- (1.) VIDE this judgment three writ petitions (Nos. 3072, 3431 and 3432 of 1993) are being disposed of as the petitioner in these three writ petitions is the same and the facts identical. These three writ petitions pertain to assessment years 1988-89, 1989-90 and 1990-91. The judgment is prepared in Civil Writ Petition No. 3072 of 1993, relating to the assessment year 1988-89.
(2.) THE petitioner is running business of sale of cement in the State of Haryana at its offices at Faridabad and Rohtak. The petitioner-company is manufacturing two types of cement popularly known as `o. P. C. ' and `p. P. C. ' The manufacturing unit is at Damoh, in the State of Madhya Pradesh. The petitioner being a dealer registered under the Haryana General Sales Tax Act (hereinafter referred to the 'the Act') filed quarterly returns. Assessment order was passed on March 9, 1993, by the Assessing Authority-cum-Excise and Taxation Officer, Faridabad (West), Annexure P-l. Thereafter a show-cause notice was issued to the petitioner on February 2,1993, Annexure P-2. The petitioner replied the same vide Annexure P-3. The petitioner, before the assessment order was passed, submitted written arguments and the copy of which was produced with the writ petition Annexure P-4. In order to explain the position copy of delivery challan Annexure P-5 and bill Annexure P-6 were produced. The writ petition was filed challenging the impugned order dated 9. 3. 1993 Annexure-P7. When the matter came up before the Motion Bench it was represented that the omission of Clause - VII of proviso to Section 15 (i) of the Act charging of sales tax on jute bags at the rate of 12% was not permissible under the law. On notice of motion having been issued, on behalf of the respondents reply has been filed by the Excise and Taxation Officer concerned, inter-alia asserting that while selling the cement contained in the gunny bags consolidated price was charged on which sales tax at the rate of 12% was rightly assessed. The petitioner could not bifurcate transaction in two parts of sale of cement and the other of sale of jute bags. Alternative remedies of appeals and revision were available under the provisions of the Act and the writ petition was not maintainable. On merits it is further pleaded that omission of Clause (vii) of proviso to Section 15 will not make any difference in law. The item chargeable to sales tax would be cement, i. e. cement bags. The petitioner filed replication to the written statement reiterating the stand taken up in the writ petition and further stated that the sale of jute bags and cement were governed by different items. In item No. 8 of notification dated 30. 12. 1987 on sale of cement the rate of sales tax is to be 12 paisa in a rupee, whereas on the sale of jute bags it is to be 4 paisa in a rupee in item No. 'o'.
(3.) WE have heard the learned counsel for the parties.;