SHIV SHANKER INDUSTRIES Vs. STATE OF HARYANA

JUDGEMENT

(1.) This petition seeks quashing of notification dated 13.5.2008 making retrospective amendment from 1.1.2006 to the Schedule to Haryana Value Added Tax Act, 2003 (the Haryana VAT Act) thereby making the goods in question taxable.

(2.) Case set out in the petition is that the petitioner is a dealer registered under the provisions of the Act. It purchased animal feed in the shape of damaged wheat from government agencies during the year 2005-2006. "Animal feed" which by interpretation included "damaged wheat" being covered by entry 4 of Schedule 'B', was tax free. The petitioner having paid the tax under mistake sought refund relying upon judgment of this Court in Garg Cattle Feed Industries v. Food Corporation of India and others, 2009 23 VST 94. Since no decision was being taken on the claim of the petitioner, CWP Nos. 6979 of 2007, 18433 of 2007 and 7222 of 2008 were filed which were disposed of vide orders dated 9.1.2007, 6.12.2007 and 2.5.2008 respectively with directions to take a decision in the matter. In complaiance with the said orders, claim of the petitioner was considered but rejected. According to the petitioner, since the damaged wheat was not earlier taxable, if the same was to be made taxable for the first time, by way of exclusion from "Animal feed", such provision could not be made retrospective. Reliance has been placed on recent judgment of this Court in Goel Brick Industries and others v. M/s Radha Swami Brick Co.,2010 37 PHT 440 which in turn relied upon decisions of the Hon'ble Supreme Court in State of Gujarat v. Ramanlal Keshav Lal Soni, 1984 AIR(SC) 161, Lohia Machines Limited and another v. Union of India and others, 1985 2 SCC 197, Chairman Railway Board and others v. C.R. Rangadhamaih and others, 1997 3 SCT 722and Virender Singh Hooda and others v. State of Haryana and another, 2004 4 SCT 793

(3.) In the reply filed on behalf of the State, the amendment has been defended on the ground that the same was clarificatory. Earlier "damaged wheat" was impliedly excluded from "Animal feed" and now by way of clarification, it was expressly so excluded.