- (1.) B. M. LAL, J. The main grievance which the petitioner has brought before this Court for redress by means of this petition under article 226 of the Constitution is, that the impugned order dated October 4, 1994 (annexure 7 to the writ petition) passed by the Assistant Commissioner (Assessment) I, Trade Tax, Varanasi, whereby the assessee is directed not to use the coal imported on form 31 on job work; and that the impugned condition imposed vide order dated October 6, 1994 (annexure 9) to the effect that the assessee shall not use the coal imported on form 31 on job work, may be quashed.
(2.) IN short the case of petitioner is that M/s. Jhunjhunwala a partnership-firm is registered dealer under the provisions of the U. P. Sales Tax Act, 1948 (now U. P. Trade Tax Act) (hereinafter referred to as "the Act") and the Central Sales Tax Act, 1956 and carries on the business of manufacture and sale of refined oil, etc. It refines oil both in its own account as also on job work basis. It requires steam coal in huge quantity to be used as fuel for manufacturing the refined oil. IN order to bring coal by road from Central Coal Field, Ranchi to Varanasi (where petitioner's factory is situated) within the State of Uttar Pradesh, petitioner requires form 31 as prescribed under the Act and the U. P. Trade Tax Rules (for short, "the Rules" ). The petitioner vide application dated September 17, 1994 (annexure 4) requested the Assistant Commissioner (Assessment) I, Trade Tax, Varanasi, to issue 1,500 forms 31 who instead of issuing form 31 issued a notice dated September 23, 1994 under section 15-A (1) (r) of the Act calling upon the petitioner to show cause as to why penalty be not imposed as coal which is being imported by the petitioner on form 31 is being used on job work. The petitioner replied aforesaid show cause notice and ultimately impugned orders referred to above have been passed. Hence this writ petition. While filing counter-affidavit the respondents have emerged with the plea that the writ petition is barred by alternative remedy of appeal provided under section 9 of the Act and that form 31 which is a declaration of import can be issued only to the persons engaged in the activities of buying, selling, supplying or distributing the goods and since the petitioner is utilising 95 per cent of imported coal for job work which is not covered under the business activities hence he is not entitled to the form 31 for job work. Indeed the petitioner is a registered dealer under the Act and Rules but the said registration is not for the job work and the Coal India Ltd. , has also not authorised the petitioner to use the coal for job work. Under the provisions of the Act and Rules the petitioner cannot import coal for job work on form 31 and the impugned orders passed by the respondents are perfectly correct and legal and the impugned orders call for no interference by this Court on any ground whatsoever, consequently the writ petition is liable to be dismissed. Sri S. P. Gupta, learned Senior Counsel appearing for the petitioner strongly contended with all clarity at his command that the job work being an activity in the nature of processing, the petitioner is entitled to import coal for job work on form 31, therefore, the impugned orders are illegal and without jurisdiction. Sri Gupta further contended that the petitioner being a registered dealer can bring coal from Ranchi to Varanasi against form 31 irrespective of its user and thereby even for the activities other than the business activities, as provided under section 28-A of the Act.
(3.) SUPPORTING the impugned orders, learned counsel for the respondents vehemently contended that under the scheme of Act and Rules the goods intended to be brought or imported into the State in connection with business can be brought or imported only against form 31 and the goods intended to be brought or imported into State otherwise than in connection with business can be brought or imported against form 32 only and since the petitioner intends admittedly to bring or import the coal for job work which is not in connection with business rather is otherwise than in connection with business hence he is not entitled to be issued the form 31 for job work. Having heard learned counsel for the parties the short question that arises for determination by this Court is whether under the provisions of the Act and Rules, can form 31 be issued to an importer who intends to import or bring the coal into the State of U. P. for job work, i. e. , otherwise than in connection with business ? A germane question also emerges as to whether while issuing form 31 to a registered dealer who intends to import or bring coal in connection with business and also otherwise than in connection with business, i. e. , job work, can a condition be imposed that the coal imported against form 31 shall not be utilised for the job work which is otherwise than in connection with business ?;