H.S.BRAR, J. - (1.) PETITIONER - company was granted exemption certificate under Section 13-B of the Haryana General Sales Tax Act, 1973 (hereinafter referred to as the HGST Act), read with Rules 28-A of the Haryana General Sales Tax Rules 1975 (hereinafter referred to as the HSST Rules) from payment of sales tax under the Act and the rules w. e. f. 25. 10. 1989 to 24. 10. 1996 for a period of seven years, petitioner's business as per averments set out in the writ petition had closed down in September 1992 as the petitioner - company had suffered loss totalling Rs. 1,89,69,511/ -. Assessing Authority - respondent No. 4 in view of the closure of the business of the petitioner company in the year 1992 cancelled the exemption certificate and imposed tax amounting to Rs. 7,94,848/- and interest amounting to Rs. 236,987/- i. e. total of Rs. 1031,835/ -. Assessing Authority cancelled the exemption certificate and levied the tax in view of Rule 28-A (9) (i) and 28-A (10) (V) of the Rules, which reads as under : "28-A (9); The exemption/entitlement certificate granted to an eligible industrial unit shall be liable to be cancelled by the Deputy Excise and Taxation Commissioner concerned in the following circumstances, after affording an opportunity of being heard to the unit: (i) discontinuance of its business by the unit at any time for a period exceeding six months or closing down of its business during the period of exemption/deferment. 28-A (10) (V); On cancellation of eligibility certificate or exemption/entitlement certificate before it is due for expiry, the entire amount of tax exempted/deferred shall become payable immediately is lump-sum, and the provisions relating to recovery of tax, interest and imposition of penalty shall be applicable in such cases. "
(2.) A perusal of these rules would show that the exemption/entitlement certificate granted to eligible industrial unit is liable to be cancelled after affording an opportunity of being heard to the unit in case of the discontinuance of its business at any time for a period exceeding six months or closing down of its business during the period of exemption/deferment. Against the order of the appellate authority petitioner filed an appeal alongwith an application to dispose with the condition of payment of tax before the appeal is heard on merits. Appellate Authority - respondent No. 3 directed the petitioner company to pay the amount of tax imposed in instalments of Rs. 2,00,000/- per month payable by 10th of every month beginning from February, 1994. This order was passed on 14. 1. 1994. Since the petitioner failed to deposit the amount of instalments due on 10. 2. 1994, vide order dated 28. 2. 1994 the appellate authority dismissed the appeal as not maintainable.
(3.) NO appeal was filed against the order dated 14. 1. 1994 as the appeal had been dismissed on merit on 28. 2. 1994. Petitioner- company filed an appeal against the order dated 28. 2. 1994 before the Tribunal. The Tribunal keeping in view the financial difficulties being faced by the petitioner- company ordered that the amount be recovered in monthly instalments of Rs. 1,00,000/- first starting within a period of one month from the date of issuance of order and the remaining monthly instalments thereafter. Joint Excise and Taxation Commissioner (First Appellate Court) was directed to hear the appeal on merits after notice to the parties-petitioner has filed the present writ petition challenging the orders of the authorities below on merits as well as for issuance of a writ of mandamus declaring Rules 28-A (9) (i) and 28-A (10) (V) of the Rule as ultra vires, unconstitutional and illegal in-so-far as its application is. made retrospective in respect of past transactions. Other averments made in the writ petition are that Appellate Authority had attached certain; property of the petitioner-company to the tune of Rs. 15 lacs and by way of auction it obtained a sum of Rs. 5,11,000/- and adjusted the same towards the arrears of tax due. During the course of arguments a photo-copy of a draft was produced showing a deposit of Rs. 1,00,000/-with the appellate authority towards the arrears of tax.;