CHOPRA, J. - (1.) THESE four Special Appeals are directed against the judgment of the learned single Judge dated 23. 03. 1993, whereby the learned Judge has decided S. B. Civil Writ Petition No. 1838 of 1992 Sarvottam Vegetable Products V. State of Rajasthan and other writ petitions mentioned above. All these appeals are directed against this very common judgment rendered by the learned single Judge and hence these appeals were heard together and are being disposed of by a common judgment.
(2.) THE facts necessary to be noticed for the disposal of these appeals briefly stated are that the petitioner Companies are manufacturers and/or dealers in edible oils. Some of the petitioner-appellants are manufacturers and dealers of the stainless steel sheets. THE appellants made some inter-state sales of aforesaid goods i. e. edible oils and stainless steel sheets to various purchasing dealers of Bombay and Gujarat. In most of the goods the sale transactions took place through commission-agents. In most of the cases the selling dealers obtained declarations in form 'c i. e. 'c certificates or forms as they are called in business parlance, received from the purchasing dealers of Ahmedabad and Bombay through their commission agents and submitted them to the Assessing Authorities. It appears that Assistant Commercial Taxes Officer (Anti Evasion) undertook certain survey inquiries and they revalealted that in some cases the registration of some of the purchasing dealers have been cancelled before the sales have been made to them by the petitioner-firms or they were not found to be dealers in edible oil/steel sheets but were found to be dealers in some other commodities and in some cases the counterfoil of 'c forms submitted by the selling dealers were found to be in the name of 3rd parties rather than the petitioners. As a result of these inquiries Anti-evasion proceedings were commenced by respondent No. 2 against the appellants i. e. selling dealers and issued them notices to show cause why additional tax and penalty should not be recovered from them. In addition to the tax which has already been charged recovered from them. In pursuance of the notification Anx. 1 dated 26. 12. 86 and Anx. 2 dated 17. 4. 90 issued by the State Government in exercise of the powers conferred on it under section 8 (5) of the Central Sales Tax Act. To complete the factual matrix final assessment orders have been passed only in the case of Sarvottam Vegetable Product's case whereas in all, in all other cases final orders have yet to be passed. M/s Sarvottam Vegetable Products has however filed an appeal against that final assessment order and that is still pending. The appellants resisted the notices and said that they are only required to furnish 'c forms obtained by them. If they are not found genuine then the purchasing dealers should be held liable for their acts of commission and omission and secondly it was contended that furnishing of 'c forms is not at all necessary, so far as these inter-state transactions are concerned. The provisions of section 8 (5) of the Act hereinafter referred to as the CST Act is a self contained Code and when the Stale Government as a delegatee of the Parliament exercised powers under section 8 (5) provisions of S. 8 (1) to 8 (4) of the CST Act have no application. The scheme under section 8 (5) is independent and totally exclusive in its application so fare as the field covered by it is concerned. Other provisions of section 8 (1) to 8 (4) of the CST Act have no application. It starts with a non-obstanate clause and hence the State Government has every power to put any conditions for availing the concessional rate of tax permitted by it to inter-state sales of specified goods in exercise of powers conferred on it under section 8 (5) of the CST Act. Section 8 (1) read with section 8 (4) of the Act in such cases are not applicable. The furnishing of 'c form for proving such inter-state sales of specified goods is conspicuous by their non-mention in both the aforesaid two notifications. If the requirement of furnishing form C has been deliberately omitted, therefore, it is a case of casuse-omissus i. e. when it is a case of non-mention in both these notifications by the State Government as a delegatee of Parliament. The Courts cannot supply that condition if the State Government has refrained from providing such a condition in the impugned two notifications. It was contended that the provisions of section 8 (1) to 8 (4) of the CST Act so far as they are inconsistent with the notification issued under section 8 (5) of the CST Act cannot be attached and the notification will hold the field and not the provisions of section 8 (1) to 8 (4) of the Act because of the non-obstiante clause with which section 8 (5) of CST Act starts. Certain other contentions have been raised in the appeal as regards the nature of the transactions and as regards the submission of the C form and the forms that have been issued to them but we are not concerned with the factual aspect of controversy involved in the matter i. e. the disputed questions of fact will not be gone into by us. They will be heard and decided by the Assessing Authority. Learned single Judge has also not gone into them and has left them to be considered by the appropriate assessing authority. If the Assessing Authority takes a particular view and the appellants re aggrieved against view they can avail any legal remedy available to them under law against that view/decisions. Presently we are not going to enter into these disputed questions of facts i. e. as regards the acceptability or non-acceptability of the 'c' forms etc. etc. or about the genuineness of the 'c form that has then issued to them. However, the learned single Judge has taken the view that it is the petitioner who claimed concessional rate of tax for the business-transactions/sales made by them in the course of inter- state trade or commerce and as such it is for them to establish prima facie that these transactions are in the course of inter-state trade or commerce and it is always open to the Assessing Authority to ascertain whether the so called business transactions are in the course of inter-state trade or commerce or not and if the assessing authority on the basis of cogent evidence comes to the conclusion that the transactions are not in the course of inter-state trade or commerce then it can certainly disentitle the petitioners from claiming the benefit of concessional rate of tax made applicable to such transactions provided for by notification issued under section 8 (5) of the CST Act. It is the selling dealer who has to satisfy the prescribed authority that the transaction was in the course of inter-state trade or commerce and then and then alone he will be entitled to the benefit of concessional rate of tax. The learned single Judge further felt that the non-obstante clause when reasonably construed only means that the compliance of whole of sub-sections (1) to (4) of section 8 of the Act have not been dispensed with. It is only an enabling provision for the State Government to do away with the rigours of rates of taxation in the course of inter-state trade or commerce. It can only lower the rate of tax or bring it to nil but no further powers have been conferred on the State Government as a delegate of the Parliament to do away with requirements of the other provisions of section 8 (1) to section 8 (4) of the CST Act by exercising powers under this enabling provision-that is sub-section (5) of section 8 and it cannot be allowed to totally mitigate the impact of sub-section (4) of section 8 of the CST Act. Section 8 (4) of CST Act requires that the selling dealer will have to furnish to the prescribed authority in the prescribed manner a declaration duly filled and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in prescribed form obtained from the prescribed authority. The declaration is normally called 'c form in commercial and business parlance. The learned single Judge therefore felt that the provisions of sub-section (5) of section 8 of CST Act are not over-riding provisions and compliance of sub-section (4) of section 8 is very well essential and that has not been done away with and, therefore, the assessing authority will be fully justified in demanding production of C- forms from the purchasing dealers in compliance of the requirements of submission of such forms under sub-section (4) of section 8 of the CST Act. It is this conclusion which is under challenge before us by the appellants and has been meticulously argued and opposed by Mr. L. R. Mehta assisted by Shri Vineet Kothari and candidly supported by the State Government represented by Shri B. C. Mehta assisted by Shri Dinesh Mehta appearing on behalf of the Revenue. We have given our most earnest consideration to the rival submissions made at the Bar. We may state at the very out set that we are not going to deal with the disputed questions of facts. That has to be done by the appropriate Assessing Authority and, therefore, this decision will not govern those disputed questions of facts. We are precisely concerned only with one point in this appeal which has been canvassed before us and it is this that whether on issuance of a notification under section 8 (5) of the CST Act it over-rides the other provisions of section 8 (1) to 8 (4) or whether it only partially over-rides them (as held by the learned single Judge) to the extent of the right of the State Government to reduce tax-rate or bring it to a nil but it does not affect the compliance of the other provisions of section 8 as contained in section 8 (1) read with section 8 (4) of the CST Act. We, therefore, make it clear that the other points which have been raised in these appeals have neither been canvassed before us nor they were pressed at this stage. We, therefore, leave them open to be agitated before the appropriate Assessing Authority by the parties. Be that as it may, Mr. Mehta has strenuously contended that the provisions of section 8 (5) of the CST Act are a complete Code by themselves. They have over-riding effect on the other provisions of section 8 i. e. section 8 (1) to 8 (4) of the CST Act. The two notice which are under challenge have been quoted in extenso (at verbatim) by the learned single Judge on pages 9 and 10 of the judgment and, therefore, we need not repeat them. Section 8 has also been quoted ad-verbatim on pages 5 to 8 of the judgment rendered by the learned single Judge and, therefore, that also needs no repetition in this judgment. Both the notices relate to the transactions of inter-state trade or commerce which are covered by sub-section 8 (1) of the Act i. e. they relate to specified goods that are sold to the Government or to the registered dealers other than the Government in course of inter-state trade or commerce. There is no dispute about the fact that the transactions which have been entered into by the petitioners are transactions of inter-state sales pertaining to edible-oils or stainless steel sheets which are prescribed items and about this the afore mentioned two notifications have been issued under section 8 (5) of the CST Act. The transactions are admittedly in the course of inter-state trade or commerce. Thus the only point of dispute which remains to be decided is whether the Assessing Authority can insist upon the dealers i. e. petitioner-appellants to furnish the prescribed form in form 'c as envisaged by section 8 (4) of the Act. We have already stated that the learned single Judge took the view that the provisions of section 8 (5) of the CST Act are only enabling provisions and authorising the State Government to reduce or to do away with the rate of tax prescribed in section 8 (1) and 8 (2) of the Act. It goes no further and, therefore, even if a notification is issued under section 8 (5) of the CST Act it does not dispense with the compliance with section 8 (4) of the Act which provides that the provisions of sub-section (1) of section 8 shall not apply to any sale in the course of inter-state trade or commerce unless the dealer selling the goods furnishes to the prescribed Authority in the prescribed manner. " (a) a declaration duly filled and signed by the registered dealer whom the goods are sold containing the prescribed particulars in a prescribed form obtained from the prescribed authority; or (b) if the goods are sold to the Government, not being a registered dealer, a certificate in the prescribed form duly filled and signed by a duly authorised officer of the Government: Provided that the declaration referred to in clause (a) is furnished within the prescribed time or within such further time as that authority may, for sufficient cause permit. "
(3.) THE contention of Mr. L. R. Mehta is that sub-section (5) of S. 8 starts with a non-obstante clause and it provides that "notwithstanding anything contained in this section," the State Government may if it is satisfied that it is necessary so to do in public interest by notification in official gazette and subject to such conditions as may be specified therein directed that no tax or lower rate of lax will be recoverable in respect of sales by a dealer in course of inter-state trade or commerce, then the one prescribed under sub-section (1) of sub-section (2) of section 8 or in respect of sale of specified qualities of goods mentioned in the notification the tax rate ran be reduced to nil or it can be lowered then one specified in sub-section (1) or sub-section (2) of section 8 of the Act in the course of inter-state trade or commerce payable by any class of specified dealers or about the type of goods specified in the notifications. His contention, therefore, is that it is a complete code by itself and this non-obstante clause has to be given its full effect. In this respect reliance has been placed on certain observations made by Author Bindra in his book Interpretation of Statutes 7th Edition (1984) page 1093, which are as under : - "the very purpose of non-obstante clause is that provision shall prevail over any other provision and that other provision shall not be of any consequence. In case there is any inconsistency or a departure between a non-obstante 'clause and other provisions, one of the objects of such a clause is to indicate that it is the non-obstante clause which would prevail over. " THE very purpose of non-obstante clause is that that provision shall prevail over any other provision and that other provision shall not be of any consequence in case there is any inconsistency or departure between a non-obstante clause and other provisions, one of the objects of such a clause is to indicate that it is the non-obstante clause have would prevail over other clauses. Even by dictionary sense the expression "notwithstanding" implies that other provisions shall not prevail over the main provision. (8 ). Mr. L. R. Mehta as also Mr. B. C. Mehta have placed reliance on the Commentary by Justice G. P. Singh on the treatise "principles of Statutory Interpretation 5th Edition (1992 ). THE learned Author has observed as under:- "a clause beginning with "notwithstanding anything contained in this Act or in some particular Act or in any law for the time being in force, is some times appended to a section in the beginning with a view to give effect. THE indicating part of the section in case of conflict and over-riding effect over the provisions or Act mentioned in the non-obstante clause has an over-riding effect and it has to be given its due effect. " In this respect Mr. L. R. Mehta placed reliance oil a decision of their Lordships of the Supreme Court rendered in Union of India and others Vs. G. M. Kokil and others reported in (1), wherein their Lordships observed as under : - "it is well know that a non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. Thus the non-obstante clause in section 70, namely, notwithstanding anything in that Act must mean not with standing any thing to the contrary contained in that Act and as such it must refer to the "exempting provisions which would be contrary to the general applicability of the Act. " Reliance was also placed on a decision of their Lord-ships of the Supreme Court rendered in Chunnilal Prasadilal Vs. Commissioner of Sales Tax U. P. Lucknow reported in (2) wherein their Lordships of the Supreme Court observed that art interpretation which will make the provisions of the Act effective and implement the purpose of the Act should be preferred when possible, without doing violence to the language. Our attention was also invited to the Division Bench decision of the Patna High Court rendered in Lalluprasad and another Vs. State of Bihar reported in It also dealt with the non-obstante clause. In para 4 their Lordships observed as under: - "it is not a sound principle of construction to brush aside words in a statute as being inapposite or surplusage if they can have an appropriate application. The very purpose of non-obstante clause is that that provision shall prevail over any other provision and that other provision shall not be of any consequence. In case there is any inconsistency or a departure between a non-obstante clause and other provisions, one of the objects of such a clause is to indicate that it is the non-obstante clause that would prevail over the other clause. Even by dictionary sense, the expression 'notwithstanding" implies that other provisions shall not prevail over the main provision. " The thrust of the entire decision is that non-obstante clause will prevail over other clauses. It simply cannot be brushed aside and it cannot be treated as a surplusage. Our attention was also invited to certain observations of Lord Viscount Simond in Smith Vs. East Elore Rural and District Council and others reported in (4) wherein the learned Judge observed as under : - "my Lord I do not refer in detail to these authorities only because it appears to me that they do not over-ride the first of all principles of construction that plain words must be given their plain meaning. " The contention of Mr. L. R. Mehta, therefore, is that this non-obstante clause and the provision in this sub-section that the State Government is a delegate of the Parliament and in that capacity it can issue any notification in public interest subject to such conditions as may be specified therein is a complete Code. Of course it has power to reduce the rate of tax or bring it to nil but in doing so it over-rides all other provisions of this section and it has Authority while reducing the rate of tax to impose any conditions it may think fit for availing the concessional rate of tax and only those conditions which are mentioned in that notification alone have to be complied with and none- else. It is not within the scope of the notification issued under section 8 (5) of the CST Act that it will be governed by section 8 (4) of the Act because the non-obstante clause clearly excluded such a compliance by use of works "notwithstanding anything contained in this section. " It means that irrespective. of what is provided in clauses (1) to (4) of section 8 the cases where section 8 (5) of CST Act is applicable, the conditions mentioned in the notification alone have to be complied with. Mr. Mehta, therefore, contended that the view of the learned single Judge is wrong when he slays that section 8 (5) of the CST Act is only an enabling provision and it does not over-ride the requirements prescribed by section 8 (4) of the Act. ;