- (1.) By Court Heard learned counsel for the parties. This writ petition has been preferred to challenge the order passed by the Assistant Commissioner of Commercial Taxes, In charge, Jamshedpur Circle, Jamshedpur, dated 21.3.2005 in respect of the assessment year 2000 01, levying a tax on sale of the goods in course of inter State trade and commerce by the writ petitioner assessee @ 10% and @14.43% rejecting the petitioner's claim of concessional rate under the Notification No. S O 27 dated 30.1.1993, which was upheld by the order passed by the appellate authority, Joint Commissioner of Commercial Taxes (Appeal), Jamshedpur Division, vide order dated 19 th April, 2007 and further upheld by the Commercial Taxes Tribunal, Jharkhand, vide order dated 10.7.2008.
(2.) The petitioner's contention throughout was that the petitioner's sale in question was the sale in the course of interState trade or commerce, of the articles which have been notified in the notification dated 30.1.1993. The notification dated 30.1.1993 has been issued by the State Government in exercise of the power conferred by Clause (B) of subsection (5) of section 8 of the Central Sales Tax Act, 1956. By this notification, it has been provided that for all sales in course of interState trade or commerce irrespective of the buyers whether it is Government or it is a registered dealer or unregistered dealer if made of the articles mentioned in the notification dated 30.1.1993, then the rate of sale tax will be 4% in place of regular higher rate of tax. However, the petitioner's said contention was rejected by all the three authorities, i.e. Assessing Officer, Appellate Authority and the Tribunal and it has been held that for taking any benefit of the notification dated 30.1.1993, the dealer is required to submit Form C or D as the case may be and the petitioner should have furnished Form C without which it is not entitled to the benefit of the notification and consequently the petitioner has been levied with tax @ 10%/14.43% creating a total liability of Rs.54,96,61,740/.
(3.) Learned counsel for the petitioner vehemently submitted that all these three authorities committed serious error of law in interpreting the notification dated 30.1.1993 and ignored the fact that the notification was issued under subsection (5) of section 8, which has overriding effect over other provisions of section 8 in view of the non obstante clause and which specifically provides that "notwithstanding anything contained in this section" (section 8), the State Government may grant any exemption in tax in respect of the sales by the dealer, subject to fulfillment of certain conditions, if imposed, obviously under subsection (5) of section 8 of the Central Sales Tax Act, 1956. It is submitted that the notification unqualifiedly has covered all sales in the course of interState trade or commerce of the commodities mentioned in the notification dated 30.1.1993 and is not related to specific buyer i.e., Government or registered dealers only but it includes unregistered dealers. It is further submitted that Form C & D is required by subsection (4) of section 8 only when the sale falls under subsection (1) of section 8 and and for the sales covered under subsection (2) of section 8, no Form is required and one is required to prove that the sale in question is the sale in course of interState trade or commerce obviously, by other evidence than Form C & D and that the notification dated 30.1.1993 no where says that it shall have application only to the sales made under subsection (1) of section 8. It is also submitted that all the authorities and specifically the Tribunal has committed gross error not only in interpreting the notification dated 30.1.1993 but also committed error of law in mis interpreting the judgment of Hon'ble Supreme Court delivered in the case of State of Rajasthan & Ano. Vs. Sarvotam Vegetables Products, 1996 101 STC 547). The Tribunal committed further error of law in not appreciating the Division Bench judgment of the Patna High Court delivered in the case of Rameshwara Jute Mills Vs. State of Bihar & Ors., 2007 9 VST 444 , wherein the scope of section 8(5) of the Central Sales Tax Act, 1956 has been considered in detail and in Rameshwara Jute Mills's case, the case of Sarvotam Vegetables Products was also considered and it has been held that when there is no restriction in the notification issued under section 8(5) and when there is no requirement of furnishing of Form, in that situation, demanding for any Form from the dealer in the State is contrary to the requirement of the notification. Learned counsel for the petitioner also relied upon the judgment of Hon'ble Supreme Court delivered in yet another case of Shree Digvijay Cement Co. Ltd. & Ors. Vs. State of Rajasthan & Ors., 2000 117 STC 395 in support of his argument. Learned counsel further relied upon yet another judgment of the Madras High Court delivered in the case of Sree Ayyanar Spinning And Weaving Mills Limited Vs. State of Tamil Nadu, 109 STC 205.;