Dr. Vineet Kothari, J. - (1.) THE question involved in these revision petitions filed by the Revenue is short but interesting question of law as to whether by issuing a rate Notification, there is an implied supersession of the Exemption Notification issued by the Sate Government and whether in the present cases the rate of tax applicable on the sale of hydraulic excavators (earth moving and mining machinery), mobile cranes and hydraulic dumper would be 8% w.e.f. 19th June, 2000 with the issuance of notification prescribing 8% tax vide Entry No. 106C by the State Government, notwithstanding the previous notification for partial exemption on the said goods vide notification SO No. 356 dated 30.03.2000. The assessee succeeded before the learned Tax Board. In the impugned order dated 12.01.2009, the Tax Board following its own previous order in the case of Telco construction & Equipment Company Ltd. v. Assistant Commissioner, (2000)2 RTR 28 held in favour of the respondent assessee that the assessing authority was not justified in imposing sales tax at the rate of 8% on the respondent assessee. Learned counsel for revenue, Mr. V.K. Mathur and Mr. Lokesh Mathur urged, relying on the decision of Apex Court in the case of Commissioner of Sales Tax, U.P. v. Agra Belting Works, Agra -, SCC (3) 140 that with issuance of Notification on 19th June, 2000 there was implied supersession of the Notification granting partial exemption to the assessee vide notification SO No. 356 dated 30th March, 2000 and consequently w.e.f. 19.6.2000 the assessee was liable to pay 8% sales tax on the sale on hydraulic excavators sold by it, during the relevant period.
(2.) ON the other hand, Mr. Pankaj Bohra and Mr. Niraj Jain appearing for the respondent -assessee vehemently submitted that while first rate notification issued under Section 4 of the R.S.T. Act, 1994 vide notification SO No. 355 dated 30.3.2000, the State Government had prescribed rate of tax in the said notification vide Entry No. 28 at the rate of 4% and by another notification issued on the same date vide SO No. 356 dated 30.3.2000 the State Government exercising its powers under Section 15 of the Act had exempted the tax on sale of hydraulic excavators over 2% rate of tax for a period of 1 year ending on 31.3.2001 and in view of exercise of non -obstinate power under Section 15 of the Act, the said partial exemption cannot be sought to have been impliedly superseded on 19.6.2000 when the State Government vide amending notification under Section 4 of the Act amended the first Notification No. 355 dated 30.3.2000 by inserting the relevant entry No. 106C therein relating to hydraulic excavators imposing 8% tax thereon since there was no specific supersession by said Notification dated 19.6.2000 by the State Govt. They further submitted that by subsequent notification issued under section 8(5) of the Central Sales Tax Act, 1956 on 30/9/2000 also, the State Government had prescribed the rate of tax on the inter -state sales of hydraulic excavators and heavy earth moving machines at 2% and, therefore, the intention of the Legislature throughout was to impose tax on sale of hydraulic excavators at the rate of 2% only. They relied on the decision of Allahabad High Court in the case of Systematic Conscon Ltd. v. State of U.P. & Ors. -2009(6) ALJ 27 and decision rendered by this Court in the case of Assistant Commissioner v. Jyoti Cotton Industries -STR No. 248/2008. decided on 25.9.2008. in support of their contentions. Learned counsel for the assessee also tried to distinguish the Supreme Court decision in the case of Commissioner of Sales Tax v. Agra Belting Works, relied upon by the learned counsel for the Revenue, and submitted that rate of tax applicable for the relevant period form 19.6.2000 to 31.3.2001 would continue to be 2% and not 8% as contended by the learned counsel for the Revenue. I have heard learned counsels at length and perused the relevant Statues and judgments cited at the Bar and the record of the case.
(3.) HAVING given my thoughtful consideration to the controversy in hand, this Court is of considered opinion that actual controversy involved in the case is no longer res Integra and stands concluded by the decision of Apex Court in the case of Commissioner of Sales Tax v. Agra Belting Works (Supra) and the revision petition filed by the Revenue deserves to be allowed.;