Himachal Pradesh High Court
M/S International Cylinders (P) Ltd vs State Of H.P. And Others on 7 October, 2015
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.3301 of 2009
Decided on: 07.10.2015.
.
M/s International Cylinders (P) Ltd. ..........Petitioner.
versus
State of H.P. and others ...........Respondents.
___________________________________________________________________
Coram
The Hon'ble Mr.Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr.Justice Tarlok Singh Chauhan, Judge.
of
Whether approved for reporting? Yes.
For the Petitioner: Ms.Kiran Kanwar, Advocate, vice
rt Mr.Anshul Bansal, Advocate.
For the respondents: Mr.Shrawan Dogra, Advocate
General, with M/s Romesh Verma &
Anup Rattan, Addl.A.Gs. and Mr.J.K.
Verma, Dy.A.G.
________________________________________________________
Mansoor Ahmad Mir, C.J.
By the medium of this writ petition, the petitioner has sought writ of mandamus commanding the respondents to declare the notification, dated 18th June, 2009, Annexure P-1, effective from 1st April, 2009 in view of the notification dated 29th May, 2009, Annexure P-4, and also prayed that the tax paid in excess of 1% under Central Sales Tax Act, 1956 be either refunded to the petitioner or directed to be adjusted in future payments. It has also been prayed that the notification, dated 18th June, 2009, be directed to be having retrospective effect.
2. Learned counsel for the parties stated that the issue involved in the instant petition was the subject matter of CWP ::: Downloaded on - 15/04/2017 19:09:30 :::HCHP ...2...
No.8170 of 2012-G, titled M/s Lloyd Electric and Engineering Ltd. vs. .
State of H.P., decided on 24th May, 2013, and the Division Bench of this Court ruled in favour of the State. The said judgment was questioned by the aggrieved party i.e. the writ petitioner in that case, before the Apex Court in Civil Appeal No.6838 of 2015, titled of Lloyd Electric and Engineering Limited vs. State of Himachal Pradesh and others, and the Apex Court, vide judgment dated 3rd rt September, 2015, set aside the judgment passed by this Court and granted the relief to the petitioner.
3. It is apt to reproduce paragraphs 10 to 14 of the judgment of the Apex Court, supra, hereunder:
"10. We do not think it necessary to go into the various contentions raised by the parties in view of the undisputed factual position we have referred to above. The State Government cannot speak in two voice. Once the Cabinet takes a policy decision to extend its 2004 Industrial Policy in the matter of CST concession to the eligible units beyond 31.03.2009, upto 31.03.2013, and the Notification dated 29.05.2009, accordingly, having been issued by the Department concerned, viz., Department of Industries, thereafter, the Excise and Taxation Department cannot take a different stand. What is given by the right hand cannot be taken by the left hand. The Government shall speak only in one voice. It has only one policy. The departments are to implement the Government policy and not their own policy.::: Downloaded on - 15/04/2017 19:09:30 :::HCHP
...3...
Once the Council of Ministers has taken a decision to .
extend the 2004 Industrial Policy and extend tax concession beyond 31.03.2009, merely because the Excise and Taxation Department took some time to issue the notification, it cannot be held that the eligible units are not entitled to the concession till the Department issued the notification. It has to be noted that the Finance of Department of the State Government had concurred with the proposal of the Department of Industries to extend the tax concession beyond 31.03.2009 till 31.03.2013 and the rt Council of Ministers had accordingly taken a decision also. No doubt, the statutory notification issued by the Excise and Taxation Department under Section 8(5)(b) of the Act on 18.06.2009 has stated that the eligible units will be entitled to the concession with immediate effect. Merely because such an expression has been used, it cannot be held that the State Government can levy the tax against its own policy. The State Government is bound by the policy decision taken by the Council of Ministers and duly notified by the Department concerned, viz., Department of Industries.
11. That apart, it appears, the Excise and Taxation Department itself has not actually intended the notification to take effect from 18.06.2009. The definition given to the new and the existing industrial units in the Notification dated 18.06.2009 would indicate so. To quote:
"Explanation I:- For the purposes of this notification,-
(i) 'new industrial unit' means an industrial unit located in Himachal Pradesh which commenced/ ::: Downloaded on - 15/04/2017 19:09:30 :::HCHP ...4...
commences production on or after 31.012.2004, but .
will not include any industrial unit which is formed as a result of reestablishment, mere change of ownership, change in the constitution, re-structuring or revival of an existing industrial unit;
(ii) 'existing industrial unit' means an industrial unit which commenced production before 31.12.2004;"
of
12. Even otherwise, it is not altogether a new concession that has been notified by the Excise and Taxation Department in the impugned Notification dated rt 18.06.2009. As we have noted above, it is an extension of the 2004 Industrial Policy and the resultant tax concession to the eligible units which was available upto 31.03.2009. Therefore, for all purposes, what is notified by the Excise and Taxation Department on 18.06.2009 is an extension of the said concession beyond 31.03.2009 and that is why the notification has used the expression "... for the period ending 31.03.2013" without otherwise indicating the concession already being enjoyed by the eligible units till 31.03.2009.
13. The High Court, with great respect, has gone wrong in not appreciating the background of the case and the decision of the Council of Ministers to extend its own Industrial Policy announced in 2004 and the tax concession beyond 31.03.2009. Once the Council of Ministers takes a policy decision, the implementing Department cannot issue a notification contrary to the policy decision taken by the Government. The High Court also erred in analyzing and understanding the Notification dated 18.06.2009 as if it ::: Downloaded on - 15/04/2017 19:09:30 :::HCHP ...5...
introduced the CST concession @ 1 per cent with effect .
from the date of issuance of notification. As we have already clarified, it is not the introduction of a new policy but an extension of the benefits under the extended policy. It is in this context, the decision of this Court in Suprabhat Steel Limited (supra) and State of Jharkhand and others v. Tata Communications Limited and another of become relevant.
14. Accordingly, the appeal is allowed, the impugned judgment is set aside. It is declared that the rt appellant shall be entitled to the concessional rate of CST @ 1 per cent with effect from 01.04.2009 till 31.03.2013 until it is duly varied by the State Government."
4. Having said so, the writ petition is allowed in terms of the judgment passed by the Apex Court, referred to supra, and stands disposed of accordingly, alongwith pending CMPs, if any.
(Mansoor Ahmad Mir) Chief Justice.
October 07, 2015 (Tarlok Singh Chauhan)
(Tilak) Judge
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