AVADHOOT ENGINEERING CO Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Leave to amend the prayer clause is granted.

(2.) The present petition under Article 226 of the Constitution of India has been filed by the petitioner, which is a partnership firm registered under the provisions of the Indian Partnership Act, 1932, praying for the relief to declare that winnowing fan manufactured by the petitioner is an agricultural implement not liable to be charged for sales tax in view of the notification under Section 49(2) of the Gujarat Sales Tax Act, 1969 ("the Act" for short) issued by the State Government, which has come into effect from April 1, 1996. It is further prayed to issue a writ of certiorari or any other appropriate writ to set aside: (1) the order dated August 30, 1996 passed by the Commissioner of Sales Tax under Section 62 of the Act; (2) the judgment and order dated May 4, 2005 passed by the Gujarat Sales Tax Tribunal in Appeal No.15 of 1996 by which order passed by the Commissioner of Sales Tax under Section 62 of the Act is confirmed; and, (3) the judgment and order dated September 29, 2006 passed by the Gujarat Value Added Tax Tribunal in Rectification Application No.17 of 2005 rejecting the rectification application submitted by the petitioner.

(3.) Briefly stated, the facts giving rise to the present petition are that the petitioner-firm is engaged in the business of manufacturing and marketing of a product known as "winnowing fan". According to the petitioner, the winnowing fan is an agricultural implement covered under Entry 11 of Schedule 2A of the Act and is not an agricultural machinery. It is the case of the petitioner that an exemption notification was issued by the State Government in exercise of powers under Section 49(2) of the Act, which came into effect from April 1, 1996 by which sales of agricultural implements have been exempted from the payment of sales tax. According to the petitioner, the winnowing fan manufactured by it would be covered under the said exemption notification and would be inassessable to tax. The petitioner submitted an application for determination of the questions referred to in the said application, under Section 62 of the Act to the Commissioner of Sales Tax. By order dated August 30, 1996, the Commissioner of Sales Tax determined that the winnowing fan sold by the petitioner is an agricultural machinery and since the winnowing fan is an agricultural machinery, the petitioner would not get the benefit of notification issued under subsection (2) of Section 49 of the Act. Feeling aggrieved, the petitioner preferred an appeal under Section 65 of the Act before the Gujarat Sales Tax Tribunal, which was dismissed vide order dated May 4, 2005. The Tribunal recorded the following findings: