Decided on November 12,1998

Roofers Nutro Pharma (Pvt.) Ltd. Appellant


Dubagunta Subrahmanyam, Chairman - (1.) THESE appeals are filed aggrieved against the orders passed. As the appeals involve common issues, they are heard together and taken up for disposal by way of a common order. The particulars of the appeals are as follows: - (Note: T.A. Nos. as noted above) The necessary facts leading to the filing of and disposal of the present batch of appeals, except appeal in T.A. No. 835/96 are stated hereunder. The facts in T.A. No. 835/96 are stated hereunder. The facts in T.A. No. 835/96 are slightly different and distinct from the facts involved in other appeals. The facts of this appeal will be narrated at an appropriate time.
(2.) THE Government of Andhra Pradesh introduced since 1961 incentive schemes to new industries being set up in Andhra Pradesh. There was one such scheme covered by G.O.Ms. No. 375, Industries & Commerce (I.A.) Department, dated 23.8.1985, which was in force from 1.4.1984 and as extended till 2.10.1989. Thereupon, a committee was constituted by the Government for reviewing the incentive policy of the State Government. The State Government basing on the recommendations of the Committee, introduced new liberalised incentive scheme w.e.f. 3.10.1989 in order to achieve all -round industrial development of the State. The new Scheme is comprised in G.O.Ms. No. 498, Industries & Commerce (I.A.) Department, dated 16.10.1989. It was meant to be in force from 3.10.1989 to 2.10.1992. Different types of incentives were provided for by the Government. In the present batch of appeals, we are concerned only with one of the incentives granted by the Government. It is "Deferment/Tax Holiday on sales tax". All the appellants are small scale industries. For the Small Scale Industries, the above G.O. granted sales tax holiday for five years subject to a ceiling of Rs. 35.00 lakhs on sales tax during the entire holiday period. In the present batch of appeals, we are not concerned with deferment on sales tax as that scheme applies to medium and large scale industries only. As already pointed out, all the units of all the appellants are SSI Units. The above G.O. further constituted State level and District level Committees for scrutinising the claim applications for the various incentives provided under the above scheme. The committees were empowered to scrutinise and sanction the claims of units. The G.O. further provides that the decisions of the State level Committee shall be final in scrutinising, deciding the eligible investment and sanctioning the incentives for eligible industries. Government issued a Manual of guidelines for implementation of the scheme provided in G.O.Ms. No. 498, dated 16.10.1989. Annexure XXII gives the proforma of the final eligibility certificate to be given by the Committee. The final eligibility certificate proforma contains the conditions for availing the incentives. Those conditions did not expressly prohibit the SSI Units from collecting sales tax from its customers. Similarly, the conditions did not also expressly authorise SSI Units to collect sales tax from its customers. The relevant condition reads as follows: "The sales tax incentives should be utilised for the development of industry only and should not be utilised for any other purpose". According to SSI Units, the above condition means and enables the SSI Units to collect the sales tax from its customers and utilise the same for the development of industry. Subsequently, in some of the temporary eligibility certificates given to some of the SSI Units, a condition was incorporated by the Committee constituted under G.O.Ms. No. 498 to the effect that SSI Unit is not entitled to collect sales tax from the consumers and further they would be liable to remit the sales tax during the relevant period of sales tax exemption. At this juncture itself it is necessary to point out that such a condition was not incorporated in any of the eligibility certificates granted in favour of any of the appellants covered in the present batch of appeals. Some of the persons, in whose certificates such a condition was incorporated in the year 1993 by the committee, filed writ petitions in the High Court of Andhra Pradesh contending that such a condition should not have been incorporated by the committee. The matter was decided by a Division Bench of A.P. High Court in Sri Parvati Parameswara Cables vs. Govt. of Andhra Pradesh and Others reported in : (1995) 99 STC 110. A.P. High Court was pleased to hold in that decision that the condition in the temporary eligibility certificate issued to the petitioners therein in terms of the Government orders in question, stating that the small scale unit was not entitled to collect sales tax from customers and was liable to remit any sales tax collected to the Government, was valid. In the course of the judgment, the High Court was pleased to hold that even in the absence of such a condition, the SSI Units were not entitled to collect sales tax from its customers and if they collected sales tax from its customers, they are bound to remit the tax collected by them from its customers to the Government. In some other similar batch of writs, the High Court was pleaded to reiterate its earlier findings. Those findings are reaffirmed in Pratibha Packagings vs. Commercial Tax Officer, Tarnaka Circle, Secunderabad reported in : 104 STC 482 and Sri Nagakrishna Filaments Pvt. limited vs. Govt. of Andhra Pradesh and Another reported in : 104 STC 484. Before the High Court delivered the above judgments, the assessing authorities concerned assessed the tax liability of the appellants and according to those assessment orders, tax holiday was granted to all the appellants except the appellant in T.A. No. 835/96. After pronouncement of the judgments in the above writ petitions by the High Court, the concerned Deputy Commissioners of Commercial Taxes took up suo motu revision proceedings to revise the assessment, orders of the assessing authorities concerned and cancelled the exemption of tax holiday to SSI Units under the 'Sales Tax Holiday Scheme'. Show cause notices were issued to the concerned assessees and thereafter orders were passed withdrawing the exemption of tax granted to the assessees in the nature of sales tax holiday scheme. Aggrieved by these orders of the Deputy Commissioners, the appellants preferred the present batch of appeals.
(3.) WE have stated supra that the facts in Appeal in T.A. No. 835/96 will be narrated later. The facts are stated hereunder. The appellant therein is also one of the SSI Units claiming the benefits of sales tax holiday scheme covered by G.O.Ms. No. 498, dated 16.10.1989. The assessing authority viz., Commercial Tax Officer, Agapura, Hyderabad assessed the tax liability of the appellant without considering whether the appellant will be entitled for the benefits of sales tax exemption as provided for in the above G.O. Thereupon, the appellant preferred an appeal before the Appellate Deputy Commissioner (CT), Secunderabad in Appeal No. 293/94 -95. In that appeal, he categorically pleaded that he is entitled for the benefit of the above scheme. The matter was remanded to the assessing authority to consider that aspect as well as another aspect pointed out in the appellate order. After remand, the assessing authority considered one aspect of remand order only and he did not consider the aspect of applicability of sales tax holiday scheme to the appellant. Therefore, the appellant preferred another appeal viz., Appeal No. 690/95 -96 before the Appellate Deputy Commissioner Secunderabad Division. The Appellate Deputy Commissioner disposed of the appeal by his order dated 8.3.1996. It was contended before the appellate authority that the assessing authority ought to have considered the tax holiday eligibility and granted necessary relief in terms of G.O.Ms. No. 498, dated 16.10.1989. The appellate authority observed that in the previous appeal, the appellants did not dispute their eligibility towards tax holiday now disputed in the present appeal before him. It was further observed that it was open for the appellant to dispute the same in the earlier occasion and he held that as the said dispute was not raised in the previous appeal, the matter was barred by time. At this juncture itself, it is necessary to point out that those observations of the Appellate Deputy Commissioner are not based on the material available in record. Though the dispute was raised expressly even during the pendency of the first appeal, the matter was not considered by the assessing authority after remand. Therefore, the appellant preferred the present appeal before this Tribunal.;

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