- (1.) Whether clause (3) of notification No. S. O.127/h. A.20/73/s.15/a/2000 dated October 9, 2000 (annexure P.1) issued by the Government of Haryana under section 15-A of the Haryana General Sales Tax Act, 1973 (hereinafter referred to as "the Act") is ultra vires to the power of the State Government or is violative of the doctrine of equality enshrined in article 14 of the Constitution is the question which arises for determination in this petition filed by the petitioner.
(2.) For the purpose of deciding the above noted question, we may briefly notice the facts. The petitioner is engaged in the manufacture of edible and non-edible oil in its factory at Hissar. It has got power connection of 990 KVA from Haryana Vidyut Parsaran Nigam Ltd. , and with the avowed object of avoiding stoppage of the manufacturing process, it has also installed six diesel generating sets (having total capacity of 2,830 KVS) through which electricity is generated by using high speed diesel oil. The petitioner's case is that high speed diesel used in the generation of electricity falls in the class of goods used for manufacture of oil and, therefore, in terms of section 15-A of the Act, it is entitled to reduction or refund of tax paid at the time of purchase of high speed diesel, but this item has been arbitrarily excluded from the class of goods included in clause (3) of annexure P.1 depriving it of the said benefit.
(3.) Shri Ashok Aggarwal, Senior Counsel, appearing for the petitioner, argued that the impugned notification should be declared ultra vires to the power of the State Government because section 15-A (1) does not empower it to exclude high speed diesel from the list of goods used for manufacture or processing of edible and non-edible oil by the dealer. Learned counsel submitted that high speed diesel used for generating the electricity should be treated as a raw material used for manufacturing edible and non-edible oil because the electricity is necessary for running the industry. In support of this argument, Shri Aggarwal strongly relied on the decisions of the Supreme Court in Indian Copper Corporation Ltd. V/s. Commissioner of Commercial Taxes, Bihar, 1965 AIR(SC) 891and J. K. Cotton Spinning & Weaving Mills Co. Ltd. V/s. Sales Tax Officer, Kanpur, 1965 AIR(SC) 1310He further argued that exclusion of high speed diesel from the class of goods used by the petitioner for manufacturing the oil should be declared as vitiated due to violation of article 14 of the Constitution because the distinction sought to be made between the high speed diesel and other lubricants is totally irrational and arbitrary and has no nexus with the object of calculating input tax for the purpose of section 15-A (1) of the Act. He relied on the decision of the Supreme Court in Arya Vaidya Pharmacy V/s. State of Tamil Nadu, 1989 2 SCC 285and submitted that clause (3) of the notification dated October 9, 2000 should be declared unconstitutional and struck down.;