J. Shyam Sundar Rao, Chairman -
(1.) THIS is an appeal filed against the orders of Appellate Deputy Commissioner (CT), Punjagutta Division, Hyderabad in Appeal No. P/172/2002 -03, dated 26 -3 -2003. The appellant is M/s. Shri Shakti LPG Ltd., Begumpet, Hyderabad. It is on the rolls of Commercial Tax Officer, Begumpet Circle, Hyderabad. The Commercial Tax Officer, Begumpet Circle passed final assessment orders for the assessment year 1999 -2000 under the provisions of APGST Act on 30 -5 -2002. The Commercial Tax Officer rejected the benefit of Sales Tax Deferment on the ground that the appellant is not eligible for the same as the appellant is not engaged in any manufacturing activity of producing a new product except re -filling liquefied petroleum gases (LPG) in small cylinders. Aggrieved by the order passed by the Commercial Tax Officer, the appellant preferred appeal before the Appellate Deputy Commissioner (CT), Punjagutta Division, Hyderabad. The Appellate Deputy Commissioner dismissed the appeal on the ground that the Government of Andhra Pradesh in G.O.Ms. No. 63, Revenue (CT -II) Department, dated 3 -2 -2000, while reducing the rate of tax on the sales of Liquefied Petroleum Gas to the consumers by non -subsidized sector from 16% to 8% ordered that the Liquefied Petroleum Gas Bottling Units are not eligible for any sales tax incentives under Industrial Incentives Schemes. The present appeal is preferred aggrieved by the order passed by the Appellate Authority.
(2.) IN the appeal grounds, it has been contended by the appellant as follows:
The finding of the Appellate Deputy Commissioner that the appellant is not entitled to the sales tax deferment is incorrect. The said G.O.Ms. No. 63, dated 3 -2 -2000 does not indicate that it is enforceable with retrospective effect. The Government of Andhra Pradesh allowed sales tax concessions by virtue of G.O.Ms. No. 117, dated 7 -3 -1993 read with G.O.Ms. No. 108, dated 25 -8 -1996. Accordingly, on application by the appellants, the State Level Committee has sanctioned the sales tax deferment to the appellant for an amount of Rs. 2,83,67,000/ - from 1 -1 -1995 to 31 -12 -2005 and also another additional amount of Rs. 9,40,83,500/ - by letter dated 5 -12 -1996 from 1 -2 -1996 to 31 -1 -2003. On receipt of the said sanction of sales tax deferment, the final eligibility certificates have been considered by the Commissioner of Commercial Taxes and issued a letter to the assessing authority to allow the sales tax incentives to the appellants. In view of the same, the appellants are entitled to claim sales tax concessions. The assessing authority as well as the appellate authority rejected the sales tax incentives to the appellants by virtue of G.O.Ms. No. 63, dated 3 -2 -2000. The said GO is not applicable with retrospective effect. The Assessing Authority referred another letter stating that the Commissioner of Industries in his letter dated 17 -5 -2000 has informed that the sales tax incentives sanctioned to the Liquefied Petroleum Gas bottling units is withdrawn with effect from 31 -3 -2000. Such rejection made by the assessing authority and confirmed by the appellate authority is also not tenable because it is a blanket letter issued without referring the name of the unit and without mentioning about the rescinding of the earlier GOs and cancelling the final eligibility certificates issued by the State Level Committee to the appellants. The Hon'ble High Court in the case of M/s. Techno Pack Pvt. Ltd. vs. The Commissioner of Industries & Others is Writ Petition No. 11162/2000, dated 19 -7 -2000 (reported in, 31 APSTJ 95) has stated that the benefit of sales tax deferment granted in terms of G.O.Ms. No. 108, Industries & Commerce Department, dated 20 -5 -1996 cannot be cancelled without giving opportunity of hearing to the effected parties.
At the time of hearing of the appeal, the learned counsel for the appellant contends that in view of the final eligibility granted in favour of the appellant, the appellant did not collect tax from its customers. Hence, under the principle of promissory estoppel, the Department cannot collect tax from them. Only on the assurance given under the Industrial Incentives Scheme, they started their bottling unit and only after verification of their unit, the State Level Committee, comprising of Commissioner of Industries and Others, granted final eligibility certificate for their unit at Kakinada and Bibinagar specifically incorporating a Clause in the said certificates that the appellant shall not collect tax from its consumers during the period of eligibility. Accordingly, they did not collect any tax from their customers. It is further contended when it did not collect any tax from their customers they cannot be forced to pay tax. It is contended that though their claim was defeated at the level of apex court, as their final eligibility certificates were in force till 24 -11 -2003, the appellant cannot be made to pay tax during the period of the subsistence of final eligibility certificates.
(3.) ON the other hand, the learned State Representative for Revenue contends that the appellant filed Writs before the Hon'ble High Court of Andhra Pradesh and their Writs were dismissed and the Government issued G.O.Ms. No. 63 withdrawing the sales tax concessions and incentives granted in favour of Liquefied Petroleum Gas Units of non -subsidized sector by reducing the tax payable from 16% to 8%. The Commissioner of Commercial Taxes also issued a circular that tax is leviable and collectable from these units with effect from 31st March, 2000. It is also contended that it is not known as to whether the appellant collected tax or not from their customers, but however the appellant is liable to pay tax irrespective of the fact as to whether they collected tax or not in view of the judgment rendered by High Court of Andhra Pradesh in M/s. SHV Energy South East Limited & Another vs. State Investment Promotion Board & Others reported in : 36 APSTJ 37. The State Representative filed written arguments contending that the appellant was sanctioned both sales tax deferment to a tune of Rs. 2,83,61,500/ - for Kakinada Unit and sales tax holiday in a sum of Rs. 9,40,80,500/ - and Rs. 5,41,39,600/ - in respect of Bibinagar and Kakinada Units as per the Certificates issued by the State Level Committee constituted in G.O.Ms. No. 108, dated 20 -5 -1996 treating the line of activity of the appellant as manufacturing activity. However, subsequently the Government of Andhra Pradesh upon re -examination of G.O.Ms. No. 108, especially Clause 6(3) of the above GO, came to the conclusion that no manufacturing process is involved in the above activity of the appellant. Accordingly, issued G.O.Ms. No. 63, dated 3 -2 -2000 to the effect that the industrial units merely involved in filling the gas in the cylinders, are not entitled for any sales tax incentives, be it sales tax holiday or sales tax deferment. When the appellant approached the High Court by way of Writ Petitions bearing Nos. 30015/98, 2215 and 2242/2000, all these Writ Petitions were dismissed by the High Court on 13 -3 -2003. Later, the Industries Department realized its mistake and cancelled the certificate issued in favour of the appellant. The fact that whether the appellant collected sales tax from the customers or not is immaterial. The decisions relied by the appellant are irrelevant. The Judgment relied on by the appellant in M/s. Panchalingala Carbonic Gas Pvt. Limited vs. State of Andhra Pradesh ( : 40 APSTJ 41) will not come to the rescue of the appellant in view of the judgment in their own case.;