The writ petition stands allowed by HIGH COURT OF MADHYA PRADESH AT INDORE in the case of DEWAS SOYA LIMITED V. COMMISSIONER, COMMERCIAL TAX DEPTT through HON’BLE JUSTICE VIVEK RUSIA
FACTS OF THE CASE
The petitioner is a Private Limited Company incorporated under the Companies Act, 1956. The petitioner is engaged in the business of production and sale by way of export of Soybean in the solvent extraction plant situated at Gram Siya, Durgapur, District Dewas. The annual production capacity of the petitioner Unit is 400 Metric Tons per day and the petitioner unit is a prominent exporter of De-oiled Cakes. The Government of Madhya Pradesh issued notification dated 06.06.1995 to grant exemption to the extent of 250% of capital investment in fixed assets for a period of 11 years to the NRI/100% EOU and exporting units. The petitioner being an Exporting Industrial Unit (EIU) has been issued an Eligible Certificate dated 30.10.2001 availing exemption from payment of Commercial Tax payable under Section 9 and from payment of Purchase Tax Act and payable under section 10 of the Madhya Pradesh Vanijyik Kar Adhiniyam, 1994. The State Government vide notification by way of the amendment kept on extending the applicability of the notification from time to time and the last notification was issued on 30.06.2004 extending the applicability up to 31.03.2005. Vide notification dated 30.03.2001 in the exercise of the power conferred under section 17 of the Adhiniyam, 1994, the State Government has exempted the class of goods specified in column (2) of the Schedule from payment of tax under the said Adhiniyam,1994 to the extent specified in column (3), subject to restrictions and conditions for the period from 01.04.2001 to 31.03.2005. Under Section 10 of the Adhiniyam,1994 a dealer is required to pay purchase tax on purchases of goods under two situations, firstly when purchased from a registered dealer and on such purchase no tax under section 9 is payable by the selling dealer and secondly when purchased from unregistered dealer and goods so purchased is used of consumed in the manufacturing or processing of other goods. It is the case of the petitioner that during validity period of exemption from payment of tax the State Government has amended the provisions of Section 10 of Adhiniyam,1994 w.e.f. 13.12.2004 by inserting section 10-B and simultaneously Section 10 has also undergone amendment. By amending Section 10 the State Government has authorized the department to classify certain goods to be notified separately under the newly inserted section 10- B. The State Government vide notification dated 13.12.2004 has notified Soybean as goods for the purpose of charging tax under section 10-B of the Adhiniyam, 1994 from the date of notification to 31.03.2005. Meaning thereby from the period 13.12.2004 till 31.03.2005, the Soybean has been notified for payment of tax under section 10-B of the Adhiniyam,1994. Respondent No.2 after the above amendment and in pursuant to the impugned notification has issued notice to the petitioner with direction to appear on 20.09.2005 for the assessment of the tax for the first quarterly period from January 2005 to March 2005. The aforesaid notice gave the cause of action to the petitioner to approach before this Court by way of the present petition.
By order dated 01.02.2006 the respondents were permitted to go on with the assessment proceedings but restrained to finalize the same. The aforesaid order has been confirmed on 03.05.2006 restraining the respondent to take coercive action against the petitioner for the recovery of the impugned tax demand, therefore, the assessment proceedings have not been completed but by virtue of the interim order, no recovery has been made by the petitioner. The petitioner has been granted exemption from payment of tax under section 17 of the Adhiniyam, 1994, if Government wanted to levy tax on soyabean then Government could have withdrawn the notification in exercise of power conferred under sub-section (2) of section 17 instead of inserting new charging section which specifically provides that “any notification issued under Section 17(1) may be rescinded before the expiry of the period for which it was to have remained in force and on such rescission such notification shall cease to be in force. A notification rescinding an earlier notification shall have prospective effect. The law laid down by the Apex court the petitioner shall be entitled to avail the notification dated 06.06.1995 for exemption from payment of tax payable under sections 9 and 10 of the Adhiniyam,1994 a certificate of eligibility for availing the facility of exemption of tax under notification dated 06.06.1995, till its validity period i.e., 31.03.2005. Even otherwise the period of notification was upto 31.3.2005 and same has not been continued, therefore only for three months period the petitioner has been subjected to payment of entry tax under the Adhiniyam, 1994. The impugned notices dated 09.09.2005 and 13.09.2005 issued to the petitioner are hereby quashed, and any assessment proceedings taken by virtue of interim order are also quashed.
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JUDGEMENT REVIEWED BY SHREYA NIDHI