BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitioner challenges the order passed by the District Level Screening Committee (for short `d. L. S. C. ') dt. 30. 10. 1991 as communicated vide letter dt. 31. 10. 1991 (Annexure-3) by which the eligibility certificate issued to the petitioner under the Rajasthan Sales Tax Incentive Scheme, 1987 (for short `scheme of 1987') on the recommendation of Dy. Commissioner, Commercial Taxes, Jaipur (Annexure-6) and the order passed by the Rajasthan Taxation Tribunal dt. 29. 04. 1987 (Annexure-7) affirming the said order on appeal. The only ground on which the order cancelling the eligibility certificate is challenged is that the same has been made in breach of principle of natural justice without affording opportunity of hearing to the petitioner. The facts of the case are that the petitioner was issued a eligibility certificate on 24. 06. 1989 under the Scheme of 1987 as a new industrial unit manufacturing the cement for availing the benefit under the Scheme of exemption from payment of tax during the period of eligibility certificate to the extent benefit quantified. The petitioner commenced commercial production of cement on 21. 07. 1987 and applied for issuance of eligibility certificate on 8. 01. 1988. As noticed above the eligibility certificate for availing the benefit of scheme was issued only on 24. 06. 1989. However, the petitioner has collected tax since the commencement of the commercial production on its sales but has not paid such tax to the public treasury, therefore, the assessment for the period from 23. 10. 1987 to 31. 03. 1989 was made against the assessee raising demand for that period. The assessee has contested his liability to pay tax as a new industrial unit claiming exemption from payment of tax. That issue ultimately came in subject matter of S. B. Civil Sales Tax Revision Petition No. 630/91 before this Court.
(3.) THE contention of the assessee was not accepted and it was found from the fact that the assessee has claimed total price which he was charging from buyers which included sales tax also and on which Excise Duty was also paid. As a policy of the assessee to work out total consolidated price which he is charging from customers, the operation cost which has taken place for the purpose of value of the goods manufactured by it from the customers as sales tax. Since the assessee has charged sales tax on the sales made by him, the assessee was held bound to make it over to the public revenue by subjecting himself to the assessment. In respect of very same claim, the assessee has also filed S. B. Civil Writ Petition No. 801/91 which was dismissed as having become infructuous in view of decision rendered in aforesaid Sales Tax Revision. It may not be out of place to mention here that exemption from payment of tax under the Scheme does not exempt the dealer from assessment of tax for each period. That in fact is essential feature of incentive Scheme that regular returns are required to be filed and tax payable in respect thereof has to be assessed. This is so because the exemption from payment of tax on turnover of sales of goods manufactured by new industrial unit is for a period is not absolute and unlimited. The exemption is subject to two limitations one of time and another of quantity. Maximum exemption quantified with reference to eligible capital investment can be availed during the period prescribed. If the maximum amount of such quantum of tax becomes payable before the expiry of period, of eligibility certificate the further exemption ceases. So also even if period of eligibility certificate expires without availing the maximum quantum of tax exemption from payment which could be availed, then also further exemption stops. It becomes essential therefore, regular assessment of tax payable on taxable turnover during such period is also made and amount of tax chargeable thereon is adjusted against limit of quantum benefit. The assessee was thereafter given a notice dt. 29. 01. 1991 by the Commercial Taxes Officer in terms of Clause 4 and 9 of the Incentive Scheme alleging that the assessee has collected sales tax from the customers on the sales made by him itself, he is not entitled to it as he is availing the benefit of exemption from payment of tax under the Incentive Scheme and that amounts to breach of conditions to which the assessee replied by his communication dt. 13. 02. 1991 taking alternate pleas. Firstly that he is not liable to make payment of tax and Section 5g of the Rajasthan Sales Tax Act does not apply to unit governed under the Incentive Scheme which are exempted from payment of tax and therefore he is entitled to charge the sales tax separately and is also exempted from payment of such tax. Alternatively it was submitted that he is not charging tax but is charging a composite price but it is shown separately for the purpose of quantifying the benefit of exemption availed by him. Lastly in alternative it was pleaded by the assessee that he may be allowed to opt for deferment Scheme and may not be forced to make payment of tax collected by him. After holding an enquiry the Commercial Taxes Officer by a detailed order dated 15. 2. 1991 found that assessee is collecting taxes on the sales made by him contrary to and in breach of provisions of the Incentive Scheme and therefore he is not entitled to avail the benefit under the Scheme. The copy of such findings was served on the petitioner-dealer. On receipt of this order Writ Petition No. 892/91 was filed before this Court on 25. 2. 1991 challenging the said order. ;