Jharkhand High Court
Usha Martin Limited (A Company ... vs The State Of Jharkhand Through The ... on 17 May, 2018
Author: D.N. Patel
Bench: Amitav K. Gupta, D.N. Patel
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (T) No. 5991 of 2017
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USHA MARTIN LIMITED (A company registered under the Companies Act, 1956) having its Industrial Unit at Phase-V, Adityapur Industrial Area, Adityapur, P.O. and P.S. Adityapur, Jamshedpur, District Saraikela Kharsawan through its authorized signatory namely T.B. Singh, son of Shri B. Singh, resident of Qr. No. M-35 (old), Adityapur, P.O. and P.S. Adityapur, District Saraikela ..........Petitioner Versus
1. The State of Jharkhand through the Secretary -cum- Commissioner, Commercial Taxes Department, Project Building, Dhurwa, P.O. and P.S. Dhurwa, Ranchi-834004, District-Ranchi
2. Joint Commissioner of Commercial Taxes (Administration), Jamshedpur Division, P.O. and P.S. Sakchi, Town Jamshedpur, District-East Singhbhum
3. Deputy Commissioner of Commercial Taxes, Adityapur Circle, Jamshedpur, P.O. and P.S. Sakchi, Town Jamshedpur, District-East Singhbhum
4. Indian Oil Corporation, through its Regional Manager, having its Regional Office at 25, Princep Street, P.O. and P.S. Princep Street, Kolkata-700072
5. Union of India, through its Secretary, Department of Revenue, Ministry of Finance, North Block, P.O. & P.S. North Block, New Delhi .............................. Respondents With W.P(T) No. 5990 of 2017, W.P(T) No. 6009 of 2017, W.P(T) No. 6044 of 2017, W.P(T) No. 6048 of 2017, W.P(T) No. 6050 of 2017, W.P(T) No. 6081 of 2017, W.P(T) No. 6132 of 2017, W.P(T) No. 6134 of 2017, W.P(T) No. 6138 of 2017, W.P(T) No. 6169 of 2017, W.P(T) No. 6234 of 2017, W.P(T) No. 6416 of 2017, W.P(T) No. 6892 of 2017, W.P(T) No. 6893 of 2017, W.P(T) No. 6897 of 2017, W.P(T) No. 7107 of 2017, W.P(T) No. 7215 of 2017 and W.P. (T) No.6511 of 2017
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Petitioners : Mr. Sumeet Gadodia, Advocate Mr. Ranjeet Kushwaha, Advocate Mr. Ritesh Kumar Gupta, Advocate Mr. Biren Poddar, Sr. Advocate Ms. Darshana Poddar Mishra, Advocate Mr. Piyush Poddar, Advocate Mrs. Aprajita Bhardwaj, Advocate For the State : Mr. Atanu Banerjee, G.A. For respondent no.4 : Mr. Bharat Kumar, Advocate For the Union of India : Mr. Sanjay Kumar Dwivedi, Advocate
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th 17/Dated: 17 May, 2018 Oral Order Per D.N. Patel, A.C.J.:
1. Looking to the contentious issues raised in these writ petitions, the 2 aforesaid writ petitions are Admitted.
2. Learned counsels Mr. Atanu Banerjee, Mr. Bharat Kumar and Mr. Sanjay Kumar Dwivedi waive notice of admission on behalf of respondents.
3. Registry is directed to list these matters in 2nd Week of September, 2018.
I.A. No.9244 of 2017 (in W.P.(T) No.6892 of 2017) With I.A. No.9245 of 2017 (in W.P.(T) No.6893 of 2017) With I.A. No.9246 of 2017 (in W.P.(T) No.6897 of 2017)
4. So far as interim relief is concerned, looking to Section 8(1) to be read with Section 8(3) of the Central Sales Tax Act, 1956 and also looking to Section 2(d) of the Central Sales Tax Act, 1956 as amended with effect from 01.07.2017, these petitioners are purchasing goods, as referred in Section 2(d), for the purpose of mining, generation of electricity and for manufacturing of the goods.
5. Looking to Section 8(3)(b) to be read with the decision rendered by Hon'ble the Supreme Court reported in (1994) 2 SCC 434 (paragraph nos.6, 7, 8, 11 and 18), there is a prima-facie case in favour of these petitioners. The goods which are referred in Section 2(d) of the Central Sales Tax Act, 1956 are being used for the purpose of mining and for the purpose of generation of electricity, and hence, they are entitled to purchase the same at a concessional rate of tax. Section 8(3) of the Central Sales Tax Act, 1956 is explicitly clearer and it is unambiguous and there is no equivocalness so far as use of those goods as defined in Section 2(d) which are used for mining purpose and for generation of the electricity, these petitioners are entitled to purchase the same at a concessional rate of tax which is at 2% as per Section 8(1) of the Central Sales Tax Act, 1956. So far as usage of these goods, as defined in Section 2(d), for manufacturing is concerned, looking to the judgment delivered 3 by Hon'ble the Supreme Court reported in (1994) 2 SCC 434, it appears that if the goods defined under Section 2(d) are utilized for manufacturing of goods, other than what is defined in Section 2(d), then also they are entitled to purchase the same at a concessional rate of tax. Four times the word 'goods' have been used in Section 8(3), first three times it has the same meaning as defined in Section 2(d) whereas the meaning of the word 'goods' is used fourth time in Section 8(3) of the Central Sales Tax Act, 1956, as per the aforesaid reported decision prima-facie means the goods other than what is defined under Section 2(d).
6. As the petitions are pending, we are not much analyzing the fine nicety of Section 8(1) to be read with Section 8(3) to be read with Section 8(d) of the Central Sales Tax Act, 1956 vis-a-vis Article 246-A and 101st amendment to the Constitution of India, otherwise, at interim stage, all the petitions will be decided finally. As there is a prima-facie case in favour of these petitioners, balance of convenience is also in favour of these petitioners and if the stay, as prayed for, is not granted, it will cause irreparable loss to these petitioners. We, therefore, stay an operation, implementation and execution of the Circular issued by the respondents dated 11.10.2017 which is at Annexure-4 to the memo of W.P.(T) No.6892 of 2017 during the pendency and final hearing of these writ petitions. This circular is also annexed at different annexures in different aforesaid writ petitions. We are not mentioning the different annexure numbers. Suffice it to say that the impugned circular dated 11.10.2017 which is common in all the writ petitions issued by the Principal Secretary
-cum- Commissioner, Commercial Taxes Department, Jharkhand, Ranchi is stayed on a condition that concern department will issue necessary 'C' Form to these petitioners which these petitioners can use for the purposes of effecting the inter-state purchase of goods which are defined in Section 4 2(d) of the Central Sales Tax Act, 1956 and the petitioners shall produce these 'C' Forms before the selling dealers outside the State of Jharkhand and provide the said dealers with further undertaking that in the event of these petitioners become unsuccessful in these writ petitions and their challenge to the circular issued by the Principal Secretary -cum- Commissioner, Commercial Taxes Department, Jharkhand, Ranchi dated 11.10.2017 fails, these petitioners shall deposit forthwith, the balance of tax benefit which these petitioners otherwise have derived by use of such 'C' Forms.
7. The State of Jharkhand is hereby directed to issue necessary 'C' Forms, without prejudice to their rights and contentions and such 'C' Forms may be utilized by these petitioners with the undertaking as noted hereinabove and all such actions shall be subject to the outcome of these writ petitions.
8. The petitioners shall also file an affidavit before this Court that in case these writ petitions are dismissed, they shall pay the difference of the tax amount to the selling dealers. This affidavit shall be filed before this Court within a period of six weeks from today, copy whereof will also be given to the respondent-State of Jharkhand.
9. I.A. No.9244 of 2017, I.A. No.9245 of 2017 and I.A. No.9246 of 2017 are allowed and disposed of.
(D.N. Patel, A.C.J.) (Amitav K. Gupta, J.) NKC/Tarun