MUMAL MARBLES LTD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THESE three special appeals are directed against the judgment of the learned single Judge relegating the petitioner to alternate remedy under the Rajasthan Sales Tax Act. The petitioner-company is carrying on the business of manufacturing and selling of marble slabs and tiles. It was granted benefit of deferment of tax under the Deferment Scheme of 1989 with effect from November 17, 1992. The State Government under the notification dated December 1, 1986 permitted shifting of point of tax. The relevant notification is extracted as follows : " S. No. 647 : F-5 (118) FD/gr. IV/71, dated December 1, 1986. S. O. 131.- In pursuance of rule 15 of the Rajasthan Sales Tax Rules, 1965, and in supersession of Finance Department Notification No. F. 5 (40)FDRT/63-2, dated March 23, 1963 (S. No. 53), as amended from time to time, the State Government hereby directs that with immediate effect the tax payable under section 5 of the Act on the sale of goods manufactured in Rajasthan by any manufacturer holding a certificate of registration under the Act shall be at the following points, namely : (a) When sale is made by such manufacturer to - (1) an unregistered dealer, (2) a consumer, (3) a registered dealer for purposes other than sale within the State or sale in the course of inter-State trade or commerce, or (4) a registered dealer who is entitled to claim exemption under sub-section (2) of section 4 of the Act on the sale of such goods within the State, at the point of sale by the manufacturer himself; and (b) When sale is made by such manufacturer to a registered dealer for purposes of sale within the State, whether or not to a department of the State or Central Government, on which tax under the Act either at full rate or otherwise or at the rate according to section 5c, 5cc or 5cccc of the Act is paid, or sale in the course of inter-State trade or commerce on which tax under the Central Sales Tax Act, 1956 (Central Act 74 of 1956) is paid, at the point of sale by such registered dealer on the condition that he undertakes to pay such tax and a declaration, which shall be furnished to the assessing authority, to that effect in form S. T. 17 prescribed under the rules is obtained by such manufacturer from such registered dealer. "

(2.) THE State Government by another notification dated 20th November, 1991 amended the said notification by adding the Explanation to the effect that a dealer who has been granted exemption from tax or deferment of tax under the incentive/deferment scheme shall not be entitled to shift the liability to pay the tax under the said notification. THE relevant notification is extracted as follows :-

(3.) A reading of the notifications dated November 20, 1991 and March 27, 1995 extracted as above clearly shows that the Explanation inserted with effect from November 20, 1991 was deleted vide notification dated March 27, 1995. The notification dated November 20, 1991 has not been saved by any saving clause. Thus, on the date of reassessment, i. e. , February 28, 1998 the notification dated November 20, 1991 was not in existence. No action under a provision can be taken after the provision has been deleted unless the said provision has been saved by a specific provision to that effect. The apex Court in Kolhapur Canesugar Works Ltd. v. Union of India reported in JT 2000 (1) SC 453 held that where there is no saving, then proceedings initiated under the old rule becomes non est. The decision of apex Court is based on a decision in Rayala Corporation (P) Ltd. v. Director of Enforcement, New Delhi reported in AIR 1970 SC 494.