SINGHAL, J. - (1.) THESE writ petitions are being disposed of by this common order as the point involved is common in all these matters.
(2.) THE petitioner, i. e. , Northern Railway placed orders for purchase of wagons with Central India Machinery Mfg. Company Ltd. Bharatpur. THE seller has charged 7% sales-tax on the sales so effected but shown to sale as 5% in return. A provisional assessment was made on 28. 5. 1973 of such sales for part of the year of 1972-73 under Section 7-B of Rajasthan Sales Tax Act on the ground that Notification No. F. 84/fd/ct/72-18 dated 22. 12. 1972 is not applicable to the petitioner since the wagons are not required for official use. THE matter was challenged before the Appellate Authority and then before the Board of Revenue and the case was remanded by the Board of Revenue on 17. 9. 1980 to make the assessment and to accept D-Form if they are found in order as per Notification dated 22. 12. 1972 referred to above with observation that the observation of lower authorities with regard to use was not correct. While finalising the assessment under Section 10 of the RST Act for the year 1972-73 on 31. 8. 1981 the Assessing Authority came to the conclusion that the company has not produced the declaration form as they were not collected from the Railway Board till then and that the assessee company collected taxes at 7% on the sales of wagons from Railway Board. Against this order an appeal was filed to the Deputy Commissioner Appeals, Jaipur where the declaration forms subsequently obtained were submitted and the matter was sent back to the assessing authority for examining and verifying the claim of the assessee on concessional rates of tax as per the order dated 29. 10. 1982. The matter was considered by the assessing authority again on 8. 8. 1984 and the declaration forms were found in order and it was also found that a sum of Rs. 6,44,230/- is refundable which could be refunded in accordance with the provisions of Section 23-B of the Act. The petitioner thereafter moved an application under Section 23-B of the Act on 27. 3. 1985 which was rejected vide order dt. 16. 7. 1985 on the ground that no one has appeared on behalf of the Railway Board on 24-6-1985 and that the letter submitted on 17. 8. 1982 was issued to M/s. CIMMCO Ltd. Bharatpur and at that time no amount was refundable. In the assessment order dated 31. 8. 1981 no refund was due and the declaration forms submitted along with the letter dt. 17. 8. 1982 were returned since the application dt. 27. 3. 1985 was beyond the period of 12 months and the same was dismissed on this ground. Against this order an appeal was preferred to the Deputy Commissioner Appeals, Jaipur where the matter was remanded to the assessing authority and the application submitted by the petitioner was considered in time. In pursuance of the order of the Appellate Authority dated 20. 7. 1987 the matter was again examined by the assessing authority and it was held that the Railway has not come with the clean hands and is engaged in transportation of passengers and goods which is a commercial activity and use of wagon is a commercial business use. Reliance was placed on the proviso which was added with effect from 17. 6. 1975 wherein it was provided that the Government department shall be liable for payment of difference of the amount of tax between the full rate and the tax paid under the Notification in case the material is used for the purpose other than official use and that using the goods for commercial purposes will not be entitled for benefit under the notification or to make a claim for refund. The relevant language of the Notification by which the provisos were added is as under: - " (1) Provided that where a Central/state Government Department after purchasing goods under this notification utilises such goods for any purpose other than official use ; then such purchasing Government Department shall be liable to pay the difference of the amount between the amount of tax on the sale of such goods payable at the full rate applicable thereto under Section 5 and the amount of tax paid under this Notification; (2) Provided that where a Government Department has made purchases under this notification for official use and after so purchasing, uses the goods for commercial purposes or purposes other than official use, then such Government department shall not be entitled to claim benefit under this notification and shall also not be entitled to make a claim for refund in case a higher rate of tax was charged from him by the seller. " The present writ petition has been filed against order dated 7. 01. 1989 by which, the claim of the petitioner's refund was rejected on the ground that the use of the coaches was for transportation which is a commercial and business activity and not for official use. Directions were also given to issue notice under Section 16 (l) (k) for levy of penalty for issue of wrong declaration to the Railway Board.
(3.) THE submissions of Mr. Singhi are as under: - (a) That the notification dated 7. 1. 1989 which has inserted two provisos for the period 22. 12. 1972 to 17. 6. 1975 is ultravires the power conferred under Sec. 4 (2) of the Rajasthan Sales Tax Act, (b) that the assessing authority while finalising the assessment of the seller if has come to the conclusion that the tax is payable at a concessional rate on account of furnishing the declaration form and refund is also due on account thereof, then when an application for refund is made, the provisions of Section 23-B does not permit to reinvestigate the validity of the form issued by the purchaser, (c) Proceedings under Section 16 (l) (k) cannot be initiated when a refund is claimed by the purchaser. Mr. Bapna appearing on behalf of the respondent has submitted that in respect of the assessment year 1973-74 the appeal is pending before the Tribunal and for the assessment year 1974-75 the appeal is pending before the Deputy Commissioner Appeals and for the year 1975-76 before the Tribunal. Since the petitioner has already availed the remedy as provided in the Act, therefore, the writ petitions in respect of these years are not maintainable. For the assessment year 1972-73 it is submitted that the provisions of Section 4 (2) confers the power on the State Government to issue notification granting exemption prospectively as well as retrospectively and, therefore, even the condition can be imposed with retrospective effect. In order to appreciate the arguments of both the learned counsel and the facts as narrated above it would be relevant to reproduce the provisions of Section 4 (2) of the Rajasthan Sales Tax Act which are as under : - "where the State Government is of the opinion that it is necessary or expedient in the public interest so to do, the State Government may, by Notification in the official Gazette exempt, whether prospectively or retrospectively from tax the (sale or purchase) of any goods or class of goods or any person or class of persons on such conditions and on payment of such fee as may be specified in the notifications. " ;