(1.)THE sole question posed in this writ application under article 226 of the Constitution may be framed thus :
" Is the petitioner entitled to remission and/or refund under section 37-A of the Assam Sales Tax Act, 1947 ?"
(2.)IT is the common case of the parties (a) that at all relevant period the petitioner was a "dealer" under the Assam Sales Tax Act, 1947, for short "the Act"; (b) that "natural gas" was taxable under "the Act" up to 31st March, 1969, but on and from 1st April, 1969, the item was made taxable under the Assam (Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubricants) Taxation Act, 1955; (c) that at all relevant time the petitioner was not a dealer within the meaning of the expression in the Assam (Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubricants) Taxation Act, 1955; (d) that the petitioner purchased natural gas and paid sales tax up to 22nd August, 1968.
Necessary facts for disposal of the points : - Government of Assam, Finance Department, informed the petitioner in reply to their letter dated 9th May, 1968, that under section 37-A (2) of "the Act" as well as under section 2-A (2) of the Assam Finance (Sales tax) Act, 1956 (as amended), the manufactures would be entitled to drawback, set-off or refund of the whole or any part of the amount of tax paid at the time of purchase of raw materials used by them for manufacture of goods for sale. It was also stated that if natural gas was used by the petitioner as raw material for the manufacture of "chemical fertiliser" for sale, it would be eligible for the above concession. However, on scrutiny of the provision of section 37-A of "the Act" as well as section 24-A (2) of the Assam (Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubricants) Taxation Act, 1955, the Government informed the petitioner, by its letter dated 7th March 1969, that a manufacturer is entitled to refund, drawback or set-off subject to certain conditions and that necessary rules in this connection were in the process of being framed. It is claimed by the petitioner that it had paid sales tax on natural gas to the tune of Rs. 14,867. 34 till August, 1968. Similarly, the petitioner paid Rs. 77,423. 61 till March, 1969. The petitioner asked for refund of sales tax paid under section 37-A (2) of "the Act" which was turned down by the Government. The petitioner claims that he was entitled to refund under section 37-A (2) of "the Act". We are, therefore, to consider whether the State Government has acted illegally or in breach of section 37-A (2) of "the Act" in refusing to refund the amount of Rs. 62,919. 05 as prayed for by the petitioner.
(3.)THE sole contention of Mr. Banerjee, learned counsel for the petitioner, is that the State Government is bound to refund either the whole of the amount of Rs. 62,919. 05 or a part of the tax paid in respect of the purchase of natural gas under section 37-A of "the Act". We are extracting the provision of section 37-A of "the Act" :
" 37-A. (1) The State Government, for reasons to be recorded in writing may remit the whole or part of the amount of the ax or penalty payable in respect of any period by any registered dealer who has suffered heavy loss due to any natural calamity. (2) The State Government may, by rules, provide that in such circumstances and subject to such conditions as may be prescribed, a drawback, set-off, or a refund of the whole or any part of the tax paid in respect of any purchase of raw materials under this Act for use by any dealer in the manufacture of goods for sale, be granted to such dealer. " Section 37-A was inserted by Assam Act 18 of 1959 with effect from 1st April, 1959, which was word for word same with the present sub-section (1) of section 37-A. The head note of the section read as "remission" which still continues to be so. We have doubt as to whether the entire section falls under the term "remission" or not. By Act 14 of 1967 sub-section (2) was introduced with effect from 18th October, 1967. In short, during the period commencing from 1st April, 1959, to 17th October, 1967, the provisions of section 37-A (1) were in the field and sub-section (2) came into force on and from 18th October, 1967.