VEERENDR SINGH SIRADHANA,J. - (1.) The above noted Sales Tax Revisions/References and cross objections filed by the respondent-M/s. Mangalam Cement Limited, raise common questions of law and facts, and therefore, the matters have been taken up together for adjudication by this common order, consented by the counsel for the parties. For convenience, factual matrix of Revision Petition No.53 of 2016, has been taken note of.
(2.) Shorn off unnecessary details, the essential skeletal material facts are: M/s Mangalam Cement Ltd. i.e. the respondent commenced its commercial production of products from 14 th January, 1994 and suffered heavy financial losses, decreasing the net worth of the company. Therefore, the respondent company approached the Board for Industrial and Financial Reconstruction (for short, BIFR), for its revival. BIFR accepting the application of the respondent company, declared it, a sick company and was directed to formulate a Scheme for revival. The respondent company stopped its operations in February of 2003, due to heavy losses, and therefore, requested for 75% benefit under both Rajasthan Sales Tax (for short, RST) and Central Sales Tax Exemption (for short, CST), against earlier benefit of 25% for RST and 75% for CST, which was allowed by the Board of Infrastructure Development and Investment (for short, BIDI), vide notification dated 29th May, 2003. The BIFR, thereafter, finalizing the rehabilitation Scheme for the revival of the respondent sick company, further extended the time period of rehabilitation Scheme benefits to the respondent company up till 4 th April, 2007, vide notification dated 15th April, 2005. The said rehabilitation Scheme was with the specific condition that the benefits to the respondent company shall be available subject to the decision of the Apex Court of the land in the pending case of Binani Cement Ltd. The respondent-company no longer remained a sick company and was fully revived by the year 2007. The Apex Court of the land in the case of Binani Cement Ltd., delivered the judgment dated 19th February, 2014, holding against the sick company, thus, negating the benefits of the rehabilitation Scheme, and therefore, the benefits so availed of by the respondent company became non-admissible. As a result, the petitioner issued show cause notices to the respondent company, dated 3 rd March, 2014, for recovery of sales tax exemption allowed in excess of 25% of RST. The respondent company filed objections through appeal before the Commissioner that was rejected. The Division Bench of the Rajasthan Tax Board vide its order dated 30 th November, 2015 and the amended order dated 3rd December, 2015, allowed the appeal filed by the respondent-company; of which the petitioner is aggrieved of. And therefore, has instituted the instant proceedings, raising following questions of law in the backdrop of the orders made by the Rajasthan Tax Board, which reads thus: i) Whether in the facts and circumstances of the case of Rajasthan Tax Board was justified in law and has not acted illegally and perversely in allowing the appeal filed by the respondent despite of the judgment of Hon'ble Apex Court on merits in the case of M/s. Binani Cement and the same is law of land. ii) Whether in the facts and circumstances of the case the Rajasthan Tax Board has not acted illegally and perversely in observing that the petitioner is not taken any action in pursuance to the directions of BIFR dated 24.05.2007, when the said directions were merely obiter and not binding and further no action was required after the judgment of Hon'ble Apex Court. (iii) Whether in the facts and circumstances of the case if the judgment of Rajasthan Tax Board will allow to stand it will not amount to discrimination with other similarly situated units. (iv) Whether in the facts and circumstances of the case the Rajasthan Tax Board has not acted illegally and perversely in not correctly considering the notification dated 29.05.2003, in which there was clear condition that the said benefit given to the respondent is subject to judgment of Hon'ble Apex Court in the case of M/s. Binani Cement. (v) Whether in the facts and circumstances of the case the respondent assessee was not estopped from questioning the liability arising out of judgment of Hon'ble Apex Court, when it has accepted the notification dated 29.05.2003 and has never questioned the conditions mentioned in the same.
(3.) Mr. R.B. Mathur, learned counsel for the petitioner contended that the respondent company started its commercial production on 12th July, 1990. After permission from Government to setup another unit established a second unit by the name of M/s Neer Shree Cement Ltd., which started its commercial production on 14th January, 1994. The respondent-company filed an application for exemption from tax under the Rajasthan Sales Tax/Central Sales Tax Exemption Scheme for Industries, 1989, and was allowed benefit of 25 % rebate in RST and 75% rebate in CST vide order dated 11th November, 1994, of the SLSC, as the unit established under the name of M/s Neer Shree Cement Ltd. Thus, it was not a new industrial unit rather just an expansion; hence, the benefit of 'a new industrial unit' and 'very prestigious unit', could not have been accorded to the respondent company.;