Rajes Kumar, J.@mdashThese seven revisions u/s 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 20.07.1997 relating to the assessment years 1982-83, 86-87, 87-88, 88-89, 89-90, 90-91, 91-92, all under the Central Sales Tax Act (hereinafter referred to as "Central Act").
2. Question involved in all the revisions relate to the exemption on the manufactured goods under the Central Sales Tax Act.
3. Brief facts of the case are that the dealer/opposite party (hereinafter referred to as "Dealer") is an institution certified by U.P. Khadi Village and Industries Board engaged in the manufacturing of shoes. In exercise of power u/s 4(b) of U.P. Trade Tax Act goods manufactured by the institution certified by U.P. Khadi Village and Industries Board is not liable to tax under the notification No. ST-II-7037/X-7(23)/83-U.P. Act XV/48-Order-85, dated 31.01.1985. The exemption has not been allowed by the assessing authority. Tribunal, however, allowed the exemption on the turn over of inter-State sales in view of Section 8(2-A) of the Central Act.
4. Heard learned Counsel for the parties.
5. Learned Standing Counsel submitted that the exemption under Notification No. ST-II-7037/X-7(23)/83-U.P. Act XV/48-Order-85, dated 31.01.1985 was conditional exemption and was to bellowed only on fulfilling certain conditions and, therefore, under the aforesaid notification goods were not generally exempted and, therefore, Section 8(2-A) of the Central Act did not apply. He submitted that in the case of Meerut Biri Factory v. Commissioner of Sales Tax, U.P. reported in 1970 UPTC 393 and in the case of The Commissioner of Sales Tax, U.P. v. Ram Saran Jagannath, Cloth ealers Bulandshahr reported in 1971 UPTC 5 notification issued u/s 4(b) has been held as nditional exemption and not a general exemption and Section 8(2-A) of Central Act has been held not applicable. He further submitted that u/s 8(2-A) applies to the goods which is generally exempted and not on fulfilling of certain conditions. In support of his condition, he relied upon the decision of the Apex Court in the case of Commissioner of Sales Tax, Jammu and Kashmir And Ors. v. Pine Chemicals Ltd. and Ors. reported in 96 STC 355 and in the case of Atlas Engineering Works (Pvt.) Ltd., Commissioner of Commercial Taxes and Ors. reported in 120 STC 588.
6. Sri K. Saxena, learned Counsel for the dealer submitted that notification No. ST-II-7037/X-7(23)/83-U.P. Act XV/48-Order-85, dated 31.01.1985 is not applicable to the assessment year 1982-83. He submitted that for assessment year 1982-83 notification No. ST-II-5025/X-6(12)-1979-U.P. Act XV/48-Order-79, dated 30.06.1979 is applicable in which there was no condition for the exemption. He further submitted that under the notification No. ST-II-7037/X-7(23)/83-U.P. Act XV/48-Order-85, dated 31.01.1985 the conditions are relevant for purchases and not for sale. According to him, there was no condition granting exemption on sale. He submitted that for the first time two conditions were imposed for the exemption on sale vide notification No. ST-II-709/ll-9(53)/91-U.P. Act XV-48-Order-97, dated 27.02.1997. He submitted that vide circular dated 23.07.1977 Government has taken a view that the exemption granted on the sale to the institutions certified by U.P. Khadi Village and Industries Board is a general exemption and Section 8(2-A) of Central Act is applicable. He submitted that circular has not been withdrawn during the aforesaid years and is binding upon the revenue authorities and in view of the circular it is not open to the Commissioner of Trade Tax to raise any dispute in this regard in the present case.
7. Having heard learned Counsel for the parties, I have perused the order of Tribunal and the authorities below.
8. It is useful to refer the relevant notifications:
9. Notification No. ST-II-5025/X-6(12)-1979-U.P. Act XV/48-Order-79, dated 30.06.1979 read as follows:
SCHEDULE
In exercise of the powers under Clause (b) of Section 4 of the U.P. Sales Tax Act, 1948 (U.P. Act No. XV of 1948), read with Section 21 of the U.P. General Clauses Act, 1904 (U.P. Act No. 1 of 1904), the Governor is pleased:
(1) to rescind, with effect from July 1, 1979, Government Notification No. ST-2783/X-902(60)-59, dated June 1, 1963, and
(2) to exempt, with effect from the same date, the institutions in Uttar Pradesh certified by the All India Khadi and Village Industries Commission, Bombay or by the Uttar Pradesh Khadi and Village Industries Board, Kanpur, from payment of tax under the said Act on the sale of products of Village Industries mentioned in the Schedule to the Khadi and Village Industries Commission Act, 1956 or the Uttar Pradesh Khadi and Village Industries Board Act, 1960.
10. Notification No. ST-7037/X-7(23)/83-U.P. Act XV/48-Order-85, dated 31.01.1985
In exercise of the powers under Clause (b) of Section 4 of the Uttar Pradesh Sales Tax Act, 1948 (UP Act No. XV of 1948), read with Section 21 of the Uttar Pradesh General Clauses Act, 1904 (UP Act No. 1 of 1904), and in supersession of all previous notifications issued under the aforesaid clause, the Governor is pleased to exempt, with effect from February 1, 1985, the sale or purchase of the goods mentioned in Column 2 of the Schedule hereunder by the persons or the class of persons mentioned therein, from tax under the said Act of 1948, subject to the conditions, if any, specified in Column 3 thereof.
Sl. Description of goods Conditions if any,
No. /persons/class of
persons
1 2 3
1. ...
2 . ...
3. Institutions in UP
certified by the
All India Khadi
and Village Ind-
ustries Commission
or U.P. Khadi
Village & Indust-
ries Board.
(a) on the sale
of products of
village Industr-
ies specified
below; and
(b) on the pur-
chase of any On Condition That
goods conne- The dealer Selling
cted with the Such Gods To The
manufacture Said Institu-
of products tion Furnishes A
of Village certificate
Industries or From The said
Purchases of institution,
products of Duly Counter-
Village signed By The
Industries district
specified Village Indu-
below: stries Officer
Of The Uttar
Pradesh Khadi
& Village
Industries
Board to The
effect that
The goods
Purchases By
It Are Conn-
ected with the
Manufacture Of
Products of The
Aforesaid Vill-
age Industries
or are products
of such Village
Industries.
11. Notification No. TT-2-709/XI-9(53)/9l-U.P. Act-15-48-Order-97, dated 27.02.1997 read as follows:
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12. Section 8(2-A) of the Central Act as it exists at the relevant time read as follows:
8. Rates of tax on sales in the course of inter-State trade or commerce.
(2-A) Notwithstanding anything contained in Sub-section (1A) of Section 6 or Sub-section (1) or Clause (b) of Sub-section (2) of this section, the tax payable under this Act by a dealer on his turnover in so far as the turnover or any part thereof relates to. the sale of any goods, the sale or, as the case may be, the purchase of which is, under the sales tax law of the appropriate State, exempt from tax generally or subject to tax generally at a rate which is lower than four per cent whether called a tax or fee or by any other name, shall be calculated at the lower rate. Explanation--For the purpose of this sub-section a sale or purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of appropriate State if under that law the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods.
13. Perusal of the notifications referred hereinabove shows that the exemption is to the institutions certified by All India Khadi & Village Industries Commission, Mumbai or by U.P. Khadi & Village Industries Board, Kanpur and not with reference to the goods or a class or category of goods. Under the aforesaid notifications goods are not generally exempted from tax under the U.P. Trade Tax Act. The exemption is not a general but a conditional namely, available only to the institutions certified by All India Khadi & Village Industries Commission, Mumbai or by U.P. Khadi & Village Industries Board, Kanpur.
14. Section 8(2-A) of Central Act came up for consideration before the Apex Court in the case of Commissioner of Sales Tax, Jammu And Kashmir and Ors. v. Pine Chemicals Ltd. and Ors. reported in 96 STC 355. The question for consideration was whether under the notification the exemption granted to the industrial unit for a specified period on the manufactured goods could be considered as the goods generally exempted from tax. Apex Court held that the notification providing the exemption to the manufactured product for a specified period to the industrial unit, was not a general exemption to the goods. It has been held that the exemption under the notification was not with reference to the goods or a class or category of goods but with reference to the industrial unit producing them for a particular period. Apex Court relied upon the earlier decision of the Apex Court in the case of Indian Aluminium Cables Ltd. v. State of Haryana reported in 38 STC 108 (SC) wherein Apex Court held that the "general exemption means that the goods should be totally exempt from tax before similar exemption from the levy of Central Sales Tax can become available. Where the exemption from taxation is conferred by conditions or in certain circumstances there is no exemption from tax generally".
15. Thus, in view of the decision of the Apex Court exemption granted under the aforesaid notification to the institution certified by All India Khadi & Village Industries Commission, Mumbai or by UP. Khadi & Village Industries Board, Kanpur can not be said to be general exemption to the goods under the U.P. Trade Tax Act.
16. Now the question for consideration is whether the benefit of exemption of tax under Central Sales Tax Act can be allowed to the dealer in view of the circulars No.
la[;k&fof/k&10&�1�&77&78&1178@eq[;ky;
�fof/k&vuqHkkx�
y[ku�% fnukad % 7 ebZ] 1977
Circular No.
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fnukad 23 tqykbZ] 1987
17. It is settled principal of law that the circulars though contrary to the provisions are binding upon the revenue authorities.
18. In the case of Commissioner of Sales Tax, U.P. v. Indra Industries reported in 2000 UPTC 472, Apex Court held as follows:
A circular by tax authorities is not binding on the courts. It is not binding on the assessee. However, the interpretation that is thereby placed by the taxing authority on the law is binding on that taxing authority. In other words the taxing authority cannot be heard to advance an argument that is contrary to that interpretation.
19. In the case of Paper Products Ltd. v. Collector of Central Excise reported in (1997) 7 SCC 84, Apex Court held as follows:
This question is no more res Integra in view of the various judgments of this Court This Court in a catena of decision has held that the Circulars issued u/s 37-B of the said Act are binding on the Department and the Department cannot be permitted to take a stand contrary to the instructions issued by the Board. These judgments have also held that the position may be different with regard to an assessee who can contest the validity or legality of such instructions but so far as the department is concerned, such right is not available. See Collector of Central Excise v. Usha Martin Industries. In the case of Ranadey Micronutrients v. Collector of Central Excise, this Court held that the whole objective of such circulars is to adopt a uniform practice and to inform the trade as to how a particular product will be treated for the purposes of excise duty. The Court also held that it does not lie in the mouth of the revenue to repudiate a Circular issued by the Board on the basis that it is inconsistent with atatutory provision. Consistency and discipline are, according to this Court, of for greater importance than the winning or losing of Court proceedings. In the case of Collector of Central Excise v. Jayant Dalai (P) Ltd. This Court has held that it is not open to the revenue to advance an argument or even file an appeal against the correctness of the binding nature of the Circulars by the Board. ''Similarly is the view taken by this Court in the case of Collector of Central Excise v. Kores (India) Ltd.
20. Similar view has been taken by the Apex Court in a recent decision in the case of
21. In the case of
22. In view of the above law laid down by the Apex Court institutions certified by All India Khadi and Village Industries Commission, Bombay or by the Uttar Pradesh Khadi and Village Industries Board, Kanpur, notification granting exemption to the institutions can not be said to be general exemption granted to the goods but by the aforesaid two circulars referred hereinabove such exemption have been treated as general exemption granted to the goods u/s 8(2-A) of the Central Act and the goods manufactured by such institutions have been treated exempted from tax under the Central Act. Apex Court held that the circulars are binding upon the revenue authorities though they may becontrary to the statute and it is not open to the revenue authorities to take a different stand. Thus, so long as the circular stand and is not withdrawn revenue authorities can not take a different stand contrary to the circular. It is not the case of the revenue that the circulars have been withdrawn.
23. In this view of the matter, revisions filed by the revenue have no force and the order of the Tribunal granting exemption of the goods manufactured by the institutions u/s 8(2-A) of the Central Act is hereby upheld.
24. In the result, all the revisions fail and are accordingly. dismissed.
