S.B.Sinha, J. - (1.) LEAVE granted. The State of Rajasthan pursuant to its industrial policy formulated 'Sales Tax Incentive Scheme, 1987' (for short, '1987 Scheme') and 'Sales Tax New Incentive Scheme for Industries, 1989' (for short, '1989 Scheme). In terms of 1987 Scheme exemption from payment of sales tax of 100% was provided. 1989 Scheme which was notified in the Official Gazette on or about 06.07.1989 was given retrospective operation with effect from 05.03.1987. It was to remain in force upto 31.03.1998. Sub-clause (b) of Clause (1) of 1989 Scheme reads as under: "(b) An industrial Unit, other than the new industrial unit covered by 1985 Dispensation, being covered by the Sales Tax Incentive Scheme for Industries, 1987 (hereinafter referred to as the Old Incentive Scheme) shall have an alternative option to seek the benefits under the New Incentive Scheme." Clause 4 of the said Scheme which is relevant for our purpose, reads as under: "4. Exemption from tax on sales (a) An industrial unit, which is granted eligibility certificate under this notification shall be exempted from payment of tax on sales made within the State of the goods manufactured by it in accordance with the parameters incorporated in Annexure "C" to this notification. (b) for the purpose of arriving at the limit of tax exemption as provided in Annexure "C" the aggregate of the following shall be considered (i) Aggregate amount of tax which would have been leviable under the provisions of the RST Act 1954; (ii) Aggregate amount of tax on inter-State sales which would have been leviable under the provisions of the Central Sales Tax Act, 1956; and (iii) Aggregate amount of tax, as and when levied, on consignments. (d) When the limit of tax exemption prescribed in Annexure "C" is exhausted, all sales thereafter shall be subject to tax under the Act by the assessing authority concerned. (e) The Incentive available under this Scheme shall be subject to the condition that the beneficiary industrial unit after having availed of any benefit under this Scheme shall not make sales outside the State including branch transfers of the goods manufactured by it exceeding 60% in case of SSI, Medium and Large units and 80% in case of Pioneering and Prestigious units and 90% in case of Very Prestigious Units of its total production."
(2.) APPELLANT herein was eligible to obtain the benefits of the said Industrial Policy both under 1987 and 1989 Schemes. It, however, opted for 1989 Scheme, wherefor an application for grant of sanction of eligibility certificate was filed before the Manager, District Industries Centre, Rajsamand on 01.04.1995. Indisputably, the eligibility certificate was to be granted by the Industries Department of the State. The said certificate was granted on 07.12.1996, pursuant whereto exemption from tax liability was limited to 75%. Contending, however, that it had altered its position on a representation made by the State that 1987 Scheme would be applicable in its case, the appellant alleged that it had not realized sales-tax from its customers. In support of the said contention, it inter-alia relied upon an order of sanction of eligibility for grant of exemption/deferment issued by the Member Secretary of the Department to the Commercial Taxes Officer, Rajsamand, which is in the following terms: "The application has been prima-facie found eligible for the benefit of exemption from tax/deferment of tax on the basis of 'A Industrial Unit'/' a New Unit covered by 1985 dispensation/a sick Industrial Unit/ Expansion/ Diversification / under sales tax Incentive/ Deferment Scheme 1987/1989 under PST and / or C.S.T. Act' on the sale of Marble Slabs. Hence a formal eligibility certificate as per law be granted to the said applicant. The application filled by the unit was completed in all respect on 6.5.95." The eligible fixed capital Investment as determined by the committee which is subject to verification as per law is as follows:- JUDGEMENT_137_TLPRE0_2007Html1.htm A copy of eligibility certificate issued by you may also please be sent to this office. " Reliance has also been placed on the order of assessment passed by the Assessing Authority of the Commercial Taxes Department, wherein also exemption had been stated to have been granted in terms of 1987 Scheme, a sample copy whereof reads as under: "5. Sale under Incentive Scheme From 6.5.95 to 5.5.2003 under the Incentive Scheme, 1987 the assessee has already been allowed a heavy tax exemption of Rs. 3, 11, 250.00. Eligibility Certificate No. 1/354 has been issued to the Assessee. Under the Incentive Scheme, 1987 the assesse has made a sale of marbles slab of Rs. 5, 42, 063. On this sales tax @ 16 percent of Rs. 86, 730 is being imposed and being deducted from eligible amounts received under the Incentive Scheme."
(3.) THE mistake of the Assessing Authority, however, having been discovered, the appellant was issued with a notice to show cause as to why it should not pay the balance sales-tax on 25% of its turnover. A writ petition filed thereagainst by the appellant has been dismissed by reason of the impugned judgment. Mr. M.L. Verma, the learned Senior Counsel appearing on behalf of the appellant, would submit that in view of the representation made by the respondent, pursuant whereto or in furtherance whereof the appellant had not collected any tax from the customers, the impugned order cannot be sustained. In any event, it was urged that no penalty or interest should be levied on the said amount. The learned counsel appearing on behalf of the respondent, however, supported the impugned judgment.;