J.K.MARBLES Vs. STATE LEVEL COMMITTEE

JUDGEMENT

(1.) CHALLENGING the order passed by the appellate authority refusing to grant exemption in the matter of payment of tax vide annexure P16 dated September 22, 1995, the petitioner has filed this petition.

(2.) THE petitioner claims to be a small -scale industry engaged in cutting and polishing of stones. The industrial unit of the petitioner is situated in the District of Satna and the competent authorities have declared the petitioner's unit to be a small -scale industry and the petitioner has obtained registration in this regard vide annexure P1, from the Industries Department. The petitioner is also holding a registration certificate under the Madhya Pradesh General Sales Tax Act, 1958 and the Central Sales Tax Act, 1956. According to the petitioner, the petitioner started production in the industrial unit with effect from February 13, 1989. Section 12 of the Madhya Pradesh General Sales Tax Act, 1958 empowers the State Government to grant exemption to dealers of goods from payment of tax or to grant benefit of deferment in payment of tax. In pursuance to the aforesaid power vested, the State Government has issued a notification on October 23, 1981, as contained in annexure P4 and according to this notification, certain exemptions are to be granted to industries. The petitioner claims to be entitled to grant of exemption from payment of tax under this notification of 1981. Another notification was issued by the State Government granting exemption again vide annexure P5 on October 16, 1986. In this notification (hereinafter referred to as, "the 1986 Scheme") also similar provision for granting exemption, as was available in the earlier notification of 1981, was provided for. It is the case of the petitioner that after he had started production on February 13, 1989, petitioner submitted an application to the General Manager, District Industrial Centre, Satna, seeking exemption under the notification of 1981 (hereinafter referred to as, "the 1981 Scheme"). However, as the application was not in the proper pro forma as prescribed in the notification, it is stated that the application was returned back and the petitioner again submitted application on December 13, 1989, claiming exemption under the 1981 Scheme. According to the petitioner, subsequent thereof also the petitioner filed series of applications on March 14, 1991 and June 12, 1991 and other dates seeking exemption under the 1981 Scheme, copies of the applications are annexures P7, P8 and P9, respectively. Vide communication (annexure P9A) dated July 5, 1989, certain defects were pointed out and the petitioner rectified these defects. Thereafter, matter was referred to the District Level Committee and according to the petitioner, the District Level Committee without considering the fact that the petitioner was seeking exemption under the 1981 Scheme rejected the claim on the ground that the same cannot be considered. The petitioner filed application for review and finally it is the case of the petitioner that the matter travelled to the State Level Appellate Committee. Initially the State Level Appellate Committee rejected the application of the petitioner on the ground that the process of cutting and polishing of stones does not involve manufacturing process and, therefore, the petitioner is not entitled to exemption. This resulted in petitioner filing writ petition M.P. No. 910 of 1992 before this court and the said writ petition was allowed and decided vide order dated March 10, 1993 (annexure P12). The petitioner's application was allowed and respondents were directed to consider the claim of the petitioner on merit and decide it in accordance with law.

(3.) IT is pointed out by Shri Samaiya, learned counsel for the petitioner, that once the order was passed by the Division Bench of this court in the writ petition, M.P. No. 910 of 1992, respondents were duty -bound to grant exemption to the petitioner on the basis of 1981 Scheme and in refusing to do so, it is argued that the respondents have committed error. That apart, the second ground urged by Shri Samaiya is that the 1986 Scheme did not supersede the earlier 1981 Scheme. It only granted the benefit with some modification and the option to claim benefit under the 1981 Scheme was protected. It is stated that the limitation of 90 days prescribed in the proviso to clause (12A) of the 1986 Scheme vide amending notification dated March 3, 1989 and this amending clause prescribing the limitation of 90 days is only applicable if an establishment which has opted to get benefit of 1981 Scheme wants to switch over and avail of the facility in the subsequent 1986 Scheme. It is the case of the petitioner that as the petitioner was not seeking change of option from 1981 Scheme to the 1986 Scheme, the respondents have incorrectly applied the circular dated March 3, 1989 and rejected the case. Accordingly Shri Samaiya, learned counsel, submits that the petitioner's application for grant of exemption under the 1981 Scheme is rejected incorrectly applying the limitation of 90 days, which was not applicable. On these grounds he prays for interference. The respondents have refuted the aforesaid and it is stated by them that as the petitioner had commenced production only on February 13, 1989, when the notification dated October 16, 1986 had come into existence and the petitioner had not submitted any application within 90 days, for seeking benefit under the 1981 Scheme, his application is rightly rejected. It is argued by the counsel for the State that once benefit of the 1986 Scheme is extended to the petitioner and he is directed to appear and enter into an agreement, the petitioner cannot now claim the benefit of the 1981 Scheme, and in rejecting the claim of the petitioner seeking this benefit, it is argued by Shri V. P. Nema, for the respondents, they have not committed any error.