Commercial Taxes Officer versus Hindustan Zinc

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IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR.


:::


O R D E R


1.S.B.
CIVIL REVISION PETITION
NO.105/2007 -HINDUSTAN ZINC LTD VS.
COMMERCIAL TAXES OFFICER, SPECIAL
CIRCLE, UDAIPUR AGAINST THE JUDGMENT
AND ORDER DATED 6.3.2007 , PASSED BY
THE RAJASTHAN TAX BOARD, AJMER IN
APPEAL NO.114/2005.
2.S.B.
CIVIL REVISION PETITION
NO.104/2007 -HINDUSTAN ZINC LTD VS.
COMMERCIAL TAXES OFFICER, SPECIAL
CIRCLE, UDAIPUR AGAINST THE JUDGMENT
AND ORDER DATED 6.3.2007 , PASSED BY
THE RAJASTHAN TAX BOARD, AJMER IN
APPEAL NO.115/2005
3.S.B.
CIVIL REVISION PETITION
NO.117/2007 -HINDUSTAN ZINC LTD VS.
COMMERCIAL TAXES OFFICER, SPECIAL
CIRCLE, UDAIPUR AGAINST THE JUDGMENT
AND ORDER DATED 6.3.2007 , PASSED BY
THE RAJASTHAN TAX BOARD, AJMER IN
APPEAL NO.59/2007
REPORTABLE


4.S.B.
CIVIL REVISION PETITION
NO.118/2007 -HINDUSTAN ZINC LTD VS.
COMMERCIAL TAXES OFFICER, SPECIAL
CIRCLE, UDAIPUR AGAINST THE JUDGMENT
AND ORDER DATED 6.3.2007 , PASSED BY
THE RAJASTHAN TAX BOARD, AJMER IN
APPEAL NO.1932/2006
5.S.B.
CIVIL REVISION PETITION
NO.119/2007 -HINDUSTAN ZINC LTD VS.
COMMERCIAL TAXES OFFICER, SPECIAL
CIRCLE, UDAIPUR AGAINST THE JUDGMENT
AND ORDER DATED 6.3.2007 , PASSED BY
THE RAJASTHAN TAX BOARD, AJMER IN
APPEAL NO.1933/2006
DATE OF ORDER :
29th Feb., 2008



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PRESENT
HON'BLE MR. JUSTICE PRAKASH TATIA


Mr. Dinesh Mheta, for the petitioner.
Mr VK Mathur ]
Mr. Rishabh Sancheti ], for the respondent.


<><><>
BY THE COURT:
The petitioner has raised questions of law
in these revision petitions that (i) whether in
the facts and circumstances of the case supply
of explosives by the petitioner to his
contractor for using the same by the contractor
in petitioner's mining operation in mining area
of the petitioner can be treated to be a sale
within the meaning of Rajasthan Sales Tax Act,


1994 (hereinafter referred to as the Act of
1994) and (ii) if answer to question no.(i)
referred above is affirmative and it is held

that aforesaid supply of explosives is a sale
whether such sale is not taxable being
subsequent sale within the State of the goods on
which tax on first point has already paid and


(iii) whether in the facts and circumstances of
the case, the explosives for the purpose of
blasting in the petitioner's mine could not have
been purchased at concessional rates against
declaration form ST17.

-3The
petitioner is a company duly registered
under the provisions of the Rajasthan Sales Tax
Act, 1994, Rajasthan VAT Act, 2003, Central
Sales Tax Act, 1956 and the Rules framed
thereunder. The company engaged in manufacture
of lead, zine and allied metals and it has is
own mines. In the regular course of business,
the petitioner company awarded various mining
contracts to the contractors wherein cement and
steel are required to be used. The petitioner
company is required to use explosives for
winning minerals from its mines. This operation
includes explosions and is got done on job work
basis in the field of the petitioner under
strict control and supervision of explosive
experts. For use of explosives,the petitioner
company is required to obtain licence from the
competent authority under the Explosive Act,
1884 and as per the statutory condition of
licence, the petitioner cannot re-sale the
explosives purchased for its own use. The
petitioner has placed on record the copy of the
explosive licence. The petitioner company
purchased the explosives against declaration
form ST17 on payment of concessional rate of tax



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as stipulated under Section 10(1) and 10(3) of
the Act of 1994. According to the petitioner


explosives have been mentioned in the
certificate of registration of the petitioner
company as raw-material and, therefore, the

petitioner is authorized to purchase the same at
concessional rate of 4% against declaration form
ST17.


The petitioner's company's regular
assessment for the tax under the provisions of
the Act of 1994 for the assessment yearS 19992000,
2000-2001, 2001-2002, 2002-2003 AND 20032004
were framed by the assessing authority, but
notices were issued for re-opening of
assessments under Section 30 of the Act of 1994
to the petitioner on the ground that supply of
material such as cement, iron, steel and
explosives to various contractors firms is sale
within the meaning of Section 2(38) of the Act
of 1994. The petitioner submitted reply and
took the plea that the goods have not been used
for the purpose other than for which they have
been procured and there is no misuse of
declaration form.


The petitioner submitted that ownership of



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the goods had never been transferred to the
contractor and the contractor had returned the
remaining goods as such and no property stands
transferred to the contractor from the
petitioner, therefore, the transaction cannot
amount to sale of the goods liable for tax under
the provisions of the Act of 1994. The assessing
authority rejected the petitioner's contention
and passed assessment orders for various years.
Copies of the assessment orders passed for
various years have been placed on record on
these revision petitions, which are dated
7.8.2003, 27.9.2005 and 15.2.2006 in total for
five years.


Aggrieved against the above assessment
orders passed by the assessing authority, the
petitioner company preferred separate appeals
before the Dy. Commissioner (Appeals) Commercial
Taxes, Udaipur, which were dismissed by Dy.
Commissioner (Appeals) by order dated 6.1.2005
(two appeals), dated 21.6.2005 (two appeals) and
dated 5.10.2006 (one appeal). The petitioner
preferred further appeals before the Rajasthan
Tax Board, Ajmer, which too were dismissed by
the Rajasthan Tax Board, Ajmer vide order dated



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6.3.2007, hence, these revision petitions
raising common questions of law referred above.


According to learned counsel for the
petitioner the petitioner has its own mining
area. In the mining operation certain goods
including explosives are required for which the


petitioner company obtained licence from the
competent authority under the relevant
provisions of law which is apparent from the

copy of the licence placed on record by the
petitioner. The petitioner company cannot sale
the explosives and has not sold it out to
anybody. The petitioner company gave these
explosives to its contractor only for using the
explosives in petitioner's own mining operation.
The explosives exhausts in the mining operation
and after its use nothing remained in the hands
of the contractor. As per the contract between
the petitioner and its contractor, the
contractor could have used the explosives within
the mining field of the petitioner and that
too, under the strict control and supervision of
the explosives experts. Therefore, no legal
title of the goods had passed on to the
contractor. The petitioner company could have



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used its explosives through its own labour for
its own consumption and as per sub-section (3)
of Section 10, the petitioner was entitled to
purchase the goods for its mining operation on
payment of lower rate of tax i.e., @ 4% on
furnishing a declaration duly filled under form
ST14. The petitioner consumed the explosives in
its mining operation is not in dispute,
therefore, the petitioner fulfilled all the
conditions of sub-section (3) of Section 10 of
the Act of 1994 and has not violated the
conditions as provided by sub-section (3) of
Section 10 of the Act of 1994 after purchase of
the goods i.e., explosives. In view of the
above fact, the first contention of the
petitioner is that the explosives in the hands
of contractor is not the goods sold to the
contractor and secondly, even if it amount to
sale then as per sub-section (3) of Section 10
of the Act of 1994, the sale is not prohibited
to a person who uses the said sold goods only
for the purpose and use of the seller. Learned


counsel for the petitioner tried to
distinguish allege sale of explosives by the
petitioner company to its contractor for


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carrying out work of petitioner with the sale of
goods to other person who may not use the goods
for carrying out the manufacture in process or
mining operation of the seller and submitted
that in former cases there cannot be violation
of sub-section (3) of Section 10 of the Act of
1994 because of the reason that the petitioner
company is required to satisfy that the goods
purchased by the petitioner company by
submitting a declaration under form ST17 were
required by it and has been used for its mining
operation. Sub-section (3) of Section 10 of the
Act of 1994 nowhere provides that in case the
goods are required by the assessee and has been
used for the assessee's own work but through
third party then the assessee is not entiled to
get benefit of payment of tax at lower rate as
provided under sub-section (3) of Section 10 of
the Act of 1994.


Learned counsel for the petitioner further
submitted that the petitioner purchased the
goods i.e., explosives after payment of tax
under sub-section (3) of Section 10 of the Act
of 1994 though on payment of lower rate of tax
under sub-section (3) of Section 10 by



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furnishing declaration form ST 17, therefore,
the explosives in the hands of the petitioner is
tax paid goods, therefore, even if it is held
that handing over of the explosives to the
contractor of the petitioner company for the
purpose of mining operation within the mining
area of the petitioner amounts to sale then that
sale is sale of tax paid goods and the tax can
be levied within the State only ones and not on
subsequent sales. Learned counsel for the
petitioner relied upon the judgment of this
court delivered in Shekhawat Explosives Vs.
State of Rajasthan & Ors reported in 2003(5) Tax
Update 155. Facts of which case was slight
different but learned counsel for the petitioner
relied upon this judgment in support of his
argument that since the explosives exhausts in
the mining operation therefore, cannot be
transferred to the petitioner company by the
contractor, therefore,the goods in the hands of
the contractor is not a commodity acquired by
sale.


Learned counsel for the petitioner also
relied upon the judgment of this Court delivered
in the case of Bharat Sanchar Nigam & Anr. vs.



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Union of India & Ors reported in 2006(14) Tax
Update 185.


Learned counsel for the revenue submitted
that in the present case the petitioner not only
delivered the explosives to its contractor but
also recovered the cost of the explosives from
the contractor and this fact is not in dispute.
Therefore, the transaction of sale stands
completed by delivery of goods to the contractor
engaged by the petitioner for execution of their
works contract and receipt of the sale
consideration by the seller -petitioner company.
Sale is not determined from the fact that how
the purchaser (contractor) has used or consumed
the goods or where the purchaser (contractor)
has used the goods. The completed sale
transaction is not affected because of total
exhausts of the sold goods after reaching it in
the hands of purchaser, therefore, where and how
the purchaser; the contractor of the petitioner
company, has used the explosives is absolutely
irrelevant and transaction stands concluded
before goods used by the contractor.


Learned counsel for the revenue as well as
learned counsel for the petitioner both tried to



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interpret sub-section (2) of Section 38 of the
Act of 1994 which defines “sale” to their
favour. Petitioner's counsel submitted that the
petitioner could not have transferred the
property and was not competent to pass over the
“title in goods” to the contractor by virtue of
statutory bar against sale of explosives,
therefore, handing over of the explosives to the
contractor without passing on title vesting in
the purchaser, cannot amount to sale whereas
learned counsel for the revenue submitted that
this issue specifically was under consideration
before the Hon'ble Apex Court in the case of
Karya Palak Enigneer, CPWD, Bikaner Vs.
Rajasthan Taxation Board, Ajmer & Ors reported
in (2004) 7 SCC 195 and the Hon'ble Apex Court
in a case where there was no transfer of title
of property in the contractor and there was a
contract that the goods shall remain on the
work site of the assessee and the contractor
shall not remove the said material from the work
site and shall be opened for inspection of the
assessee and where the contractor was bound to
return the unused materials to the principal
even then Hon'ble Apex Court held that by the



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use or consumption of the materials in the
construction work, property thereof, held,
passed to the contractors and consideration
therefor passed to CPWD by way of adjustment in
the bills and said transaction was held
amounting to sale within the meaning of Section
2(38) of the Rajasthan Sales Tax Act, 1994 and
it has been held that sales tax could be levied
on the said transaction.


I have considered the rival submissions of
learned counsel for both the parties and perused
the facts of the case as well as impugned
orders.


Substantially the facts are not in dispute
and which may be recapitulated here again, that
the petitioner-Company in its regular course of
business, awarded mining works contract to the
contractors and supplied various goods to the
contractors and we are concerned with the supply
of explosives to the contractors by the
petitioner-Company in these matters. The revenue
treated the supply of those explosives to the
contractors by the petitioner as transaction of
sale, as defined under sub-clause (ii) of subsection
(38) of Section 2 of the Rajasthan Sales



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Tax Act, 1994. The contention of the petitioner
is that the said transaction is not sale for the
reasons mentioned above.


Sub-clause (ii) of sub-section (38) of
Section 2 of the Act of 1994 is as under:“
(38) “Sale” with all its grammatical
variations and cognate expressions means
every transfer of property in goods by one
person to another for cash, deferred
payment or other valuable consideration and


includes(
i) ..... ..... .....
(ii) a transfer of property in goods
(whether as goods or in some other form)
involved in the execution of a works
contract;
(iii) ..... ..... ......
(iv) ..... .... ......
(v) ..... ..... ......
(vi) ..... .... ......”

When the word is defined in the Act itself
then there is no need to take help of definition
given in any other Act nor dictionary meaning is
needed to see the meaning of the word. When any
transaction is specifically included in any
definition in the Act that transaction is
required to be given its effect. Section 38(ii)
unambiguously provides that (i) any transfer of



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property in goods by one person to another
person (ii) for cash, deferred payment or for
valueble consideration is sale and (iii)
includes a transfer of property in goods in
whatever form involved in the execution of works
contract.


In case in hand, the property was delivered
to the contractor. The property was for use in
the works contract only. The cost of explosive
was separately charged from the contractor by
deducting the value of the explosive from bills
of contractor. Therefore, all the ingredients
of sale as required by the sub-clause (ii) of
sub-section 38 of Section 2 of the Act of 1994
are present in the transaction. Hence, the
transaction in this case is sale of goods by
petitioner to the contractor in view of
unambiguous and clear definition of sale given
in Section 2 (38)(ii) of the Act of 1994.


A similar question as above, arose before
Hon'ble the Supreme Court in the case of Karya
Palak Engineer, CPWD, Bikaner v. Rajasthan
Taxation Board, Ajmer and others ( (2004) 7 SCC
195), as is raised in these revision petitions.
It was contended in above case that under the



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terms and conditions of the contract, the
material supplied to the contractors remained
the absolute property of the Union and the same
could not be removed from the site of the work
and were at all times open to inspection by the
authorities as per the terms and conditions of
the contract, if there remains surplus material,
then those materials were required to be
returned by the contractors. Therefore, the
title in the property never transferred to the
contractors, and the contractors remained only
custodian of such material. It was also
contended that no specific consideration was
paid for the supply of the goods, therefore, the
supply of materials to the contractors did not
amount to sale and could not be subjected to


sales tax. Hon'ble the Supreme Court, after
considering the above pleas, rejected all the
contentions following the earlier decision of

the Hon'ble Supreme Court delivered in the cases
of N.M Goel & Co. v. STO ((1989) 1 SCC 335) and
Cooch Behar Contractors' Association v. State of


W.B. ( (1996) 10 SCC 380). In N.M.Goel's case
(supra), Hon'ble the Supreme Court held that “by
use or consumption of material in the work of

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construction, there was passing of property in
the goods to the assessee from PWD. By
appropriation and by the agreement, there was a
sale as envisaged in terms of clause of the
contract.” Here in present cases also, it is
not in dispute that the explosives were handed
over physically to the contractors and the
petitioner-Company received the cost of
explosives from the contractor by deducting the
cost of explosives from bills of contractor,
therefore, with the passing of the goods in the
hands of the contractors from the petitioner for
consideration, the transaction of sale stands
concluded. Transaction is not dependent upon the
ultimate use of the goods, transferred to the
contractors, as the goods which may have been
sold to the contractors for valuable
consideration, may be returned to the Principal,
if remained unused and the goods in different
form may be returned to the Principal and the
goods may be consumed or exhausted in the works
contract. The transaction of sale completes with
the passing of the goods for consideration in
the hands of the contractors. Hon'ble the
Supreme Court even in a case rejected the



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contention of the assessee that title in the
property never got transferred to the contractor
and the contractor remained only a custodian of
such materials and held that the transaction is
sale.


In view of the above, so far as the first
contention of the learned counsel for the
petitioner is concerned, it has no force and in
view of the above referred judgments of the
Hon'ble Supreme Court, the petitioner cannot get
any help from the Division Bench judgment
delivered in the case of Shekhawat Explosives v.
State of Rajasthan & anr. (RLW 2003(1) Raj.
648).


Next question yet remained to be answered
is, whether it is necessary that above
transaction of sale can be recognized as sale
only if sale is legal?


The above was the question directly
answered in the case of Commonwealth Vs. Miller,
118 Pa.Super. 58, 180 A. 144 wherein the issue
involved was a tax on stored spiritous and
vinous liquors and the tax was sought to be
imposed upon illegally manufactured whiskey. In
the said case, it has been held “[i] it would



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seem unreasonable to assume, without a clear
expression of such intension, that the
Legislature intended that a tax should be
imposed on those who complied with the mandate
of the law but those who flagrantly flaunted the
law should not be required to pay such a tax.”


In the case of Hiram K. Undercofler,
Commissioner Vs. Veterans of Foreign Wars Post
4625 139 South Eastern Reporter, 2nd Series 776
Ga. it has been held that “We find nothing in
the Act which indicates any intention on the
part of the legislature to differentiate between
legal and illegal sales, and the general
language of the Act should not be limited to
legal sales only merely because the Act does not
specifically tax illegal sales by referring to
them as such.”


In the Hiram K. Undercofler case (supra)
even a issue was raised to tax the illegal sale
is equivalent to licensing an illegal activity
and that the court should not so construe the
Act as to give such an intent to the legislature
in the absence of clear express words to the
contrary. Same can be argument here also in view
of the fact that the explosives, which were



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involved in the works contract were not salable
commodity in open market and, therefore, the
petitioner could not have sold it to anybody
including to its own contractor. We may
recapitulate here, if the sale is illegal, it
may not pas on title to the vendee-the
purchaser and the purchaser may not get full
benefit of that purchased property and that is


subject matter relating to the title to the
property and consequential rights of the
purchaser, which is governed by general law
governing the subject of sale of property. As
stated above, the sale is defined in the

Rajasthan Sales Tax Act, 1994. Tax Act is for
specific purpose and and do not depend upon
other law for the purpose of levy of tax or for
finding out the nature of transaction, if the
taxing law itself has defined the transaction
and included the transaction in any of the
category of transaction for the purpose of levy
of tax. The taxing law may not be a substantive
law determining the property rights of the
parties involved in the transaction and,
therefore, the separate definition of sale has
been given in the Act of 1994. Certain



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transactions, which may fall short of sale in
general law have been included in the
transaction of sale statutorily in the Act of
1994 and that is why the transaction in question
is deemed sale and may not be actual sale so as
to pass on title in property to the vendee-the
purchaser. The illegal transaction of sale may
not pass on title of property to the vendee but
still it is sale for the purpose of Act of 1994.
An illegal sale may have penal consequence or
other liability of vendee and or vendor and that
may be statutory, but cannot convert the illegal
transaction into legal transaction if law does
not permit. In taxing statute, the statutes are
required to be constructed strictly and at the
same time, when language of the Act is clear and
unambiguous then there is no reason to presume
that the statutory provisions of law creating
liability has been enacted to licensing the
illegal activity (in this case sale of
explosives) to make the illegal transaction
legal. Therefore, the fact whether the
petitioner could have sold the explosives to the
contractor in view of the restrictions under the
Explosives Act is totally irrelevant and



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immaterial.


Same view was taken in the case of Y.


1st


Laxman v. Commercial Tax Officer, Circle,
Udipi and Anr. ( (1975) 35 STC 393(Kar.), the
Karnataka High Court held that “ the expression
“buying, selling, supplying or distributing
goods” used in section 2(1)(k) of the Act does
not exclude buying, selling, supplying or
distributing goods in an illegal way. The
liability to pay sales tax does not depend upon
whether the business carried on by the dealer is
lawful or not. Even when buying, selling,
supplying or distributing goods is not
authorised by law, a person who carries on those
activities would be liable to pay sales tax
under the Act.”


In view of the above, it is held that even
if transfer of property in goods was not


permitted by statutory provision; i.e., the
explosive Act even then it was a taxable
transaction under the Act of 1994.

Another contention of the learned counsel
for the petitioner is that since the explosives
were consumable commodity in the hands of the
petitioner and the said explosives have been



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consumed in the works contract, therefore, the
transaction cannot be a sale.


The learned counsel for the petitioner,
tried to draw distinction between the goods
which are transferred to contractor and which
are used or involved in execution of works
contract in two categories,one which are
returned to the Principal by the contractor
after completion of the works contract in its
original form or in its different form and
others which are consumed or exhausted in the
works contract. According to the learned counsel
for the petitioner, the goods which can be
returned to the Principal by the contractor
alone can be subjected to tax. And the goods
which are consumed and exhausted in the
execution of works contract and nothing remains
with the contractor then the transfer of those
consumable goods to the contractor, cannot be
treated to be sale even under deeming clause of
sale. The learned counsel for the petitioner for
this purpose, relied upon the judgment of the
Hon'ble Supreme Court deliverd in the case of
Gannon Dunkerley & Co. and others v. State of
Rajasthan & others (1993(88) Sales Tax Cases



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204).


It appears that in the case of Gannon
Dunkerley(supra), a different question also
cropped up which was with respect to the
determination of the value of the goods which
are involved in execution of the works contract.
The value of the goods involved in works
contract were of two types; one where value of
goods involved in works contract was known and
another where its actual cost is not known. In
former case there is no difficulty in levying
the tax. In later case a formula for determining
the value of goods involved in works contract
was worked out after taking into consideration
the suggestions of contractors and suggestion
came from the State that more convenient mode
for such determination is to take the value of
the works contract as a whole and deduct
therefrom the cost of labour and services
rendered by the contractor during the course of
execution of the works contract. The learned
counsel for the contractors submitted that in
that event, the cost incurred on the items
suggested by the contractors may be deducted
from the value of the entire contract in order



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to arrive at value of the goods involved in the
execution of the works contract. Hon'ble Supreme
Court held as under:


“The value of the goods involved
in the execution of a works contract


will, therefore, have to be determined
by taking into account the value of the
entire works contract and deducting
therefrom the charges towards labour
and services which would cover:


(a) labour charges for execution
of the works;
(b) amount paid to a subcontractor
for labour and services;
(c) charges for planning,
designing and architect's fees;
(d) charges for obtaining on hire
or otherwise machinery and tools used
for the execution of the works
contract;
(e) cost of consumables such as
water, electricity, fuel, etc., used in
the execution of the works contract the
property in which is not transferred in
the course of execution of a works
contract; and
(f) cost of establishment of the
contractor to the extent it is
relatable to supply of labour and
services;
(g) other similar expenses

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relatable to supply of labour and


services;
(h) profit earned by the
contractor to the extent it is
relatable to supply of labour and
services.

The amounts deductible under these
heads will have to be determined in the
light of the facts of a particular case
on the basis of the material produced
by the contractor.”.


According to the learned counsel for the
petitioner, since the explosives is a consumable
item and in fact consumed in mining operation,
therefore, as per clause (e), the entire cost of
explosives is required to be deducted from the
value of the goods involved in execution of
works contract, which in other words, mean that
no tax can be levied on the value of the
consumable item which is explosive in this case.
The argument appears to be quite attractive but
is devoid of any force because of the reason
that deduction from the value of goods involved
in the execution of a works contract can be
claimed only of “charges towards labour” and
“services” obviously provided by principle. The
explosive is not falling in either “labour



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charges” nor it is “service” provided to the
contractor. As per clause (e) referred above,
the consumable items are only the items used
ancillary in works contract and those can be
water, electricity and fuel etc., as these items
are not the goods transferred to the contractor
in execution of works contract and providing
above or like items, the contractor is given
some facilities by the Principal engaged in
works contract. In mining operation, the main
article with which operation can be given effect
to, is the explosive and that explosive can be
put to blast with the help of electricity, which
may be generated or obtained from different
source. The explosive is the item like cement,
iron etc,for which tax is leviable. In mining
operation, fuel is consumed to run the machinery
like in other works contract and the machineries
are run by electricity and fuel and in that
process, there may be consumption of water.
Therefore, the explosives are not those
consumable items which can be equated with the
water, electricity or fuel. When in the
definition clause or a list prescribing certain
items, is not exhaustive and uses the words



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“such as” and “etc.” then other items or
articles or goods which are similar to the goods


or articles, referred in the definition
depending upon the facts, can be included in
said definition.

The Hon'ble Supreme Court in the case of
Gannon Dunkerley & Co. (supra) while considering
the suggestion that the value of goods involved
in the execution of the works contract is
required to be determined by taking into account
the value of entire works contract and deducting
therefrom the charges towards labour and
services held that item referred above in
preceding para from (a) to (h) the account
value of which may be deducted from entire works
contract as charges towards labour and service
and, thereafter, clearly observed that “the
amount deductible under these heads will have to
be determined in the light of the facts of a
particular case on the basis of the material
produced by the contractor”. Here, in this
case, the specific known commodity which has
been transferred to the contractor is the
explosives. Its value is known and, therefore,
is not item transferred in the execution of



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work, value of which is required to be
determined by assessment only as is required to
be determined in a case where Principal or
contractor, as the case may be, does not
maintain proper accounts or accounts maintained
by him are not found worthy of credence.
Therefore, the revenue was justified in levying
the tax on the value of the goods, which deemed
to have been transferred to the contractor in
execution of the works contract.


In view of the above discussion, the answer
of question no.1 is that the transaction
referred in question no.1 is sale within the
meaning of Rajasthan Sales Tax Act, 1994 under
sub-clause (ii) of sub-section (38) of Section 2
of the Act of 1994.


Another contention of the petitioner covered
by question no.(ii) and (iii) is that the
petitioner could have purchased the goods on
payment of concessional rate of tax as the goods
were required as raw-material for mining
operation of the petitioner and the explosive
has been shown as raw-material in the
certificate of registration of the petitioner
and, thereby, the condition of sub-section (1)



-29


of Section 10 fulfilled and otherwise explosives
were used by the petitioner in the process of
mining and if it is held that petitioner not
entitled to take benefit under sub-section (1)
of Section 10 then was entitled to benefit under
sub-section (3) of Section 10 of the Act of
1994. The declaration form ST17 is a composite
declaration form covers all the transactions and
if the purchase falls in any of the category
given in the form ST17 or under Rule 23 then
consequence is only one that tax will be levied
at concessional rate of tax and in this case @
4% only. Therefore, even if the declaration
given in ST17 form may be found wrong merely on
the ground that the declaration is not falling
in particular category and it is found that it
falls in another category then that cannot be
said to be a violation of declaration and it is
a technical mistake only cannot have penal
consequence of charging full rate of tax. For
this purpose we may examine relevant provisions
of law.


Section 10 of the Act of 1994 allows sale
and purchase of certain goods on payment of
concessional rates of tax. The petitioner's



-30


contention is that he was entitled to purchase
the explosives on payment of concessional rate
of tax under Section 10 of the Act of 1994 in
view of the fact that the explosives have been
shown in the certificate of registration of the
petitioner company as raw-material and,
therefore, as per sub-section (1) of Section


(10) of the Act of 1994, the petitioner was
entitled to benefit of purchasing the explosive
on payment of concessional rate of tax and he
submitted a declaration form ST17 and paid the
tax @ 4% and, thereafter, used the above
explosives for its own purpose. In view of the
above facts, the explosives were tax paid
commodity in the hands of the petitioner.
According to learned counsel for the
petitioner under any provision of Section 10, it
has not been provided that the goods purchased
after availing the benefit of payment of
concessional rate of tax are required to be used
in any particular manner. The requirement under
sub-section (1) of Section 10 of the Act of 1994
are that dealer should be a registered dealer
under the Act of 1994, the goods must be shown
as raw-material in his certificate of



-31


registration and as per sub-section (2) of
Section 10 of the Act of 1994 goods are required
to be used by the person himself, purchasing the
goods on payment of concessional rate of tax.
And in case, after purchasing the goods on
payment of concessional rate of tax, the goods
are not utilized by him for the purpose
specified in sub-section (1) of Section 10 of
the Act of 1994 then said person is liable to
pay the difference of amount of tax, which would
be the difference between full rate and the
amount of tax paid under sub-section (1) with
interest @ 2% per month.


Even as per sub-section (3) of Section 10 of
the Act of 1994 the goods other than raw-
material if are purchased by the dealer, which
are required by him for use in the manufacturing
or processing of goods for sale or in mining or
in generation or distribution of electricity
then said dealer can purchase the goods on
payment of concessional rate of tax. In the
present case, firstly the commodity has been
shown as raw-material in the certificate of
registration of the petitioner and secondly,
even if it is treated not to be raw-material



-32


then the explosives involved in the works
contract were required by the petitioner for use
in its own mining operation and for these facts
there is no dispute then the petitioner was
entitled to take benefit of purchase the goods
on payment of concessional rate under Section 10
of the Act of 1994 and the petitioner paid the
tax @ 4%, therefore, the explosives were tax
paid commodity and even if it is held to be sale
then it is sale of tax paid goods, therefore,
the same cannot be subject to tax second time
even if it was sold to the contractor (in law)
because sale was within State and as per Section
4 tax is one time tax.


It is also submitted that the Rule 23
prescribes form ST17, which is the declaration
given before purchasing of the goods of
concessional rate by the dealer and it very
specifically provides that a purchase may be for
re-sale within the State as per sub-clause (i)
in form ST17 in consonance with the of sub-
clause (i) of sub-rule (1a) of Rule 23 of the
Rajasthan Sales Tax Rules, 1995. In this form
itself as per clause (iv) the dealer can give
declaration about the goods purchased that above



-33


goods will be used as processing articles under
sub-section (3) of Section 3 of Section 10 of
the Act of 1994 The petitioner's declaration in
form ST17 was submitted under sub-clause (iv) of
sub-rule (1a) of Rule 23 of the Rules of 1995
and it is found that it has been falling in
other clause of Rule 23 then it cannot be said
that the petitioner-dealer has violated any of
the conditions of form ST17 merely because of
describing its purchased goods in different
category which has no other consequence then the
consequence which is if the goods are purchased
in the category declared by the petitioner.


The arguments advanced by learned counsel
for the petitioner are devoid of force in view
of the fact that once it has been held that the
transfer of property to the contractor is sale
under sub-clause (ii) of sub-section (38) of
Section 2 of the Act of 1994 then that took
place before the goods could have been utilized
by the petitioner under sub-section (1) or under
sub-section (3) of Section 10 of the Act of 1994
and, therefore, it cannot be held that the goods
were used by the petitioner itself as raw-
material or has been used for petitioner's own



-34


purpose by the petitioner itself. In view of
the above, the Board of Revenue rightly held
that the event of sale took place prior to its
use in the mining operation of the petitioner
and, therefore, the petitioner is guilty of
giving wrong declaration under ST17. The
consequence of it is under sub-section (2) of
Section 10 of the Act of 1994 and petitioner has


been charged at only the difference amount of
tax and rightly held so.
The next contention of the petitioner is

that petitioner is not liable to pay interest
because of the reason that as per sub-section


(1) of Section 58 the interest can be levied for
the period starting from the day immediately
succeeding the date specified for such payment
and ending with the day on which payment is made
and according to learned counsel for the
petitioner till the revenue determined the
petitioner's liability of payment of tax by
order, he could not have paid the tax amount.
It is undisputed that it is the duty of the
dealer to pay the tax and it is not dependent
upon any order, which may be passed under the
Act of 1994. Section 58 of the Act of 1994



-35


clearly provides that in case dealer commits
default in making payment of any amount of tax


(i) leviable or (ii) payable or (iii) of any
amount of tax, fees interest or (iv) penalty
assessed or (v) determined or (vi) of any amount
or (vii) demand otherwise payable, within the
specified time under the provisions of the Act
of 1994 or rules made or notification issued
thereunder then dealer is liable to pay interest
for the period starting from the day
immediately succeeding the date specified for
such payment. Therefore, interest can be
charged on the amount when payment of tax is
required by law itself by particular time and in
that situation, the payment is not dependent
upon passing of any order by the assessing
authority. In this case, the petitioner paid the
tax @ 4% admittedly and he was not entitled to
pay the less amount of tax and, therefore, the
interest has rightly been levied against the
petitioner.
In view of the above reasons, the revision
petitions are dismissed.


(PRAKASH TATIA), J.


c.p.goyal/

Shree Rajasthan Texchem versus Union of India

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR


(1) CENTR.EXCISE APPEAL No. 2 of 2005
SHREE RAJASTHAN TEXCHEM LTD
V/S
UNION OF INDIA & ORS


(2) CENTR.EXCISE APPEAL No. 2 of 2003
SHREE CEMENT LTD
V/S
UNION OF INDIA & ORS


(3) CENTR.EXCISE APPEAL No. 3 of 2003
M/S MAHARAJA SHREE UMAID MILLS LTD
V/S
UNION OF INDIA & ORS


(4) CENTR.EXCISE APPEAL No. 4 of 2003
M/S MAHARAJA SHREE UMAID MILLS LTD
V/S
UNION OF INDIA & ORS


(5) CENTR.EXCISE APPEAL No. 5 of 2003
M/S MAHARAJA SHREE UMAID MILLS LTD
V/S
UNION OF INDIA & ORS


(6) CENTR.EXCISE APPEAL No. 6 of 2003
M/S MAHARAJA SHREE UMAID MILLS LTD
V/S
UNION OF INDIA & ORS


(7) CENTR.EXCISE APPEAL No. 14 of 2004
SHREE SHYAM FILAMENTS
V/S
UNION OF INDIA & ORS



(8) (8)
M/S LAKSHMI CEMENTV/SUNION OF INDIA & ORS
(9) CENTR.EXCISE APPEAL No. 1 of 2005
SHREE RAJASTHAN SYNTEX LTD
V/SUNION OF INDIA & ORS
(10) CENTR.EXCISE APPEAL No. 7 of 2005
RAJASTHAN PETRO SYNTHETCS LTD
V/SUNION OF INDIA & ORS

Mr. Dinesh Mehta, Mr. Vikas Balia, Mr. Ramit Mehta &
Mr. Avinash Acharya for the appellants.


Mr. Rishabh Sancheti & Mr. V.K. Mathur, for the


respondents.


Date of Order : 26.3.2008


HON'BLE SHRI N P GUPTA,J.
HON'BLE SHRI DEO NARAYAN THANVI,J.


ORDER


(Per Hon'ble Gupta, J.)


This bunch of appeals involve common question of


law, being as under:


“Whether in the facts and circumstances of
the case, the Tribunal was right in coming to
the conclusion that under Section 112(2)(b)
of the Finance Act, 2000 interest can be
levied even without there being adjudication
of show cause notice, which are pending
decision at the time of commencement of the
aforesaid provision?”



It may just by the way be mentioned, that in four
appeals, being no.6/03, 5/03, 4/03 and 3/03 one additional
question is also involved, and framed, being as to whether
interest could be levied if at all only uptill 25.10.2000,
the date on which the cheque was presented in the Bank.


The facts in all the matters are almost common,
except the final product manufactured by the different
appellants in different appeals.


We think it appropriate to give brief resume of
the facts giving rise to the present controversy.


On different dates, notices were issued by the
competent authority, calling upon the assessees to show
cause as to why the amounts mentioned in the notice
representing Modvat credit, availed by them on HSD oil, be
not recovered, as the Modvat credit is not available to
them. It is at this stage, that various petitioners filed
writ petitions before this Court, challenging the very
jurisdiction of the authority to initiate the proceedings,
and for that purpose the assessee relied upon certain
judgments of the Tribunal, rendered in the case of India
Cements Ltd. Vs. CC & CE, Hyderabad reported in 1997(95)
ELT-520, and Jindal Polymers Vs. Commissioner of Central
Excise Indore reported in 1999(114) ELT-322, wherein the



learned Tribunal had taken the view, that the Modvat credit


is available on the HSD oil to the assessee. In those writ


petitions, notices were issued, and interim stay were


granted. The writ petitions were filed during the period


1997 to 1999. It was during pendency of these writ


petitions, that the Finance Act, 2000 came to be passed,


which received the assent of the President on 12.5.2000.


Section 112 whereof reads as under:


“112. Validation of the denial of credit of duty
paid on high speed diesel oil.-(1) Notwithstanding
anything contained in any rule of the Central
Excise Rules, 1944, no credit of any duty paid on
high speed diesel oil at any time during the
period commencing on and from the 16th day of
March, 1995 and ending with the day, the Finance
Act, 2000 receives the assent of the President,
shall be deemed to be admissible.


(2) Any action taken or anything done or purported
to have been taken or done at any time during the
said period under the Central Excise Act or any
rules made thereunder to deny the credit of any
duty in respect of high speed diesel oil, and also
to disallow such credit to be utilised for payment
of any kind of duty on any excisable goods shall
be deemed to be, and to always have been, for all
purposes, as validly and effectively taken or
done, as if the provisions of sub-section (1) had
been in force at all material times and,
accordingly, notwithstanding anything contained in
any judgment, decree or order of any court,
tribunal or other authority;
(a) no suit or other proceedings shall be
maintained or continued in any court, tribunal or
other authority for allowing the credit of the
duty paid on high speed diesel oil and no
enforcement shall be made by any court, tribunal
or other authority of any decree or order allowing
such credit of duty as if the provisions of subsection
(1) had been in force at all material
times;

(b) (b) f
duty, which have been taken or utilised but which
would not have been allowed to be taken or
utilised, if the provisions of sub-section (1) had
been in force at all material times, within a
period of thirty days from the date on which the
Finance Act, 2000 receives the assent of the
President and in the event of non-payment of such
credit of duty within this period, in addition to
the amount of credit of such duty recoverable,
interest at the rate of twenty four per cent, per
annum shall be payable, from the date immediately
after the expiry of the said period of thirty days
till the date of payment.
Explanation.-For the removal of doubts, it is
hereby declared that no act or omission on the
part of any person shall be punishable as an
offence which would not have been so punishable if
this section had not come into force.”


On passing of this Finance Bill, these writ


petitions were amended, and the provisions of the Finance


Act were challenged being ultravires to the Constitution.


Of course, those amendment applications were allowed, and


the bunch of the writ petitions was ultimately decided by


the Division Bench, vide judgment dt. 3.4.2002, holding the


validation Act to be intra-vires, and dismissing the writ


petitions, finding no merits therein.


It may also be mentioned at this stage, that one


matter, being in Commissioner of Central Excise, Hyderabad


Vs. Associated Cement Companies Ltd. Mancherial, reported


in (2003) 9 SCC-74, came to be decided by Hon’ble the


Supreme Court, and therein a view was taken, that the



Tribunal was justified in arriving at the conclusion, that
the assessee was entitled to get the benefit of
notification till Rule 57-B is amended, and the appeal was
dismissed. Then, it was held that the assessee was entitled
to Modvat credit. However, a review petition was filed,
which was allowed, vide judgment dated 8.11.2004, reported
in 2005(180) ELT-3, wherein it was found, that
inadvertently attention of the Court was not drawn to
provisions of Section 112 of Finance Act, 2000. Then, the
provisions were quoted, and it was found, that sub-section


(1) of Section 112 shows, that no credit is admissible on
any duty paid on high speed diesel oil at any time during
the period commencing on and from the 16.3.1995 and ending
with the day the Finance Act, 2000 received the assent of
the President, which was given on 1.4.2000. It was noticed,
that the period in question comes under the purview of
Section 112(1), and it was held, that since the aforesaid
provision provides that notwithstanding anything contained
in Rules, the credit is not admissible, the assessee was
not entitled to get the benefit of Rule 57B. Then in para-5
it was held, that though the assessee is not entitled to
the benefit as aforesaid, yet we cannot ignore the fact,
that the aforesaid amendment came into force on 1.4.2000,
when the order of the tribunal dated 8.9.1999, in favour of
the assessee, was holding the field, and it is being set
aside today by this order. In this view, the time to make
payment under Section 112(2)(b) has to commence only from

today. The constitutional validity of Section 112 of the
Finance Act was attempted to be raised, but was not
permitted in that appeal, and was left open.


It is in these facts, that soon after passing of
the judgment by this Court on 3.4.2002, the notices issued
and the various issues were carried to logical conclusion,
obviously in the light of the provisions of Section 112,
and it was held, that Modvat credit is not available, and
the assessee has wrongly taken the credit, of the specified
amount in each case, during the period concerned. Then, in
some cases it was found, that the assessee had already
deposited the amount, which was ordered to be appropriated
to the Government account, and imposition of penalty was
denied, while in some cases disallowing credit of the duty
in specified amount, demand of the said amount was
confirmed, and the assessee was directed to deposit the
amount in the appropriate account, as the case may be.


The fact does remain, that the notice initially
issued, obviously under Rule 57-I, were carried to logical
conclusion, after the decision was rendered by this Court
on 3.4.2002, obviously because, during the interregnum
period there were interim stay by this Court.


Then, the orders of the original authority were
challenged by the Department in appeal, and the learned



Appellate Authority allowed the appeal, and held, that the
present appellants are liable to pay interest @ 24% p.a.
from 12.6.2000 till the date of payment, in view of the
provisions of Section 112. It was also found, that the
adjudicating authority issued notice to the assessee,
incorporating the liability of interest with the demand in
the impugned notice.


Appeals against these orders were filed before
the learned Tribunal, and the appeals of one of the
assessee, being M/s. Maharaja Shree Umaid Mills Ltd.
(Appeal No. E/45-48/2003/NB/C and Appeal No.
E/263/2003/NB/C did come to be decided by the learned
Tribunal vide judgment dt. 1.10.2003, holding, that the
extent of credit that has been taken or utilised, does not
require any determination by the Central Excise Officers,
and that, in the instant case no such determination is even
envisaged, as Section 112(2)(b) is very categoric in its
terms, and it says “recovery shall be made of all the
credit which have been taken or utilised but which would
not have been allowed to be taken or utilised, if the
provisions of Sub-section (1) had been in force at all
material times”. Thus, if any credit of duty paid on HSD
had been taken, the same was liable to be recovered, and
the provision contains a clear mandate to the persons, who
have taken such credit, to make payment, as well as to the
Departmental authorities to effect recoveries, and that for



making payment also, issuance of a communication, or an
order directing the payment of the credit taken, is not a
pre-condition. This is the judgment reported in 2003 (158)
ELT-734, and is under challenge before us in Appeals Nos.
6/03, 5/03, 4/03 and 3/03. Then, the orders were passed by
the learned Tribunal, following the judgment in Maharaja
Shree Umaid Mills's case, in other matters also.


This is how challenging these orders, all these
appeals filed by the appellants are before us, and have
been admitted on the substantial questions of law as
noticed above.


Arguing the appeals it was contended, that the
interest is recoverable, or is to be recovered, in addition
to the amount of credit, on such duty, and that, the main
nonobstante clause is attached to sub-section (1) only, and
sub-section (2) is not enacted with any such nonobstante
clause. Obviously, since the recovery is to be made with
interest, till the action for recovery is taken, no
liability for interest can be levied. Then, referring to
provisions of Section 11A, and Rule 57-I, it was contended,
that before effecting any recovery, notice is required to
be served to show cause as to why such credit should not be
disallowed, and where the credit has already been utilised,
the amount to be not utilised by him, and then,
determination of amount of which credit is disallowed, is



to be made, whereupon assessee is to make payment of the
amount equivalent to the credit disallowed, and the payment
of such amount determined, is to be made within three
months from the date of demand notice, and in addition to
the amount so determined, interest, at such rate, as may be
fixed by the Central Board of Excise and Customs under
Section 11AA of the Act, from the date immediately after
the expiry of the said period of three months till the date
of payment, is also payable, and that, in all the present
cases, such notice to show cause had already been served
upon them, at a point of time when the provisions of
Section 112 were not on the Statute Book, but then, those
notices have to be carried to their logical conclusion, and
determination is to be made, demand notice is to be issued,
payment can be made within the permissible time period
thereafter, and the liability of interest arises only from
the date after expiry of such permissible period of time.


Referring to the judgment of original authority,
in Maharaja Shree Umed Mills's case, it was contended, that
in those cases amount was deposited in October, 2000, but
the amount could not be appropriated before the
adjudication, and it was by the order of the original
authority only, that amount has been ordered to be
appropriated in Government account. It is also contended,
that the Act, or the Rules, does not contain any provision
for assessee's entitlement to interest, in case, on



adjudication it is found, that any excess amount has been
paid by the assessee, obviously therefore, and as a
necessary corollary, no liability of interest could be
attracted against the assessee also, before adjudication.


Then, the next submission made was, that a bare
reading of provisions of Section 112, even as they are,
obviously because by the judgment dt. 3.4.2002 it has been
held to be intra-vires, and may be that the judgment dt.
3.4.2002 is already under appeal before Hon'ble the Supreme
Court, and therefore, taking the provisions of Section 112
on the face value, even notwithstanding the incorporation
of nonobstante clause, it does not even contemplate absence
of any adjudication, much less does it even purport, to do
away with the requirement of adjudication. Reliance in this
regard was placed on two judgments of the Tribunal, in the
cases of Poddar Pigments Ltd. Vs. Commissioner of Central
Excise, Jaipur reported in 2003(155) E.L.T. 484, and L.M.L.
Ltd. Vs. Commissioner of Central Excise reported in 2003


(162) E.L.T. -718. It was then submitted, that the
validation Act, being Section 112, covers only the
specified period, from 16.3.1995 upto the period ending
with the day the Finance Act 2000 received the assent of
the President, and the adjudication is necessary, also
because, there may be circumstances, like, the assessee may
be company which may have gone in liquidation, and assets
may have been taken over by the Official Liquidator after

the secured creditors may have realised their dues by
remaining outside the liquidation, and then the question
may arise about the priority of the charge of the
Government revenue, even qua the secured creditors,
obviously for that purpose, the determination of the
amount, and determination of the priority, has to be
considered and made, and therefore, making of
determination, according to Section 11A, or Rule 57I, is a
sine qua non. Then, by reading Section 112 again and again
it was contended, that all that is contemplated by subsection
(1) is, that notwithstanding anything contained in
any rule of the Central Excise Rules, 1944, no credit of
any duty paid on high speed diesel oil at any time during
the relevant period shall be deemed to be admissible.
According to learned counsel, this only means, that this
creates a fiction, that for the purpose of Rule 57-I, it
would mean, that the credit on duty of inputs has been
taken on account of an error, omission or misconception,
and means nothing more. Then, reading sub-section (2) it
was contended, that all that it contemplates is, that any
action taken, or anything done, or purported to have been
taken or done, at any time during the said period under the
Central Excise Act or any rules made thereunder, to deny
the credit of any duty in respect of high speed diesel oil,
and also to disallow such credit to be utilised for payment
of any kind of duty on any excisable goods shall be deemed
to be, and to always have been, for all purposes, as



validly and effectively taken or done, as if the provisions
of sub-section (1) had been in force at all material times,
and accordingly, notwithstanding anything contained in any
judgment, decree or order of any court, tribunal or other
authority, which according to the learned counsel only
means, that if any action has been taken for denying the
credit, that is validated, and if any order is passed
permitting the credit, still the credit will stand denied
obviously, therefore, action is to be taken for recovery of
the amount of credit taken, and again, obviously, by taking
appropriate proceedings, in accordance with law. Then,
submitting on clause (b), which is precise bone of
contention, of sub-section(2), it was contended, that all
that it permits is that, or provides that, recovery shall
be made of all the credit of duty, which have been taken or
utilised, but which would not have been allowed to be taken
or utilised, if the provisions of sub-section (1) had been
in force at all times, and then after putting a comma, it
is provided, that action is to be taken within 30 days from
the date on which the Finance Act receives the assent of
the President, and then it provides, that in the event of
non-payment of such credit of duty within this period, in
addition to the amount of credit of such duty recoverable,
interest at the rate of 24% per annum shall be taken.
Meaning thereby also, that recovery proceedings are to be
initiated, and at best, are to be required to be initiated
within 30 days, which may include issuance and service of



show cause notice, and determination, and in the event of
failure to pay, interest is purported to be payable by the
assessee, but this also does not have the effect of taking
away the requirement of determination. Thus, taken from any
standpoint, it was contended, that the notice of the
authorities below, levying interest, despite the amount
having been deposited, either before determination, or
within the period permitted after determination, cannot
attract the liability of interest at all, and to that
extent, the orders of learned authority below, including
the learned Tribunal, deserve to be set aside.


It was contended, that the learned Tribunal in
Maharaja Ummaid Mills' case was in error, in proceeding
with the assumption, that no determination is envisaged, or
that, the extent of credit that has been taken or utilised,
does not require any determination, and also, for making
payment also, issuance of a communication, or an order,
directing the payment of the credit taken, is not a precondition,
and since the learned authority below, and the
Tribunal, have wrongly ordered the interest to be levied,
the orders are liable to be set aside.


On the other hand, learned counsel for the Revenue
submitted, that notices have been issued, but in the garb
of pendency of the writ petition, the assessees did not
allow the authorities to proceed to make determination. In



that regard various portions of the orders of the
authorities below were read to us, to show, that the
assessees had taken the stand, that there is a stay from
this Court, and therefore, the matter could not be
proceeded with. Thus, since the Department was not allowed
to proceed, the liability of interest cannot be denied or
contested. Then, relying upon the judgment of Hon'ble the
Supreme Court, in Collector of Central Excise Vs. Raghuvar
(India) Ltd. reported in (2000) 5 SCC-299, it was
contended, that action for recovery under Section 57-I, as
it stood prior to 16.10.1988, is not subject to the
limitation period provided under Section 11-A of the
Central Excise Act, and that, even if Section 11A is taken
to be containing provisions of general nature, the
provisions of Modvat Scheme are special ones, and the
latter would therefore govern the scheme. Learned counsel
means, that in the present case, the provisions of Rule 57I,
being a special provision regarding Modvat Scheme, the
general provisions of Central Excise Act, contained in
Section 11A, need not be gone into. Then, it was contended
that from the reading of provisions of Section 112(2)(b),
and comprehending the matter under the scheme of things, it
is clear, that the contemplated adjudication has to be only
qua making arithmetical calculation, but then per force the
provisions of Section 112(2)(b), the liability of interest
would start from the beginning, i.e. on expiry of 30 days
from the date of receipt of assent of the President to the



Finance Act 2000. It was also contended, that under the
scheme of things, by virtue of Section 112, availability of
Modvat credit stood completely denied, notwithstanding any
judgment or order of any court or tribunal, or any
provision in the Rules, and where such credit has been
availed, it was directed to be recovered, and at the same
time, it is provided, that in the event of non-payment of
such credit of duty, within the said period of 30 days, in
addition to the amount of credit of such duty recoverable,
interest at the rate of 24% per annum shall be payable,
from the date immediately after the expiry of the said
period of 30 days, till the date of payment. Thus, since
the Modvat credit availed by the assessee is not in
controversy, may be that the Department was to recover, but
then, in order to avoid liability of interest, the payment
was required to be made by the assessee within a period of
30 days of the Finance Act, 2000 receiving the assent of
the President, otherwise liability of interest is
attracted, from the expiry of said 30 days.


In rejoinder, learned counsels for the petitioners
submitted, that the more important question is, as to
whether in the circumstances of the case, Section 112 at
all applies, inasmuch as the present are not the cases
where either any action has been taken to deny the credit
on any duty, nor there is any judgment or decree rendered
by any court or tribunal, denying, or permitting, such



credit, which may be required to be validated or
invalidated by Section 112, rather notices have been issued
under Rule 57-I, and until and unless determination was
made, consequent upon those notices, after hearing the
assessees, it could not be said, that any amount had
accrued, and since Section 112(2)(b) contemplates an
additional liability of interest, in addition to the amount
of credit of such duty recoverable, until and unless that
amount is determined, no liability of interest can be
attracted. Then, it was also contended that for the
present purposes, the nonobstante clause is only qua the
Rules, and since no benefit was ever drawn, or claimed to
be drawn, by the appellant assessee, and therefore, the
provisions of Section 112(2)(b) also does not apply. It was
also submitted, that during pendency of the writ petitions,
the Department never moved for vacating stay, or for
expediting hearing, and could have very well adjudicated,
consequent upon the notice. It was also contended, that
Section 112(2)(b) is not in the nature of any levy, or
impose liability, rather is in the nature of concession for
the assessee, who has been allowed or disallowed the
credit, and thus the demand of interest is bad.


Learned counsel for the appellants invited our
attention to certain provisions of Central Excise Rules,
Central Excise Act, so also other fiscal statutes, to show,
that where the liability of interest was intended to be



attracted, from any date anterior to the date of
determination of the amount, specific provision in that
regard has been made, and circumstances for attracting such
retrospective liability has been provided, while where such
retrospective liability is not contemplated, the provision
has been made for payment within the specified time of the
raising of demand, and then liability of interest is
attracted, and from this, it was contended, that even from
a collective reading of Rule 57I and Section 112(2)(b), it
is clear, that the liability of interest is not attracted
from any retrospective date. It is maintained rather
reiterated, that it is only sub-section (1) which is
couched with nonobstante clause, while sub-section (2) is
not so couched, with the result, that Rule 57-I does have
its full play.


We have considered the submissions, and have gone
through the records, and various provisions of law.


Before starting with the discussion, we may
gainfully quote the provisions of Rule 57-I, which reads as
under:


“57-I. Recovery of credit wrongly availed of or
utilised in an irregular manner;-(1)(i) Where
credit of duty paid on inputs has been taken on
account of an error, omission or mis-construction,
on the part of an officer or a manufacturer, or an
assessee, the proper officer may, within six
months from the date of filing the return as



required to be submitted in terms of sub-rule (8)
of Rule 57G, and where no such return as aforesaid
is filed, within six months from the last date on
which such return is to be filed under the said
rule, serve notice on the manufacturer or the
assessee who has taken such credit requiring him
to show cause why he should not be disallowed such
credit and where the credit has already been
utilised, why the amount equivalent to such credit
should not be recovered from him.


(ii) Where a manufacturer has taken the credit by
reason of fraud, willful mis-statement, collusion
or suppression of facts, or contravention of any
of the provisions of the Act or the rules made
thereunder with intent to evade payment of duty,
the provisions of clause (i) shall have effect as
if for the words 'six months', the words 'five
years' were substituted.
(iii) The proper officer, after considering the
representation, if any, made by the manufacturer
or the assessee on whom notice is served under
clause (i), shall determine the amount of such
credit to be disallowed (not being in excess of
the amount specified in the show cause notice) and
thereupon such manufacturer or assessee shall pay
the amount equivalent to the credit disallowed, if
the credit has been utilised, or shall not utilise
the credit thus disallowed.
Explanation-Where the service of the notice is
stayed by an order of a court of law, the period
of such stay shall be excluded from computing the
aforesaid period of six months or five years, as
the case may be.


(2) If any inputs in respect of which credit has
been taken are not fully accounted for as having
been disposed off in the manner specified in this
section, the manufacturer shall, upon a written
demand being made by the [Assistant Commissioner
of Central Excise], pay the duty leviable on such
inputs within three months from the date of
receipt of the notice of demand.
(3) Where a manufacturer or an assessee fails to

pay the amount determined under sub-rule (1) or
sub-rule (2) within three months from the date of
receipt of demand notice, he shall pay, in
addition to the amount so determined, interest at
such rate, as may be fixed, by the Central Board
of Excise and Customs under Section 11AA of the
Act, from the date immediately after the expiry of
the said period of three months till the date of
payment.


(4) Where the credit of duty paid on inputs has
been taken wrongly by reason of fraud, wilful misstatement,
collusion or suppression of facts, or
contravention of any of the provisions of the Act,
or the rules made thereunder with intent to evade
payment of duty, the person who is liable to pay
the amount equivalent to the credit disallowed as
determined under clause (iii) of sub-rule (1)
shall also be liable to pay a penalty equal to the
credit so disallowed.
Explanation I-Where the credit disallowed is
reduced by the Commissioner of Central Excise
(Appeals), the Appellate Tribunal or, as the case
may be, a court of law, the penalty shall be
payable on such reduced amount of credit
disallowed.


Explanation II-Where the credit disallowed is
increased or further increased by the Commissioner
of Central Excise (Appeals), the Appellate
Tribunal or, as the case may be, a court of law,
the penalty shall be payable on such increased or
further increased amount of credit disallowed.


(5) Notwithstanding anything contained in clause
(iii) of sub-rule (1) or sub-rule (3) where the
credit of duty paid on inputs has been taken
wrongly on account of fraud, willful misstatement,
collusion, or suppression of facts, or
contravention of any of the provisions of the Act
or the rules made thereunder with intent to evade
payment of duty, the person who is liable to pay
the amount equivalent to the credit disallowed, as
determined under clause (iii) of sub-rule (1),

shall also be liable to pay interest at such rate
as may be fixed by the Board under Section 11AA of
the Act from the first day of the month succeeding
the month in which the credit was wrongly taken,
till the date of payment of such amount.


Explanation I-For the removal of doubts, it is
hereby declared that the provisions of this sub-
rule shall not apply to cases where the credit
disallowed became payable before the 23rd day of
July, 1996.


Explanation II-Where the credit disallowed is
reduced by the Commissioner of Central Excise
(Appeals), the Appellate Tribunal or, as the case
may be, a court of law, the interest shall be
payable on such reduced amount of credit
disallowed.


Explanation III-Where the credit disallowed is
increased, or further increased, by the
Commissioner of Central Excise (Appeals), the
Appellate Tribunal or, as the case may be, a court
of law, the interest shall be payable on such
increased, or further increased, amount of credit
disallowed.”


We need not go into the provisions of Section 11A,


because the scheme of Modvat is covered by the Rules


comprising of Modvat Scheme, these provisions lay down


complete mechanism and procedure, relevant for the present


purposes.


We may at this place again revert to the judgment


of Hon'ble the Supreme Court, in Associated Cement


Companies Ltd.'s case, passed on the review petition. What



we find therein is, that in the original order dt.
28.11.2002, which was passed after commencement of the
Finance Act of 2000, the Modvat credit was held to be
available, and then, when attention was invited to Section
112 of the Finance Act, it was held, that credit is not
available, and then in para-5, it has been held as under:


“5. Though the assessee is not entitled to the
benefit as aforesaid, yet we cannot ignore the
fact that the aforesaid amendment came into force
on 1st April, 2000 when the order of the tribunal
dated 8th September, 1999, in favour of the
assessee was holding the field and it is being set
aside today by this order. In this view, the time
to make payment under Section 112(2)(b) has to
commence only from today..”


We seek sufficient guidance from this judgment,
inasmuch as at least till rendering of this judgment by
this court on 3.4.2002, the present assessees/appellants
were having judgment of the Tribunal in India Cement's
case, and Jindal Polymers's case, and the judgment of the
Tribunal in Associated Cement Companies Ltd.'s case as well
in their favour, and as such the appellant can be said to
have stood well advised in challenging the contemplated
action of the Department, by filing litigations.


It always rests in the realm of uncertainty as to
whether the stand taken by the person approaching the Court
would be accepted by the court, or not, but the fact does
remain, that the above circumstances do show, that it



cannot be said, that the assessees had simply initiated
litigation before this Court to only stall the action of
the Department, rather they earnestly and bonafidely
believed, that they are entitled to avail the credit. It
appears, that finding prima facie force in the stand of the
assessee, this Court granted interim orders. It is also
significant to note, that it was during pendency of those
writ petitions, that probably in view of the judgments
rendered by the learned Tribunals in different cases, that
the Finance Act, 2000 was enacted, incorporating Section
112, to validate the denial of credit, but then, the
constitutional validity of that section was challenged
before this Court by making appropriate amendment, with
appropriate leave of the Court, and thus the matter did
remain pending before this Court, obviously therefore, till
the constitutional validity of the legislation was upheld
by this Court, no fault can be found with the assessees, in
not paying the amount of credit availed by them. May be, in
view of good sense prevailing on the authorities of the
Department, or may be rightly respecting the interim orders
of this Court passed in different writ petitions, the
authorities did not proceed with the making adjudication of
the demand, consequent upon the notice issued under Rule
57I, but then the fact does remain, that the notices were
kept alive, and it was only after the judgment was rendered
by this Court on 3.4.2002, that the proceedings were
proceeded ahead, and orders of adjudication were made.



Thus, this does show that even the respondents within
themselves were of the view, all through, that for raising
a demand under Section 257-I is a sine qua non.


We may examine the matter from other stand point
also viz. that if that were not so, and if the things were
as are sought to be contended before us, and as held by the
learned Tribunal, that the extent of credit question more
or less does not require adjudication by the central excise
officers, or that no determination is even envisaged under
Section 112(2)(b), or that for making payment, even
issuance of communication or an order directing the payment
of the credit taken is not a pre-condition, then at least
the Department would have given up the notice originally
issued under Rule 57-I, and would have straightway
addressed communication to the assessees, at least
immediately after the judgment was rendered by this Court
on 3.4.2002, calling them upon to make payment of the
credit availed, immediately, and then probably might have
laid claim for interest after the expiry of period of 30
days from the date on which the Finance Act, 2000 received
assent of the President, but as noticed above, this is not
the fact situation, and therefore, we find, that the
learned Tribunal was labouring under basic misconception
even from the standpoint, what the Department itself was
considering.



Likewise, with the enactment of Finance Act, 2000
itself, the respondents could very well have straightway
issued demand notice to the assessees, calling them upon to
make payment of the amount of credit availed by them
immediately, or even within a period of 30 days from the
date. In which event the liability of interest could have
accrued, but admittedly that has also not been done.


Then, apart from the Department's own feeling, or
contemplation, or considerations, in our view also, even a
reading of the provisions of Section 112 does show, that
according to sub-section (1), by nonobstante clause, it
only provides for disallowance of credit. Then, sub-section


(2) only validates the action taken to deny the credit, and
invalidates any action taken or order passed allowing the
credit, and then clause (b) of sub-section (2) only directs
that recovery shall be made of all the credit of duty, and
significantly, this clause, in any case, does not proceed
with any nonobstante clause like “notwithstanding anything
contained in the Central Excise Act, or the Central Excise
Rules, recovery shall be made of all the credit of duty,
which have been taken or utilised, but which would not have
been allowed to be taken or utilised, if the provisions of
sub-section (1) had been in force at all material times”.
If that were the language of clause (b), probably it could
be canvassed, that in view of the nonobstante clause even
the requirement of Rule 57-I, or for that matter even of

Section 11A are not attracted.


Then, even if the two provisions being Section 112
(2)(b) and Rule 57-I are read together, we do not find even
any conflict to be there in between the two provisions, to
accept the contention of the Revenue, that there being a
conflict, the provisions of Finance Act, being basic
statute, and provisions of Rule 57-I being of subordinate
legislation, the provisions of Section 112 would prevail.
In our view, Section 112(2)(b) only permits that recovery
shall be made. Then, it does neither lay down any mechanism
for effecting recovery, nor does it eliminate the invoking
the mechanism existing under the Rules for effecting
recovery. Obviously therefore, the two provisions have to
be read together, and to be construed harmoniously, and the
obvious result would be, that the recovery is to be
effected in accordance with the provisions of the Rules.


If the recovery is to be so made in accordance
with the Rules, being Rule 57-I, the liability of interest
starts from the expiry of specified period after the demand
notice is served. In this regard, may be, that there is
some conflict between the provisions of Section 112(2)(b)
and Rule 57-I, but then, for that purpose, we may take the
provisions of Section 112(2)(b) to provide a period of 30
days instead of 90 days, as provided in Rule 57-I, but
then, starting point of computation of interest liability,



in our view, can possibly not be from the date as held by
the learned authorities below. In that regard, we stand
sufficiently guided from the judgment of Hon'ble the
Supreme Court in Associated Cement Companies Ltd.'s case,
wherein after considering the provisions of Section 112(2)
(b), Hon'ble the Supreme Court held, that till that date
the assessee was having in his favour the order which was
holding the field, and the liability of interest is being
attracted after the order was set aside, and therefore
held, that period of 30 days time to make payment under
Section 112(2)(b) is to commence from today.


In our view, respecting the letter and spirit of
judgment of Hon'ble the Supreme Court, more so in spirit of
Article 141, the earliest point of time from which the time
for making payment under Section 112(2)(b) can be said to
commence is, only from the date the adjudication was made
by the order passed in original authority issuing notice.
And therefore, we are of the view, that if the payment is
not made within a period of 30 days from the date of the
order in original, the liability of payment of interest
under Section 112(2)(b) would arise from the date of expiry
of 30 days from the date of order in original, and
liability cannot be attracted from any anterior point of
time.


It is also significant to note, that the order of



the original authority is dated 29.4.2002, by order dt.
19.2.2003 the Commissioner had exercised his powers under
Section 35E(2), and had directed the Assistant Commissioner
to file appeals before the Commissioner for challenging the
order in original, and lay claim for interest. It is during
this interregnum period, that as noticed above, the appeal
filed by the commissioner in Associated Cement's case was
dismissed by Hon'ble the Supreme Court on 28.11.2002,
upholding entitlement to MODVAT credit, and against that
order review petition was filed in the year 2003, which was
allowed on 8.12.2004. This does indicate, that till passing
of the order dt. 28.11.2002, or in any case till passing of
the judgment by this Court dt. 3.4.2002, the Department was
also not of the view, that these consequences have to flow,
attracting leviability of interest, to commence since the
expiry of 30 days from the date of Finance Act, 2000
receiving assent of the President. It is an afterthought
stage, that on a second thought, the controversy has been
triggered off. Though this may not be a sole or even
material ground for negativing the claim of interest by the
revenue, however this is being mentioned, only as a fact
throwing some light on the fact situation.


Much was sought to be argued on the aspect of
provisions of Section 112(2)(b) being a colourable exercise
of power on the part of the Department, and having been
enacted with a view to penalise the appellants, who had



availed their fundamental right of constitutional remedies,
by approaching this Court. But then, in our view, we are
not inclined to entertain the submission at this stage,
because vide judgment dt. 3.4.2002 the enactment has been
found to be intra-vires. May be that in that judgment this
specific aspect of Section 112(2)(b) may not have been
canvassed, but then, the fact remains, that the legislation
has been found to be intra-vires, and the fact also does
remain, that the judgment dt. 3.4.2002 is already subject
matter of appeal before Hon'ble the Supreme Court.
Therefore, it is always open to the appellants to raise
these contentions before Hon'ble the Supreme Court, if they
so stand advised, and if the Hon'ble Supreme Court so
permits to the appellants.


In our view, in view of the above discussion, the
question as framed is required to be answered in the
manner, that the learned Tribunal was not right in coming
to the conclusion, that under Section 112(2)(b) of the
Finance Act, interest can be levied, even where there is no
adjudication of the show cause notices, which were pending
decision, at the time of commencement of the aforesaid
provisions, rather liability of interest can be attracted
to commence, from expiry of 30 days from the date of making
of determination.


In view of the above, the other question about the



liability of interest uptill 25.10.2000, or 28.10.2000 need
not be gone into by us.


The appeals are accordingly allowed in the manner
that no liability of interest will be attracted on the
amount of Modvat credit availed, before expiry of 30 days


from the date of determination, made by the order in
original, passed pursuant to the notice given by the
authorities concerned, under Rule 57-I.

( DEO NARAYAN THANVI ),J. ( N P GUPTA ),J.
/sushil/

Commercial Taxes Officer versus Mirbahadur

CR (ST) 186/07 -CTO, Nimbahera Vs. Shri Mirbahadur Judgment dt.5.1.09

CR (ST) 186/07 -CTO, Nimbahera Vs. Shri Mirbahadur Judgment dt.5.1.09

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
JUDGMENT
CTO, Nimbahera Vs. Shri Mirbahadur


S.B. CIVIL ENTRY-TAX REVISION NO.186/2007
Date of Order : 5th January, 2009
PRESENT
HON'BLE DR. JUSTICE VINEET KOTHARI

Mr. V.K. Mathur with Mr. Rishab Sancheti for the petitioner.
Mr. Sanjeev Johari for the respondents.

REPORTABLE
BY THE COURT:


1. This revision petition filed by the Revenue is directed
against the order of the Tax Board dated 12th October, 2006 whereby
the Tax Board rejected the revenue's appeal, upholding the order of
the Dy. Commissioner (Appeals) in favour of the respondent assessee
that the respondent assessee was not liable to pay the entry tax on the
purchase and import of motor vehicles viz. chassis of a truck under
the provisions of Rajasthan Tax on Entry of Motor Vehicles into
Local Areas Act, 1988 (hereinafter referred to as 'Act of 1988).
2. The Tax Board held that the respondent assessee was a
'casual trader' and, therefore, the limitation for passing assessment
order against him was only 2 years as prescribed under Section 30(5)
of the Rajastan Sales Tax Act, 1994, the provisions of which were
mutatis mutandis applied to the said Act of 1988.

CR (ST) 186/07 -CTO, Nimbahera Vs. Shri Mirbahadur Judgment dt.5.1.09


2/6


3. Learned counsel for the Revenue urged that there was no
basis or justification with the Tax Board to hold the respondent
assessee as 'casual trader' though he did not fall within the definition
of 'casual trader' as defined in Section 2(9) of the RST Act, 1994 as
the transaction of purchase of motor vehicle in question was for
personal use and not in the nature of business which was sine qua non
for holding the respondent assessee to be a 'casual trader'. He further
submitted that the question of applying the limitation of 2 years for
passing assessment order could not, therefore, apply to the present
facts of the case and since admittedly prescribed form No.ET-1
prescribed under Rule 4 of the 1992 Rules was not furnished by the
respondent assessee, therefore, the respondent assessee also failed to
establish before the authorities below that the said motor vehicle was
purchased by him for personal use. He, therefore, submits that the
imposition of entry tax along with the interest and penalty on the
respondent assessee was justified and the appellate authorities erred
in setting aside the same.
4. Learned counsel for the respondent assessee submits that
though form No.ET-1 was not furnished by the respondent assessee
but since assessee was a 'casual trader' therefore, the limitation of 2
years applied in the present case and the Tax Board was justified in
holding the assessment by the learned CTO to be barred by limitation.

CR (ST) 186/07 -CTO, Nimbahera Vs. Shri Mirbahadur Judgment dt.5.1.09


3/6


5. I have heard learned counsels and perused the impugned
orders.
6. The definition of the “casual trader” as given in Section 2
(9) of the 1954 Act is reproduced herein below for ready reference:“
2(9) “Casual trader” means means a person
who has, whether as principal agent or in any
other capacity, occasional transactions of a
business nature involving buying, selling,
supplying or distributing of such goods as may
be specified by the State Government by issuing
a notification, whether for cash or deferred
payment, or for commission or remuneration or
other valuable consideration;”

7. Section 31 deals with the assessment in the case of
casual traders also provides that if a casual trader is registered under
the Act, he shall be assessed like any other registered dealer,
however, if he is not registered under the Act then an obligation is
cast upon such casual trader to make a report of the transaction in
question to the concerned assessing authority having jurisdiction and
upon such report, the assessment has to be made by the concerned
assessing authority. In such circumstances only, the period of
limitation of 2 years prescribed under sub-section (5) applies
otherwise Section 30 of the Act providing for escaped assessment

CR (ST) 186/07 -CTO, Nimbahera Vs. Shri Mirbahadur Judgment dt.5.1.09


4/6


which provides for a limitation of 5 years deals with the escaped
assessment which includes the case of a dealer required to be
registered, but not registered besides assessment of escaped turnover.

8. After hearing learned counsels, this Court is of the
opinion that there was no basis available with the Tax Board to treat
the respondent assessee as a 'casual trader' of the motor vehicle in
question. It was a single transaction of purchase of motor vehicle not
in the nature of business at all. The very definition of 'casual trader'
envisages 'occasional transactions of a business nature' involving
buying and selling of the goods. Therefore, the plurality of the
transactions is a must for treating anybody as a casual trader.
Admittedly in the present case, it was a single transaction and,
therefore, no question of treating the respondent assessee a 'casual
trader' could arise. Therefore, the question of applying the limitation
under Section 31(5) of the Act which deals with the assessment in
case of 'casual trader' does not arise. Since the respondent assessee
admittedly did not furnish the form No.ET-1 required to establish the
case of personal user by the respondent assessee, therefore, the
question of any exemption from levy of entry tax also could not arise
in the present case. The learned assessing authority was, therefore,
justified in framing the assessment in question on 5.6.2002 after
giving a notice in this regard dated 13.2.2002 to the respondent
assessee. The said assessment order produced as Annex.1 in the said

CR (ST) 186/07 -CTO, Nimbahera Vs. Shri Mirbahadur Judgment dt.5.1.09


5/6


revision petition clearly stipulates that the respondent assessee had
neither got issued the form No.ET-1 nor furnished any such form to
the Assessing Authority. This Court is at loss to understand how the
Tax Board could treat the respondent assessee as a 'casual trader' just
for askance without any evidence being there in this regard and hold
the assessment to be time barred. The impugned order of Tax Board,
therefore, cannot be sustained.

9. As far as rate of tax is concerned, it appears that since
the assessee did not appear before the assessing authority, he applied
the rate applicable on the date of passing of the assessment order on
5.6.2002 whereas the date of purchase of the vehicle in question was
16th September, 1999 which as per the notification dated 26.3.1999
(serial No.1216) was under entry 76 only 4% applicable to all type of
motor vehicles. Therefore, to this extent, the assessment order should
stand modified.
10. Accordingly, this revision petition is allowed and setting
aside the order of the learned Dy. Commissioner (Appeals) as well as
Tax Board, the assessment order is restored subject to rate of tax
being corrected from 12% to 4% as per notification dated 26.3.1999.
The learned CTO will be at liberty to pass fresh order accordingly
within a period of 3 months from today. The respondent assessee
shall appear before the assessing authority in the first instance in this
regard on 10th February, 2009 and thereafter the learned assessing
authority may pass fresh orders in accordance with law s to levy of

CR (ST) 186/07 -CTO, Nimbahera Vs. Shri Mirbahadur Judgment dt.5.1.09 CR (ST) 186/07 -CTO, Nimbahera Vs. Shri Mirbahadur Judgment dt.5.1.09

entry tax @ 4% interest and penalty thereon. No order as to costs.

[ DR. VINEET KOTHARI ], J.

item No.41
babulal/