CHAUHAN, J. - (1.) -
(2.) THE instant writ petition has been filed for issuing direction to the respondents to modify the Scheme for Granting Exemption of Sales Tax with effect from the date of grant of Eligibility Certificate and not to give effect to it from the date of application. The facts and circumstances giving rise to this case are that petitioner is a registered dealer under the provisions of the Rajasthan Sales Tax Act, 1954 as well as under the Central Sales Tax Act, 1956 and is engaged in manufacturing and sale of highdrated lime and other kinds of lime. The State Government issued a Sales Tax Exemption Scheme, 1989 stipulating clear terms and conditions for exemption of sales tax. Petitioner started commercial production on 13.12.1991 though applied for exemption by filing an application on 3.12.92. The Department pointed out certain lacuna and asked the petitioner to furnish the complete information in respect of the application. Petitioner completed the application on 24.5.1993. Petitioner's case was considered on 28.5.1993 by the Committee established for the purpose but no decision could be taken on that day. It was again considered and the Committee granted exem- ption vide order dated 28.1.1994, but the eligibility certificate granting exemption could be issued to the petitioner only on 16.8.1996. Petitioner was informed, vide order dated 5.8.99 (Annex.3) that it was not entitled any further for any exemption under the Acts after expiry of seven years from the date of the application. Hence this writ petition. It is submitted by Mr. Mehta that by all means, petitioner's application was complete on 24.5.93 and it was granted exemption vide order dated 28.1.1994 and, thus, there could be no justification for issuing the eligibility certificate at such a belated stage, i.e. 16.8.1996. Moreso, as neither the liability nor the exemption of tax can be fastened/given with retrospective effect, the Scheme is to be read as giving the benefit of exemption from the date of grant of eligibility certificate. On the other hand, Mr. Johari has submitted that the Scheme is to be read as such and this court must accord a literal interpretation to the terms of the Scheme and petitioner cannot claim any benefit other than what has been provided under the scheme itself. The Scheme earlier provided for the benefit of exemption from the date of issue of the eligibility certificate. However, the Scheme was amended with effect from 22.4.1993 providing the benefit from the date of application complete by all means as per the direction of this Court in several cases. I have considered the rival submissions. It is right that the liability of tax cannot be fastened from retrospective effect for the reason that the manufacturer/trader/dealer may not be able to pass-over the liability to whole-seller, retailer or consumer. Similarly, the question of exemption of tax may not be given retrospectively as the manufacturer might have already passed over the liability to the consumers (Vide Constitution Bench judgment of the Hon'ble Supreme Court in Lohia Machines Ltd. & Anr. vs. Union of India & Ors. (1). The liability of tax with retrospective effect cannot be fastened even by amendment as it would adversely affect the accrued/vested statutory rights of the assessee. In the instant case, as the petitioner had been granted the eligibility certificate on 16.8.96, though the application had been complete on 24.5.93. According to the Revenue Department, petitioner was not entitled for exemption beyond 23.5.2000 after expiry of seven years as provided in Annexure C to scheme and as the said period is over, no relief can be granted to it.
(3.) PETITIONER had completed the application on 24.5.93 and there is ample evidence on record to show that immediately after the grant of benefit of the Scheme vide order dated 28.1.94, petitioner came to know about the said benefit. PETITIONER wrote a letter to the Commercial Taxes Officer on 17.2.94 and subsequently on 4.4.94 demanding the eligibility certificate. As petitioner had not been granted the eligibility certificate for two years and seven months, it ought to have approached the higher authorities or the writ court to issue direction to the Department to grant eligibility certificate. PETITIONER was fully aware of the fact that by the eligibility certificate dated 28.1.94 (Annex.1) granted exemption for a period of seven years from the date of application and if petitioner was aggrieved by the said order, it ought to have filed an appeal under Clause (6) of the Incentive Scheme, 1989 to the Tribunal. PETITIONER, for the reason best known to it, did not go in appeal against the order; accepted it, took benefit of the Scheme and challenged it when it was informed that it was no more entitled to take benefit of the scheme. PETITIONER's conduct is not approaching the higher authorities/the Court for issuing directions to the competent authority to issue the eligibility certificate and further not challenging the eligibility certificate in appeal, disentitles him for any relief at such a belated stage. The Notification dated 6.7.89 providing for the scheme reveals that in exercise of the powers conferred by Section 8(5) of the Central Sales Tax Act, and the Rajasthan Sales Tax Act, 1954, the Incentive Scheme providing for exemption of sales tax on particular industries in the manner and to the extent and for the period as covered by the said Notification. Clause 5 of the said Scheme provides for grant of eligibility certificate. A new industrial unit can make an application for exemption within 180 days from the date of publication of the Scheme for grant of relief under the scheme. Sub-clause (d) of Clause 5 also requires issuance of the eligibility certificate within a period of seven days from the date of receiving the order of grant by the Committee. Sub-clause (3) of Clause 5 provides that such a certificate shall be valid till the maximum limit of exemption from tax as provided in Annexure C to the Scheme, which provides for exemption for a period of seven years. Sub-clause (g) of Clause 5 of the Scheme specifically provides that benefit of the Scheme shall be available from the date of application filed by the applicant unit, complete in all respects, and such benefit shall be subject to the provisions of the Act. As the exemption is only for a period of seven years and petitioner's application was complete only on 24.5.93, the period of exemption expired on 23.5.2000. There is no scope of interpreting the provisions of the Scheme for the reason that there is no ambiguity in the language and the scheme does not require any interpretation whatsoever. No doubt, there may be a hardship to the petitioner but the court has to give effect to the language of the Scheme and cannot read it otherwise, for the reason that incentive scheme provides for an exemption from the provisions of the Statute. Contents of the Scheme require a strict interpretation for the reason that exemption clause is added to a principal clause primarily with the object of taking it out of the scope of that principal clause what is included in it and what legislature desires to be excluded. (Vide Sales Tax Officer, Jabalpur vs. Hanuman Prasad (2). It is settled principle of law that an exception/exemption clause has to be strictly construed inasmuch as it carves out the exception to the general rule. (Vide Satnam Singh vs. Punjab & Haryana High Court (3) and Grasim Industries Ltd. vs. State of Madhya Pradesh & Ors. (4). In Union of India vs. Wood Papers Ltd. (5), the Hon'ble Apex Court observed as under: "Literally `exemption' is freedom from liability, tax or duty. Fiscally, it may assume varying shapes, specially in a growing economy; for instance, tax holiday to new units, concessional rate of tax on goods or persons for limited period or with specific objectivity etc. That is why, its construction, unlike the charging provision, has to be tested on different touch stones. In fact, the exemption period is like an exc- eption and on normal principle of construction or interpretation of Statute, it is construed strictly either because of the legislative intention or economic justification or inequitable burden or progressive approach of fiscal principle intended to augment of State's Revenue". ;