(1.) THIS is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 in the nature of an application under articles 226 and 227 of the Constitution of India.
(2.) THE application arises out of the assessment order dated December 29, 1990 for the period of four quarters ending June 30, 1986 under Section 11 of the Bengal Finance (Sales Tax) Act, 1941. In course of that assessment, the Commercial Tax Officer who was the assessing authority, being respondent No. 1, rejected the claim of the applicant for exemption of sales of poly bags from tax on the basis of eligibility certificate obtained for the relevant period under Rule 3(66) of the Bengal Sales Tax Rules, 1941, The poly bags were manufactured in the new industrial unit of the applicant. There is no dispute about this. The eligibility certificate was issued by mentioning only HMHDPE film and without mentioning poly bags. The first eligibility certificate was granted for the period from October 22, 1982 to June 30, 1983. It was renewed from July 1, 1983 to June 30, 1984, and in similar fashion it was renewed every year upto October 21, 1987. An appeal was preferred by the applicant from the order of assessment. While disposing of the appeal by order dated August 25, 1992, respondent No. 2, Assistant Commissioner of Commercial Taxes, Calcutta South Circle, held that poly films and poly bags are different commercial commodities, and hence, prayer for exemption from tax on sales of poly bags was rightly rejected by the assessing authority, because poly bags were not mentioned in the eligibility certificate. Thereafter the applicant filed a revision before the West Bengal Commercial Taxes Appellate and Revisional Board, and at the same time made an application before the authority issuing the eligibility certificate for amendment/rectification of the eligibility certificate by adding poly bags in the certificate. By an order dated December 30, 1992/ January 18, 1993 (both the dates have been given respectively at the beginning and end of the order) the Assistant Commissioner of Commercial Taxes who was the authority for issuing eligibility certificate, rejected the prayer for amendment/rectification of the eligibility certificate on the ground that there was no such provision in the law. However, he mentioned in course of the order that there was validity of some points argued by the learned advocate for the applicant, and he noted that the applicant had sold poly bags in the very first sale bill which was inspected by different authorities. He also observed that it appeared to be an unfortunate omission in the certificate. At the same time he mentioned that the applicant had not included bags in the application for eligibility certificate on the mistaken notion that bags and films were identical. However, he was also of the opinion that bags were commercial commodities different from polythene films and liners. He also thought that the question of coverage of bags in the certificate was redundant, although conventionally such coverage was given in the form of the certificate. Thereafter, on December 10, 1997, the West Bengal Commercial Taxes Appellate and Revisional Board disposed of the revision application of the applicant and rejected the revision application on the ground that bags were commercial commodities different from polythene films.
(3.) HENCE this application. Mr. N.K. Kothari, learned advocate for the applicant, fairly concedes that polythene films and polythene bags are undoubtedly different commercial commodities, but he points out that the very first sale bill dated October 22, 1982 which was examined by different taxing authorities at different stages was for sale of poly bags. He has submitted that the impugned assessment of tax regarding sales of poly bags was made in the fourth year of eligibility period under Rule 3(66). On the basis of the same eligibility certificate where poly bags were not mentioned, the assessing authorities had made assessment for the first three years of eligibility period without questioning the claim of the applicant for exemption of sales of poly bags from tax. He has drawn our attention to the scheme presented to the district industrial authorities for their approval before setting up the industrial unit. In that scheme, in paragraph 1.2, it was mentioned that the application of the goods to be manufactured was for packing purposes in various forms, such as reels, bags, liners, etc. While in paragraph 1.3 of the scheme (process of manufacture), no mention was made of bags, under paragraph 1.7(A) in course of mentioning the plant and machinery, the applicant mentioned bag making machine as one of the plant and machinery. Mr. Kothari has pointed out that every page of the scheme was signed by the district industrial authorities. In other words, according to him, it was always intended from the very inception that poly bags can be manufactured in the new unit of the applicant together with other commodities, and actually the very first sale of manufactured product was of poly bags. But there was an omission or mistake on the part of every one to specifically mention poly bags in the various documents including the eligibility certificate.
Mr. Kothari has further submitted that Rule 3(66) as it then stood, did not conceive of issuance of eligibility certificate for all types of goods manufactured in the unit. In other words, according to him, once an eligibility certificate was granted under Rule 3(66), the dealer was entitled to exemption from tax on sales of all types of goods manufactured in the unit.;