LAWS(JHAR)-2012-3-163

TATA STEEL LIMITED Vs. STATE OF JHARKHAND

Decided On March 02, 2012
TATA STEEL LIMITED Appellant
V/S
STATE OF JHARKHAND Respondents

JUDGEMENT

(1.) Background facts leading to present controversy is issuance of a demand by the Deputy Commissioner of Commercial Taxes first in the form of notice against M/s. BOC India Limited; which was challenged by BOC India Ltd. by preferring W.P.(T) No. 4963 of 2005 before this Court but that petition was dismissed on 2.11.2007, holding that M/s. BOC has no locus standi to file writ petition as admittedly tax was payable by TISCO (presently petitioner before us), who is purchaser of oxygen produced by the BOC and using it in its industrial unit for its product. This Court was of the view that since liability will be on TISCO, therefore, the TISCO alone could have challenged the action of the revenue. The order of the Court was challenged by both M/s. BOC as well as present petitioner-TISCO by preferring Civil Appeal No. 1538 of 2009 and Civil Appeal No. 1540 of 2009 respectively. Both these appeals were decided by Hon'ble Supreme Court vide judgment dated 5th March, 2009 and in the said judgment, it has been held that M/s. BOC could have challenged the action of the revenue, however, while considering the issues raised by the parties including by the TISCO Hon'ble Supreme Court was of the view that such evidence may be in possession of TISCO and obviously, because of that reason, the assessing authority in the light of the observations made by the Hon'ble Supreme Court allowed the petitioner, TISCO to participate in the assessment proceedings after remand to it by the Supreme Court, though the original notice and the proceedings were only against M/s. BOC India Limited. The Hon'ble Supreme Court in the said judgment clearly rejected the plea of the writ petitioner to accept the process which has been prescribed in the statute to be taken to be binding for deciding whether the oxygen in question used by the writ petitioner is raw material or not and held that this issue is required to be decided on the basis of the evidence which may be produced and obtained by the department. Because of this obvious reason the assessing officer not only inspected the site of the TISCO but also drawn a report with reference to the report of the procedure wherein the oxygen is consumed. The assessing officer, in assessment proceedings even gave opportunity of hearing to the representative of the TISCO as well as for producing evidence which was duly produced by the writ petitioner. After considering all the evidences on record the assessing officer held that the oxygen is a "refining" or "reducing agent" only and cannot be held raw material. The assessing officer's order dated 1st October, 2011 is sought to be challenged in this writ petition. Learned counsel for the State has raised objection about the maintainability of the writ petition on the ground of the availability of alternative remedy of appeal under Section 45 of the Bihar Finance Act, 1981 as adopted by the State of Jharkhand.

(2.) Learned counsel for the petitioner submitted that the petitioner cannot prefer appeal in view of the fact that appeal under Section 45 of the Act can be preferred only by the dealer and the principle which allows the aggrieved party to prefer appeal cannot be applied in taxing statutes and to the Bihar Finance Act and learned counsel assisting the senior counsel also submitted that if it is held that anybody who is affected by the order passed by the assessing officer can prefer appeal under Section 45 of the Act of 1981 then, every consumer or any person, who ultimately pays the sales tax may prefer appeal under Section 45 of the Act and therefore, the appeal can be preferred only by the dealer obviously, the dealer registered under the Bihar Finance Act of 1981 against order which has been passed and cannot be preferred by any person who is ultimately affected by the order.

(3.) Learned counsel for the petitioner relied upon two judgments of the Hon'ble Supreme Court reported in Chemical v. Union of India, 1996 5 SCC 373 and also in a case of India Explosive Ltd. v. Sales Tax Commissioner U.P.,1978 41 315 and submitted that Hon'ble Supreme Court in both the decisions has considered this aspect of the matter and clearly held that the writ petition is maintainable by a stranger to the proceeding and therefore, the present writ petitioner is maintainable.