Bombay High Court
The Commissioner Of Sales Tax ... vs M/S. Polyfab Industries on 5 June, 2017
Author: Prakash D. Naik
Bench: S.C. Dharmadhikari, Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SALES TAX REFERENCE NO.31 OF 2009
IN
REFERENCE APPLICATION NO.76 OF 2003
The Commissioner of Sales Tax,
Maharashtra State,
8th Floor, Vikrikar Bhavan,
Mazgaon, Mumbai - 400 010 .. Applicant
Vs.
M/s. Polyfab Industries,
247/2, Station Road,
Chinchwad, Pune - 411 033. .. Respondent
......
Mr. Himanshu Takke, AGP for the Applicant - State.
Mrs. Nikita Badheka, Advocate for the Respondent.
......
CORAM : S.C. DHARMADHIKARI AND
PRAKASH D. NAIK, JJ.
DATE OF RESERVING THE JUDGMENT : APRIL 4, 2017.
DATE OF PRONOUNCEMENT : JUNE 05, 2017.
JUDGMENT (PER PRAKASH D. NAIK, J.) :
This reference is made vide Section 61(1) of the Bombay Sales Tax Act, 1959 by Maharashtra Sales Tax Tribunal ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 2/30 str-31-09-j.doc at Mumbai. The Commissioner of Sales Tax, Maharashtra State, Mumbai had moved the Reference Application No.76 of 2003 before the said Tribunal with request to refer certain questions of law to this Court, which according to the learned Commissioner of Sales Tax have arisen out of the Judgment and order of the Tribunal in Appeal No.96 of 1998 decided on 30th April, 2003. 2 The relevant facts leading to the Reference are as follows:
(a) The opponent (original appellant) is the manufacturer of HDPE yarn, HDPE cloth and filament products. According to the opponent, out of these products, the opponent is not selling HDPE yarn. It is the contention of the opponent that the Yarn is used in the manufacture of HDPE cloth which is neither laminated nor processed. The third product is filament product. The opponent is manufacturing only "Brushes" of the HDPE yarn.
(b) The opponent entertained a doubt as to the levy of taxes on
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"cloth" manufactured out of HDPE yarn with aid of looms.
The opponent claims that the cloth manufactured out of DHPE yarn being a man-made fabric is exempted from levy of sales tax being described in the Column 3 of First Schedule to the Additional Duties of Excise (Goods of Special Importance) Act, 1958.
(c) In order to get the doubt settled from the determining authority, the opponent filed an application on 3 rd June, 1997 under Section 52 of the Bombay Act by posing the following question:
"Whether the sales of 48" width 72 mesh woven cloth and sales of 48" width 40 mesh woven cloth, as indicted under sale Bills No.97190 dated 8th December, 1996 and under Bill No.97186 dated 27th November, 1996, respectively are taxable under any entry under the Bombay Sales Tax Act, 1959, and if taxable, the rate of tax thereof ?"
(d) It was the contention of the opponent that these products ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 4/30 str-31-09-j.doc being man-made fabric are covered by Schedule Entry No.A- 15 appended to the Bombay Act. It was also contended that the opponents were manufacturer of HDPE yarn, HDPE cloth and filament products. The HDPE cloth is manufactured out of DHPE yarn and is man-made fabric. It is subject to additional duties of Excise Act and is free from excise duty with effect from 25th July, 1996. The opponent tendered a letter in support of said submissions regarding the aforesaid product during the course of hearing before the determining authority. In the said letter it was stated that the process of manufacturing HDPE cloth out of HDPE filament is identical to that of textile cloth manufacturing as done on power looms. It was further stated that the opponent gets beams with various width 42, 48 etc., with mash of the filament yarn also fixed in length of 80 meter etc. The opponent then by a similar system of "Weft Shuttles" as used on power-looms, manufacture HDPE cloth. It was further pointed out that the product was produced ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 5/30 str-31-09-j.doc out of "Synthetic Staple Fiber" and it would be a man made fabric for the purpose of excise subheading 54.06 notified under the Bombay Sales Tax Act, 1959. By virtue of the above classification, it was submitted that the product would be exempted from tax. It was further submitted that the excise heading 54.06 covered all woven fabrics of synthetic filament yarn and as HDPF , yarn was also a synthetic filament yarn it was covered by the scope of the above stated excise heading.
(e) The determining authority disagreed with the submissions made by the opponent that the impugned HDPE cloth is covered by Schedule Entry A-15. The determining authority held that the product is covered by Schedule Entry C-I-17 and is accordingly liable to tax at 4%. The determining authority has based its findings on the ground that the goods manufactured by the opponent are plastic articles covered by Chapter 39 of the Central Excise Tariff Act, 1985. ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 :::
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(f) The opponent being dissatisfied with the findings of the
determining authority enumerated in order dated 5 th June, 1998 preferred an Appeal before the Maharashtra State Sales Tax Tribunal disputing the correctness of the finding of the Commissioner of Sales Tax (Determining Authority).
(g) The Tribunal vide its judgment and order dated 30 th April, 2003 set aside the determination order passed by the Commissioner of Sales Tax to the extent it holds the product to be covered under Entry 17 of the Schedule C Part-I. It is held that HDPE cloth is covered under Entry 15 of Schedule A except for the period from 1st October, 1996 to 30th April, 1998. The opponent was also granted prospective benefit for limited period from 1st October, 1996 to 30th April, 1998.
(h) The revenue was not satisfied with the order dated 30 th April, 2003 and preferred an application under Section 61(1) of the Bombay Sales Tax Act requesting the Tribunal to refer certain question of law to the High Court for its decision. The ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 7/30 str-31-09-j.doc Tribunal has made this Reference vide order dated 11 th August, 2006.
3 The Revenue vide its Reference Application No.76 of 2003 had requested the Tribunal to refer certain question of law to this Court for its decision which are as follows:
"(i) Whether on the facts and the circumstances of the case, was the Tribunal justified in holding that the impugned product i.e. Filter fabrics is covered by Schedule entry A-15 except for the period from 1 st October, 1996 to 30th April, 1998?
(ii) Whether on the facts and the circumstances of the case, was the Tribunal justified in holding that the impugned product is covered by Central Excise Head 54.06 being manufactured out of raw material covered by Central Excise Heading 54.04?
(iii) Whether on the facts and the circumstances of the case, was the Tribunal justified in granting a prospective effect to determination from 1st October, 1996 to 30th April, 1998 ?
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(iv) Whether on the facts and the circumstances of the case,
was the Tribunal justified in adjudicating over the classification of the impugned product for the period not related to the transactions impugned in the determination order ?"
4 In support of the Reference, the opponent made the following submissions before the Tribunal :
(a) The product impugned in the determination and described is known as filter fabrics. The predominant use of the product is in filtering water to separate it from suspended particles.
The use can be said to be distinct from the use that in common parlance is attached to fabrics. Hence, in that view of the matter the use may be said to be specialized, technical.
(b) When a dispute over classification arises and when two or more headings are found proximately applicable to a given product, doctrine of harmonious construction comes into ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 9/30 str-31-09-j.doc play. In the present matter, heading 59.11 is the appropriate heading for fabric that are used for technical purposes. It was further contended that interpretation of any entry is a question of law. In the instant case, the competing entries are C-I-17 and A-15 and whether the products falls in one or the other is a question of law. The question posed in the determination proceedings was in relation to a transaction of sale on a particular date. It was called upon to decide the question on the basis of the law applicable on the particular date. The appellate authority cannot decide in the Appeal in relation to the transactions taken place on any other date, because in the original order appealed against the original authority has not determined in relation to such transactions which were not impugned before it.
(c) It was further submitted that the Appeal was against the order passed under Section 52(1)(e) of the Bombay Act. The appellate authority is not seized with the order under ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 10/30 str-31-09-j.doc Section 52(2) of the Act. If the original authority has not passed an order under a particular sub-section, the Appeal cannot be said to be available against the non order. Whether there can be two separate orders, one for the determination and the other of the prospective effect or a single order covering both the aspects is a question of law. According to the Revenue, giving a prospective effect has revenue implications and, therefore, it is the sole discretion of the revenue. The revenue has to forego the amount when assessee has no right to claim prospective effect. In the instant case, the Tribunal has decided that the sale transaction is liable to tax and is covered by the Schedule Entry C-I-17 liable to tax at 4%. The issue of giving prospective effect to the determination is the discretion of the Revenue. There is nowhere in the Act a right to have a prospective effect conferred on the assessee as of right by resorting to appeal proceedings. This power is given under the Act to the Commissioner.
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(d) It was further urged that in view of the aforesaid
submissions, it was a case for reference on the questions raised by the revenue. The questions can be answered in either way. The answer to such questions is not available in any judgments of the Apex Court.
5 The advocate for the opponent made the following submissions before the Tribunal:
(i) The assessee has proved beyond doubt that the product falls in Entry 54.06. Once it is confirmed that the product falls under Entry 54.06 of the Central Excise Tariff, there is no further debate possible. No reference lies as no question of law arises.
(ii) In the Reference Application, new arguments were advanced by the revenue. The arguments advanced in the reference application are uncalled for and beyond the jurisdiction of ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 12/30 str-31-09-j.doc the application of Section 61 of the Bombay Act. The questions posed by the revenue were never before the Tribunal.
(iii) The assessee has proved beyond doubt that the goods fall under Excise Entry 54.06. The classification under the Bombay Act is based on the Central Excise Tariff and, therefore, the reliance on CET by the Tribunal to give prospective effect can be justified. It is a case of referential legislation.
(iv) It was further contended that the Tribunal sitting in Appeal is in continuation of the determination proceeding. It is a power vested in the Commissioner of Sales Tax. It was pointed out that the revenue has failed to consider that before the Commissioner also the plea of prospective effect was made. The order of Commissioner being silent on the said point means that he has not allowed the ground of ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 13/30 str-31-09-j.doc prospective effect. The Tribunal in Appeal has the power to decide the issue of prospective effect. The submission of the department is that the Tribunal has traveled beyond its jurisdiction is devoid of merit. The Tribunal gave prospective effect till the date of its own order in the interest of justice. The prospective effect was given purely on facts of case and no question of law arises. It is a discretionary power used in the interest of justice and fair play. Exercise of discretionary power does not raise any question of law.
6 The Tribunal in the reference order dated 11th August, 2006 observed that, it is agreed that the submission of the revenue that interpretation of any entry is a question of law and in the instant case, the competing entries are C-I-17 and A-15 and whether the product falls in one or the other is a question of law. According to the revenue, the predominant use of the product is in filtering water to separate it from suspended particles. It is further their case that the use can be said to be distinct from the use that in common parlance is attached to fabrics. The ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 14/30 str-31-09-j.doc controversy as to the classification of the product itself is debatable and it is certainly a substantial question of law and therefore, the question nos.(i) and (ii) in that behalf are required to be referred to the High Court for consideration. 7 The Tribunal further observed that the other grievance of the revenue is that the question posed in the determination proceedings was in relation to a transaction of sale on a particular date and the Tribunal was called upon to decide the question on the basis of the law applicable on the particular date. The appellate authority cannot decide the Appeal in relation to the transaction taken place on any other date. This question raised is to jurisdiction and competency of the Tribunal to determine the classification of the product in the context of particular period or rather say beyond the period of disputed transaction. The said question would not arise in the present case because the Commissioner himself has clarified the legal position in respect of the product for the period prior to 1 st October, 1996 and after 1st October, 1996 (i.e. for the transactions other than the ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 15/30 str-31-09-j.doc specified transaction). Hence, the Tribunal's competence cannot be a question in the present reference.
8 The Tribunal further observed in the Reference that as far as the question of prospective effect is concerned, it was submitted on behalf of the revenue that the Appeal was against the order passed under Section 52(1)(e) of the Bombay Act. The appellate authority is not seized with the order under Section 52(2) of the said Act. If the original authority has not passed any order under particular sub section, the Appeal cannot be said to be available against the non order. The assessee has made the application for prospective effect but no order was passed on the said application. It was observed that Section 52(2) indicates that it is a prerogative of the Commissioner of Sales Tax to grant prospective effect, however, it may be noted that Appeal does not lie against any order passed by the Commissioner under Section
52. Section 56 specifies the non appealable order it has neither included the determination order passed under Section 52(1) nor the discretionary order passed by the Commissioner as regards ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 16/30 str-31-09-j.doc grant of prospective effect under Sub Section 2 of Section 52. 9 It was further observed that in the present case the Commissioner has not exercised his discretion in favour of the dealer for granting the prospective effect, but, it is pertinent to note that the appellant has sought relief when they have moved the Commissioner for determination of the rate of the impugned product despite making specific prayer no relief is granted and no order is passed which means that the Commissioner of Sales Tax has refused to grant the said relief. When the orders are made by exercising powers under Section 55(6), the Tribunal has to pass the orders as it deems just and proper. When despite making specific prayers such relief was not granted that is impliedly refused without giving any reason, certainly it becomes a subject matter of Appeal if such inaction on the part of the Commissioner to consider the relief has been challenged in Appeal. The appellant has raised specific ground in the appeal to grant the prospective effect.
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10 The Tribunal further observed in the reference order
that the revenue has placed reliance on earlier decision of the Tribunal in the case of Commissioner of Sales Tax Maharashtra State Vs. M/s. Ashish Enterprises. However, the facts of the present case and the said case stand on different footing. In the case of M/s. Ashish Enterprises (Supra), the determination order as passed on 8th September, 1993, which application for giving prospective effect was filed on 9th January, 1998 i.e. about 4 years and 8 months after the passing of determination order and, hence, it was observed that it is difficult to hold that the dealer can file such application any time after the determination order i.e. without having any time limit. It is further observed that in such an event, it may not be erroneous to hold that prayer for giving prospective effect has got to be made along with the application for determination itself and separate application for such prospective effect may not be maintainable. In the light of the said observations, the power of the Tribunal to ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 18/30 str-31-09-j.doc grant prospective effect in subsequent application was referred to the High Court which is not the case of the present proceedings. It is observed that in the present proceedings the relief for grant of prospective effect has been sought simultaneously while application for determination order was filed and, therefore, the ratio of the decision in the case of M/s. Ashish Enterprises is not applicable.
11 The Tribunal considered the following facts while determining the issue of grant of prospective effect:
(i) On 1st May, 1998, retrospective effect was given to entry C-I-17 with effect from 1st October, 1996.
(ii) Appellant has made application for determination on 21st January, 1997.
(iii) The Commissioner of Sales Tax has decided the issue
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on 5th June, 1996 i.e. after one and half years and the Appellant has not collected any taxes during this period.
12 It is further observed that the Tribunal found that the Appellant was guided by the determination order of Commissioner of Sales Tax in the case of (1) M/s. Sanghavi Industries wherein the "High Density Polyethylene Mono Filament Woven Cloth" as falling under entry 41 of Schedule A; (2) M/s. Bajaj Plastics Limited wherein "HDPE Woven Fabrics" were held as covered by entry 41 of Schedule A under the unamended Act. In the circumstances, the Tribunal while exercising its discretion judiciously granted prospective effect for the limited period of 1 st October, 1996 to 30th October, 1998.
13 The Tribunal, however, in the reference order held that on the facts and circumstances the question may arise, wherein the Commissioner had not given any specific decision in his ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 20/30 str-31-09-j.doc original order on the appellant's prayer for prospective effect under Section 52(2) of the Bombay Act, the Tribunal was legally justified in holding that the Commissioner has rejected the said prayer and in adjudicating upon the prayer in exercise of the appellate powers under Section 55 of the Bombay Act.
14 The Reference Application No.76 of 2003 was allowed and the following questions of law were referred to this Court for its decision:
(i) Whether on the facts and the circumstances of the case, was the Tribunal justified in holding that the impugned product i.e. Filter Fabrics is covered by Schedule entry A-15 except for the period from 1st October, 1996 to 30th April, 1998?
(ii) Whether on the facts and the circumstances of the case, was the Tribunal justified in holding that the ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 21/30 str-31-09-j.doc impugned product is covered by Central Excise Head 54.06 being manufactured out of raw material covered by Central Excise Heading 54.04?
(iii) Whether on the facts and the circumstances of the case, was the Tribunal justified in holding that the Commissioner has rejected the said prayer and in adjudicating upon that prayer in exercise of the appellate powers under Section 55 of the Bombay Act?
15 Section 61 of the Bombay Sales Tax Act relates to statement of case to the High Court. As per the said provisions, within ninety days from the date of the communication of the order of the Tribunal, passed in Appeal being an order which affects the liability of any person to pay tax or penalty or interest or to forfeiture or any sum or which affects the recovery from any person of any amount under Section 39, that person, (the ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 22/30 str-31-09-j.doc Additional Commissioner of Sales Tax having jurisdiction over the whole of the State or the Commissioner), may by application in writing (accompanied, where the application is made by that person, by a fee of One Hundred rupees) require the Tribunal to refer to the High Court any question of law arising out of such order and where the Tribunal agrees, the Tribunal shall as soon as may be after the receipt of such application, draw a statement of the case and refer it to the High Court. It is implicit that a reference can be made to the High Court with regard to any question of law arising out of such order. The law is very clear on the aspect of reference and the approach of the High Court while answering the Reference made by the Tribunal. In a reference, the High Court not being a Court of Appeal would not embark upon a reappraisal of evidence and arrive at finding of fact contrary to that of the Appellate Court. The High Court is not sitting in Appeal but it is deciding a Reference and, therefore, the question of reappraisal of the evidence does not arise. In the present case, the opponent approached the determining authority by preferring ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 23/30 str-31-09-j.doc an application under Section 52 of the Bombay Act. The issue which was considered by the determining authority was whether the sales of 48" width 72 mesh woven cloth and sales of 48" mesh woven cloth, as indicated under sale bills are taxable under any entry under the Bombay Sales Tax Act, 1959 and, if taxable, the rate of tax thereof. The determining authority had opined that the products are covered by Schedule entry C-I-17 and accordingly liable to tax at 4 %. The Tribunal vide its order dated 30 th April, 2003 allowed the Appeal preferred by the opponent by setting aside the order passed by the Commissioner of Sales Tax to the extent holding that the product is covered under entry No.17 of Schedule-C Part-I. The Tribunal further held that the HDPE cloth is falling under Entry A-15 of Schedule A except for the period from 1st October, 1996 to 30th April, 1998. The opponent was granted prospective effect for the limited period from 1 st October, 1996 to 30th April, 1998. Pursuant to the said order, the application under Section 76 was preferred requesting the Tribunal to refer certain questions of law. Apparently the ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 24/30 str-31-09-j.doc reference was sought beyond the scope of order dated 30 th April, 2003. We do not find that there was any question of law to be referred to this Court pursuant to the Tribunal's order dated 30 th April, 2003. The findings of the Tribunal were reaffirmed in the reference order. Most of the questions which were sought to be referred were also considered in favour of the opponent. The questions which are referred are contrary to the finding of the Appellant Tribunal as reflected in order dated 30 th April, 2003 and, also to the observations made in the reference order. 16 The learned AGP representing the State/applicant supported the reference and submitted that the Tribunal is justified in referring the proceedings as it involves the question of law, enumerated in reference order. He advanced the submissions which were raised by Deputy Commissioner of Sales Tax Legal representing the applicant before the Tribunal. Ms. Badheka, the learned advocate representing the respondent/opponent also reiterated the submissions advanced by her before the Tribunal ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 25/30 str-31-09-j.doc and submitted that, this reference is unwarranted and no question of law is involved in the proceedings.
17 The first question of law referred to by the Tribunal is whether on the facts and circumstances of the case, was the Tribunal justified in holding that the impugned product i.e. filter fabrics is covered by Schedule entry A-15 except for the period from 1st October, 1996 to 30th April, 1998? In the reference order dated 11th August, 2006 there is no observation as to why such a question is required to be referred to this Court and for the reasons best known to the Tribunal the said question has been framed for reference to this Court. The Tribunal in the order dated 30th April, 2003 has dealt with such issue in detail from paragraph 22 onwards. In paragraph 22, the Tribunal has observed that the question since arose whether the product HDPE woven cloth which is used as filter fabric can be said to be an impregnated, coated, covered or laminated textile fabrics or textile articles of a kind suitable for industrial use or technical usage. ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 :::
26/30 str-31-09-j.doc The inspection of the sample makes it clear that it is not an impregnated, coated, covered or laminated textile fabric. It is a settled position that the burden is on the department to prove that the product falling under particular sub-heading is not covered by A.D.E. Act and, therefore, fails to qualify as one covered by Schedule Entry A-15 as fabrics described in A.D.E. Act. It is further observed that HDPE woven cloth, known as "Filter Fabrics" cannot be said to be a textile article of a kind suitable for industrial use or technical usage as it is understood in trade or industry. The word "Industrial" is defined in Chambers Dictionary as "relating to or consisting in industry" and the word "Industry" has been defined as "the quality of being diligent, assiduity, steady application". The word "Technical" is defined as "pertaining to art or applied science, industrial, department of knowledge or skill". There is nothing to show that "Filtered Fabric" is a textile article of a kind suitable for use in a factory or an industry or an article of technology and, therefore, it is difficult to agree that the impugned product falls in a heading 54.06 covering fabrics in A.D.E. Act. In ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 27/30 str-31-09-j.doc paragraph 24 of the said order, it is stated that exception was made to entry A-15 by virtue of amendment dated 6th January, 1997 which was further amended on 1st May, 1998 whereby the exception was removed. On 1st May, 1998, a retrospective effect was given to entry C-I-17 with effect from 1 st October, 1996. It was thereafter observed that it is very clear that during the period from 1st October, 1996 to 1st May, 1998, the impugned product was not falling under Schedule entry A-15.
18 The second question referred to is whether the impugned product is covered by Central Excise Head 54.06 being manufactured out of raw material covered by Central Excise Heading 54.04. In respect to this issue also there is no reasoning assigned as to why this question is required to be referred to this Court. In the order dated 30th April, 2003, the issue has been dealt with in depth from paragraph 14 onwards. The Tribunal has considered the rival contentions and relied upon several decisions including the opinion of an expert tendered by the original ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 28/30 str-31-09-j.doc appellant and the Tribunal has opined that it is not possible to accept the contentions of the Commissioner of Sales Tax that the impugned product is not obtained by either of the two processes referred to therein and that therefore cannot be considered as material described in heading 54.05 and, therefore, not covered by Central Excise Tariff Head 54.04. It was further observed that the Tribunal finds good deal of substance in the contention made on behalf of the appellant that the impugned product HDPE woven cloth fulfilled the necessary conditions of heading 54.04 and, therefore, covered by the Central Excise Tariff heading 54.06. The Tribunal had also considered the opinion of expert which was relied upon by the opponent. The reference is apparently silent as to why said issue is considered as a question of law. 19 The third question as to whether the Tribunal was justified in holding that the Commissioner has rejected the prayer and has adjudicated upon that prayer in exercise of the appellate powers, under Section 55 of the Bombay Act. We fail to ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 29/30 str-31-09-j.doc understand as to how the Tribunal has referred to the said issue as a question of law when in the reference order itself, the Tribunal has assigned cogent reasons in affirmative holding that the Tribunal was justified in dealing with the said issue since it was raised before the determination authority as well as the appellate authority. In the reference order, it is observed that in the present case, the Commissioner has not exercised its discretion in favour of the dealer for granting the prospective effect, but, the opponent has sought said relief and moved the Commissioner for determination of the rate of the impugned product and despite making specific prayer, no relief is granted and no order is passed, which would mean that the Commissioner of Sales Tax has refused to grant the said relief. It was further observed that once the orders are appealable by exercise of power under Section 55(6), the Tribunal has to pass the order as it deems just and proper. When despite making specific prayer, the said relief was not granted i.e. indirectly refused without giving reasons, it becomes the subject matter of Appeal, if such inaction on the part of ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 ::: 30/30 str-31-09-j.doc Commissioner to consider the said relief has been challenged in Appeal. The opponent has taken a specific ground in the Appeal to grant prospective effect. The order further justifies the finding of the Tribunal in order dated 30th April, 2003 for granting prospective effect. Therefore, there was no reason to refer the question no.3 as a question of law.
20 In view of the above observations, we find that the Reference was wholly unwarranted and unnecessary and, hence, we pass the following order:
:: O R D E R ::
(i) Sales Tax Reference No. 31 of 2009 is returned unanswered.
(ii) No order as to costs.
(PRAKASH D. NAIK, J.) (S.C. DHARMADHIKARI, J.) ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 00:55:39 :::