M/S Marico Industries Ltd vs In Reference Commercial Tax on 29 September, 2022

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Madhya Pradesh High Court

M/S Marico Industries Ltd vs In Reference Commercial Tax on 29 September, 2022

Author: Chief Justice

Bench: Ravi Malimath, Sheel Nagu, Vishal Mishra

                            1



 IN THE HIGH COURT OF MADHYA PRADESH
              AT JABALPUR
                         BEFORE
        HON'BLE SHRI JUSTICE RAVI MALIMATH,
                   CHIEF JUSTICE
                            &
            HON'BLE SHRI JUSTICE SHEEL NAGU
                           &
         HON'BLE SHRI JUSTICE VISHAL MISHRA


               TAX REFERENCE No. 31 of 2021

BETWEEN:-

M/S MARICO INDUSTRIES LTD 94, LASUDIYA MORI,
DEWAS NAKA INDORE (MADHYA PRADESH)

                                             .....PETITIONER
(BY SHRI P.M. CHOUDHARY - SENIOR ADVOCATE
ASSISTED BY SHRI MADHAV KHANDELWAL- ADVOCATE)

AND
IN REFERENCE COMMERCIAL TAX COMMISSIONER
INDORE (MADHYA PRADESH)

                                          .....RESPONDENT
(BY SHRI BRAMHADATT SINGH - GOVERNMENT ADVOCATE)


              TAX REFERENCE No. 24 of 2021
BETWEEN:-
M/S MARICO INDUSTRIES LTD 94, LASUDIYA MORI,
DEWAS NAKA, INDORE (MADHYA PRADESH)

                                             .....PETITIONER
(BY SHRI P.M. CHOUDHARY - SENIOR ADVOCATE
ASSISTED BY SHRI MADHAV KHANDELWAL- ADVOCATE)
                             2


AND
IN REFERENCE COMMERCIAL TAX COMMISSIONER
INDORE (MADHYA PRADESH)

                                          .....RESPONDENT
(BY SHRI BRAMHADATT SINGH - GOVERNMENT ADVOCATE)



              TAX REFERENCE No. 25 of 2021
BETWEEN:-
M/S MARICO INDUSTRIES LTD 94, LASUDIYA MORI,
DEWAS NAKA INDORE (MADHYA PRADESH)

                                             .....PETITIONER
(BY SHRI P.M. CHOUDHARY - SENIOR ADVOCATE
ASSISTED BY SHRI MADHAV KHANDELWAL- ADVOCATE)

AND
IN REFERENCE COMMERCIAL TAX COMMISSIONER
INDORE (MADHYA PRADESH)

                                          .....RESPONDENT
(BY SHRI BRAMHADATT SINGH - GOVERNMENT ADVOCATE)


              TAX REFERENCE No. 26 of 2021
BETWEEN:-
M/S MARICO INDUSTRIES LTD 94, LASUDIYA MORI,
DEWAS NAKA INDORE (MADHYA PRADESH)

                                             .....PETITIONER
(BY SHRI P.M. CHOUDHARY - SENIOR ADVOCATE
ASSISTED BY SHRI MADHAV KHANDELWAL- ADVOCATE)

AND
IN REFERENCE COMMERCIAL TAX COMMISSIONER
INDORE (MADHYA PRADESH)

                                          .....RESPONDENT
(BY SHRI BRAMHADATT SINGH - GOVERNMENT ADVOCATE)
                             3

              TAX REFERENCE No. 29 of 2021
BETWEEN:-
M/S MARICO INDUSTRIES LTD 94, LASUDIYA MORI,
DEWAS NAKA INDORE (MADHYA PRADESH)

                                             .....PETITIONER
(BY SHRI P.M. CHOUDHARY - SENIOR ADVOCATE
ASSISTED BY SHRI MADHAV KHANDELWAL- ADVOCATE)

AND
IN REFERENCE COMMERCIAL TAX COMMISSIONER
INDORE (MADHYA PRADESH)

                                          .....RESPONDENT
(BY SHRI BRAMHADATT SINGH - GOVERNMENT ADVOCATE)


              TAX REFERENCE No. 30 of 2021
BETWEEN:-
M/S MARICO INDUSTRIES LTD 94, LASUDIYA MORI,
DEWAS NAKA INDORE (MADHYA PRADESH)

                                             .....PETITIONER
(BY SHRI P.M. CHOUDHARY - SENIOR ADVOCATE
ASSISTED BY SHRI MADHAV KHANDELWAL- ADVOCATE)

AND
IN REFERENCE COMMERCIAL TAX COMMISSIONER
INDORE (MADHYA PRADESH)

                                          .....RESPONDENT
(BY SHRI BRAMHADATT SINGH - GOVERNMENT ADVOCATE)


              TAX REFERENCE No. 32 of 2021
BETWEEN:-
M/S MARICO INDUSTRIES LTD 94, LASUDIYA MORI,
DEWAS NAKA INDORE (MADHYA PRADESH)

                                             .....PETITIONER
(BY SHRI P.M. CHOUDHARY - SENIOR ADVOCATE
ASSISTED BY SHRI MADHAV KHANDELWAL- ADVOCATE
                                         4


AND
IN REFERENCE COMMERCIAL TAX COMMISSIONER
INDORE (MADHYA PRADESH)

                                                           .....RESPONDENT

(BY SHRI BRAMHADATT SINGH - GOVERNMENT ADVOCATE)

.........................................................................................................................................................
Reserved on         :      16.09.2022
Pronounced on       :      29.09.2022
.........................................................................................................................................................



      These Tax References having been heard and reserved for judgment,
coming on for pronouncement this day, Hon'ble Shri Justice Ravi
Malimath, Chief Justice delivered the following:

                                JUDGMENT

In terms of the order dated 12.07.2022 passed in Tax Reference No.31 of 2021 (M/s Marico Industries Ltd. vs. In Reference Commercial Tax Commissioner, Indore) and connected matters, a Division Bench of Indore Bench of this Court has referred the following question to be answered by the Full Bench:

"Whether, in the facts and circumstances of the case, in view of the legislative amendments effective from 01.01.2000 in the classification of goods in the M.P. Commercial Tax Act, 1994, the Madhya Pradesh Commercial Tax Appellate Board was justified in upholding the classification of Medikar Shampoo manufactured by the applicant in the Entry No.4 of Part III of Schedule 11 (effective from 01.01.2000) or in the entry No.41 of Part III of Schedule II of the Act (Effective from 15.03.2000) instead of Entry 11 of Part IV Schedule II of M.P. Commercial Tax, 1994?"

2. We have heard Shri P.M. Choudhary, learned senior counsel appearing for Shri Madhav Khandelwal, learned counsel for the petitioners 5 and Shri Bramhadatt Singh, learned Government Advocate for the respondents.

3. The question that has been referred to be answered by the Full Bench, in our considered view, is on facts. As the question itself reads, it is dependent on the facts and circumstances of the case with reference to the various amendments therein. Therefore, in our considered view, this is not a matter to be considered by the Full Bench. We do not find any reason at all as to how such a question could be referred for determination by the Full Bench. Therefore, we do not think that the reference, so far as this question is concerned, is appropriate.

4. However, the learned counsel for the petitioners submits that even though the question referred for determination by the Hon'ble Full Bench is not correct, that may not have been the intention of the referral Court. He has taken us through the order of reference. We have considered the same.

5. After narrating the various facts and circumstances involved, the referral Court has stated in para-11, thus:

"11. The aforesaid judgment of Popular Sales (supra) was not brought to the knowledge of the Division Bench while passing the judgment in the case of M/s Emami Ltd. (supra) therein the Division Bench relied on the judgment passed in the State of Madhya Pradesh vs. Vicco Products (Bombay) (TR No.50 of 2018)."

Therefore, it is contended that what the referral Court intended was that there were divergent views of the two Division Benches as in the case of Popular Sales, Jabalpur vs. State of M.P. & others reported in (2012) 20 STJ 287 (MP) and In Reference vs. M/s Emami Ltd. passed by a Division Bench of Indore Bench of this Court in T.R. No.50 of 2018 on 15.04.2019.

6. We have considered the said contention. Even in terms of para 11 of the judgment of the referral Court, what has been stated therein is that the judgment in Popular Sales' case (supra) was not brought to the knowledge of the Division Bench while considering the case of M/s Emami Ltd. (supra). Assuming the narration of facts is appropriate; we still feel that this is not a question for the Full Bench to decide. When a judgment of a Court is not brought to the notice while delivering another judgment, what are the consequences of such a judgment, has been narrated and settled by the Hon'ble Supreme Court in a catena of judgments. The primacy of judgments in such a case is not liable for any interpretation any more.

7. After considering the various judgments of the Hon'ble Supreme Court, a Full Bench of this Court in the case of Jabalpur Bus Operators Association vs. State of M.P. and others reported in 2003 (1) MPLJ 513 has clearly narrated as to how judgments of the like nature have to be considered. It is no more a question to be referred to the Full Bench for determination. When an earlier judgment is not brought to the notice of the Court, the necessary consequences flow, as stated in the case of Jabalpur Bus Operators Association (supra). Therefore, the referral Court should have considered the said judgment before making a reference.

8. Under these circumstances, even if we consider the contention of the petitioners that what was sought to be referred was the divergent view vis- a-vis Popular Sales' case (supra) and M/s Emami Ltd.'s case (supra), we are of the considered view that law being well settled on this issue, the referral Court is always entitled to record a finding and a judgment on the said issue. We do not find it appropriate nor necessary for the Full Bench to consider the same. Therefore, the question for reference in Tax Reference Nos.31, 24, 25, 26, 29, 30 and 32 of 2021 is accordingly answered.

9. The Tax Reference Nos.31, 24, 25, 26, 29, 30 and 32 of 2021 are remitted. The Registry to list these matters before the appropriate Court for necessary orders in accordance with law.

                                     (RAVI MALIMATH)             (SHEEL NAGU)            (VISHAL MISHRA)
                                       CHIEF JUSTICE                JUDGE                     JUDGE

                   S/




Digitally signed by SACHIN
CHAUDHARY
Date: 2022.09.30 19:02:20 +05'30'

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