintained by the petitioner-firm with all the detailed registers the petitioner-firm had clearly established that the vanaspati sent on consignment basis outside the State of Gujarat was only from vanaspati manufactured out of oil purchased on executing C form and groundnuts purchased in the local market on payment of sales tax and oil extracted therefrom. The Sales Tax Tribunal relying on its earlier decision in the case of Prabhat Solvent Extraction Industries Pvt. Ltd. dismissed the petitioner's application by its order dated 27th December, 1977. The Sales Tax Tribunal took the view that as the plant was a single one in which vanaspati was manufactured from the aforesaid two channels, the contention of the petitioner-firm could not be accepted, and that under the second proviso to rule 42, the authorities were entitled to deduct 3 per cent on the total sale price of vanaspati consigned outside State and sold there and deduct the same from the set-off available to the petitioner-firm in respect of purchases of oil in the local market after payment of sales tax to the vendors. The petitioner-firm thereafter preferred a reference application for referring the question involved in the matter for decision of the High Court. In the meantime, the petitioner firm also filed a special civil application, being Special Civil Application No. 470 of 1977, challenging the vires of the second proviso to rule 42. During the pendency of the said special civil application before this Court, a decision was rendered in another matter by this Court, being Sales Tax Reference No. 6 of 1976 (Prabhat Solvent Extraction Industries Pvt. Ltd. v. State of Gujarat [1982] 49 STC 322) which was decided by this Court on 15th December, 1978. It was held that the deduction to be effected from the set-off or refund to be granted in respect of tax paid on purchases of goods used in the manufacture of goods sold on consignment basis. As a result of the aforesaid decision of this Court, the petitioner applied for certain amendments in its aforesaid Special Civil Application No. 470 of 1977 contending in the alternative that the order of the Tribunal declining to grant the set-off on an erroneous construction of the second proviso to rule 42 was required to be quashed and the Tribunal was required to be directed to decide the matter afresh in the light of the correct interpretation of the proviso to rule 42 as laid down by this Court in the aforesaid Reference No. 6 of 1976 (Prabhat Solvent Extraction Industries Pct. Ltd. v. State of Gujarat [1982] 49 STC 322 ). The said amendment was granted by this Court and thereafter the petitioner and the revenue agreed to an order being passed in Special C. A. No. 470 of 1977 and by consent the Tribunal's order in Revision Application No. 47 of 1977 was quashed and the matter was remanded to the Tribunal for a fresh decision in accordance with the decision of this Court in Prabhat Solvent Extraction Industries Pvt. Ltd. 's case [1982] 49 STC 322. In the said consent order passed in Special C. A. No. 470 of 1977 it was agreed that the petitioner will be entitled to raise before the Tribunal on remand the said two channel theory but that the Tribunal will decide the said question on the same lines on which it had decided earlier and that the petitioner would be entitled to apply for a reference against the said decision of the Tribunal on the two channel theory.;


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