Bombay High Court
M/S Amar Agencies vs The State Of Maharashtra And ... on 5 May, 2017
Bench: S.V. Gangapurwala
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4944 OF 2013
M/s Amar Agencies
Suresh Bhavan, Kirana Chawdi,
Aurangabad
Through its Partner
Mr. Vikas S/o Kantilal Sahuji,
Age: 50 years, Occ.: Business,
R/o : As above. .. Petitioner
Versus
1. State of Maharashtra
Through Secretary
Finance Department,
Madam Cama Road,
Hutatma Rajguru Chowk,
Mantralaya, Mumbai.
2. Commissioner of Sales Tax,
Maharashtra State, Mumbai.
3. Joint Commissioner of Sales Tax,
Aurangabad Division,
Aurangabad.
4. Dy. Commissioner of Sales Tax,
Aurangabad Division, Aurangabad.
5. Asst. Commissioner of Sales Tax, (investigation)
Aurangabad Division, Aurangabad.
6. M/s V.H. Patel & Company,
Ghat Road, Chalisgaon,
Dist. Jalgaon. .. Respondents
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Shri Rameshwar F. Totala, Advocate for the Petitioner.
Shri M. B. Bharaswadkar, A.G.P. for Respondent Nos. 1 to 5.
WITH
WRIT PETITION NO. 8950 OF 2014
M/s Damodar Jagannath Malpani
Through its Partner,
Smt. Lalita W/o Omkarnath Malpani
Age: 71 years, Occ.: Household & business,
Working at Malpani Estate, Kasara Dumala,
Sangamner, Dist.: Ahmednagar. .. Petitioner
Versus
1. The State of Maharashtra
Through Secretary
Finance Department,
Madam Cama Road,
Hutatma Rajguru Chowk,
Mantralaya, Mumbai.
2. The Maharashtra Sales Tax Tribunal,
Mumbai.
3. The Commissioner of Sales Tax,
Maharashtra State, Mumbai.
4. Joint Commissioner of Sales Tax,
Nasik Division, Nasik.
5. Dy. Commissioner of Sales Tax,
Ahmednagar Division, Ahmednagar. .. Respondents
Shri Rameshwar F. Totala, Advocate for the Petitioner.
Shri M. B. Bharaswadkar, A.G.P. for Respondent Nos. 1 to 5.
WITH
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WRIT PETITION NO. 499 OF 2015
M/s Mugdiya Agencies,
Through its Partner,
Mr. Bhagchand Abirchand Mugdiya,
Age: 55 years, Occ.: Business,
R/o 13, Rajkamal Marg,
Cantonment, Aurangabad .. Petitioner
Versus
1. State of Maharashtra
Through Secretary
Finance Department,
Madam Cama Road,
Hutatma Rajguru Chowk,
Mantralaya, Mumbai.
2. Commissioner of Sales Tax,
Maharashtra State, Mumbai.
3. Joint Commissioner of Sales Tax,
Aurangabad Division,
Aurangabad.
4. Dy. Commissioner of Sales Tax,
Aurangabad Division, Aurangabad.
5. Asst. Commissioner of Sales Tax,
(investigation) Aurangabad Division,
Aurangabad. .. Respondents
Shri Rameshwar F. Totala, Advocate for the Petitioner.
Shri M. B. Bharaswadkar, A.G.P. for Respondent Nos. 1 to 5.
WITH
WRIT PETITION NO. 11344 OF 2014
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Mittal Agencies through
its Proprietor Mr. Ashish Suresh Mittal
Age: 31 yrs. Occ.: Business,
R/o Shop No. 42, Ganjgolai,
Latur. .. Petitioner
Versus
1. The State of Maharashtra
Through Secretary
Finance Department,
Madam Cama Road,
Hutatma Rajguru Chowk,
Mantralaya, Mumbai.
2. The Commissioner of Sales Tax,
Maharashtra State, Mumbai.
3. Joint Commissioner of Sales Tax,
Amrawati Division, Amrawati.
4. Dy. Commissioner of Sales Tax,
Latur .. Respondents
Shri Rameshwar F. Totala, Advocate for the Petitioner.
Shri M. B. Bharaswadkar, A.G.P. for Respondent Nos. 1 to 4.
WITH
WRIT PETITION NO. 9468 OF 2013
Mohan Agencies
K-342, New Mondha
Devalgaonraja Ring Road,
Jalna, Tq. Jalna,
Dist. Jalna (MS)
Through its Proprietor
Shri. Rajendra Mohanlal Agrawal
Age: 45 years, Occ.: Business
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R/o As above. .. Petitioner
Versus
1. State of Maharashtra
Through The Principal Secretary
Finance Department,
Madam Cama Road,
Hutatma Rajguru Chowk,
Mantralaya, Mumbai (MS).
2. The Commissioner of Sales Tax,
Maharashtra State,
Vikrikar Bhavan, 8th Floor,
Room No. 831, Mazgaon,
Mumbai -400010.
3. Joint Commissioner of Sales Tax,
Aurangabad Division,
Vikrikar Bhavan,
Opp. SC Railway Station,
Aurangabad- 431 001 (MS)
4. Dy. Commissioner of Sales Tax,
Aurangabad Division,
Vikrikar Bhavan,
Opp. SC Railway Station,
Aurangabad- 431 001 (MS)
5. Assistant Commissioner of Sales Tax,
(Investigation),
Aurangabad Division,
2nd Floor, Vikrikar Bhavan,
Opp. SC Railway Station,
Aurangabad- 431 001 (MS)
6. M/s H.H. Patel & Co.
P.O. Box No. 20, Prabhat Galli,
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Ghat Road, Chalisgaon 424101
Dist. Jalgaon (MS)
7. Park Marketing Co.
G. No. 468/3, Ranjagaon Shiwar
Chalisgaon 424101
Dist. Jalgaon (MS)
8. Park Retail Marketing Pvt. Ltd.
G. No. 468/3, Ranjagaon Shiwar
Chalisgaon 424101
Dist. Jalgaon (MS) .. Respondents
Shri Dwarkadas S. Ladda, Advocate for the Petitioner.
Shri M. B. Bharaswadkar, A.G.P. for Respondent Nos. 1 to 5.
WITH
WRIT PETITION NO. 10103 OF 2013
M/s Kamal Tobacco Stores,
Through its Proprietor,
Mr. Kamalkishore S/o Nalinikant Kasliwal,
Age: 55 years, Occ.: Business,
R/o Baburaja Complex,
Kirana Chawdi, Aurangabad: 431001. .. Petitioner
Versus
1. State of Maharashtra
Through Secretary
Finance Department,
Madam Cama Road,
Hutatma Rajguru Chowk,
Mantralaya, Mumbai.
2. Commissioner of Sales Tax,
Maharashtra State, Mumbai.
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3. Joint Commissioner of Sales Tax,
Aurangabad Division,
Aurangabad.
4. Dy. Commissioner of Sales Tax,
Aurangabad Division, Aurangabad.
5. Asst. Commissioner of Sales Tax, (investigation)
Aurangabad Division, Aurangabad. .. Respondents
Shri Rameshwar F. Totala, Advocate for the Petitioner.
Shri M. B. Bharaswadkar, A.G.P. for Respondent Nos. 1 to 5.
WITH
WRIT PETITION NO. 8998 OF 2014
M/s Damodar Jagannath Malpani
Through its Partner,
Smt. Lalita W/o Omkarnath Malpani
Age: 71 years, Occ. Household & Business,
Working at Malpani Estate, Kasara Dumala,
Sangamner, Dist: Ahmednagar. .. Petitioner
Versus
1. The State of Maharashtra
Through Secretary
Finance Department,
Madam Cama Road,
Hutatma Rajguru Chowk,
Mantralaya, Mumbai.
2. The Maharashtra Sales Tax Tribunal,
Mumbai.
3. The Commissioner of Sales Tax,
Maharashtra State, Mumbai.
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4. Joint Commissioner of Sales Tax,
Nasik Division, Nasik.
5. Dy. Commissioner of Sales Tax,
Ahmednagar Division, Ahmednagar. .. Respondents
Shri Rameshwar F. Totala, Advocate for the Petitioner.
Shri M. B. Bharaswadkar, A.G.P. for Respondent Nos. 1 to 5.
WITH
WRIT PETITION NO. 11343 OF 2014
Mittal Agencies through
Its Proprietor Mr. Ashish Suresh Mittal,
Age 31 yrs, Occ: Business,
R/o Shop No. 42, Ganjgolai
Latur. .. Petitioner
Versus
1. The State of Maharashtra
Through Secretary
Finance Department,
Madam Cama Road,
Hutatma Rajguru Chowk,
Mantralaya, Mumbai.
2. The Commissioner of Sales Tax,
Maharashtra State, Mumbai.
3. Joint Commissioner of Sales Tax,
Amrawati division, Amravati.
4. Deputy Commissioner of Sales Tax,
Latur. .. Respondents
Shri Rameshwar F. Totala, Advocate for the Petitioner.
Shri M. B. Bharaswadkar, A.G.P. for Respondent Nos. 1 to 4.
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WITH
WRIT PETITION NO. 9968 OF 2016
Mohd. Salim Mohd. Yusuf
Age: 36 yrs, Occ: Business
(Proprietor of M/s Kalim Jarda Stores)
R/o Station Road, Parbhani.
Tal. and Dist. Parbhani. .. Petitioner
Versus
1. The State of Maharashtra
Through Secretary
Finance Dept.
Mantralaya, Mumbai.
2. Commissioner of Sales Tax,
Maharashtra State, Mumbai.
3. Dy. Commissioner of Sales Tax,
Nanded.
4. Asst. Commissioner of Sales Tax,
Parbhani. .. Respondents
Shri Rameshwar F. Totala, Advocate for the Petitioner.
Shri M. B. Bharaswadkar, A.G.P. for Respondent Nos. 1 to 4.
WITH
WRIT PETITION NO. 10003 OF 2016
Mohd. Zahir Mohd. Bashir
Age: 36 yrs, Occ: Business (Proprietor
of M/s Prince Jarda Stores), Bhokar,
Dist. Nanded .. Petitioner
Versus
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1. The State of Maharashtra
through Secretary,
Finance Dept.
Mantralaya, Mumbai.
2. Commissioner of Sales Tax,
Maharashtra State, Mumbai.
3. Asst. Commissioner of Sale Tax,
Nanded.
4. Dy. Commissioner of Sales Tax,
Nanded. .. Respondents
Shri Rameshwar F. Totala, Advocate for the Petitioner.
Shri M. B. Bharaswadkar, A.G.P. for Respondent Nos. 1 to 4.
CORAM : S. V. GANGAPURWALA AND
K. L. WADANE, JJ.
Closed for Judgment on : 23.02.2017
Judgment Pronounced on : 05.05.2017
JUDGMENT (Per S. V. Gangapurwala, J.) :-
. Rule. Rule made returnable forthwith. With the consent of
parties taken up for final hearing.
2. All these writ petitions are based on similar set of facts and
involve common question of law, as such are decided together.
3. The petitioners are aggrieved by the trade circular No. 9T
of 2012 dated 30.06.2012.
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4. Mr. Totala and Mr. Ladda, the learned counsel for
petitioners strenuously contend that, the petitioners sell
unmanufactured tobacco. The learned counsel submit that, Sec.
45-A of the Maharashtra Value Added Tax Act 2002 (for short
"Act of 2002") was amended with effect from 01.02.2006. The
learned counsel submit that, the petitioners do not have any
objection about levy of Value Added Tax (for short "VAT") on
unmanufactured tobacco, as stated in the explanation of the
notification dated 31st March, 2012 with effect from 01st April,
2012. According to the learned counsel, the impugned circular
dated 30.06.2012 is contrary to the notification dated 31.03.2012.
The learned counsel submit that, when explanation seeks to give
artificial meaning and brings about the change effectively in the
existing law and in addition states to have come into force with
effect from a future date, there is no principle of interpretation,
which would justify reading the explanation as operating
retrospectively. According to the learned counsel, as per the
provisions of the Act of 2002, the manufacturer shall levy the
VAT on sell and collect it from the petitioners and then the
petitioners shall in turn recover the same from its customers. In
these cases neither the manufacturer collected the tax from the
petitioners, nor the petitioners have collected the same from its
customers.
5. The learned counsel submit that, as per Sec. 9 of the Act of
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2002, the powers vest with the State Government to amend the
schedule by way of notification and it cannot be by way of circular
as sought to be done in the present cases. So also the proviso of
Sec. 9 of the Act of 2002 limits the powers of the State
Government for enhancement of rate of tax after the expiry of
period of two years from the appointed date. The learned counsel
relying on Sec. 20(1)(a) of the Act of 2002 states that, no defect
notice has been sent by the respondent authorities to petitioners.
The learned counsel submits that, powers U/Sec. 22(1)(c) of the
Act of 2002 have also not been exercised. The respondent
authorities have not carried out the business audit meaning
thereby that the authorities have accepted the returns filed by
petitioners. The learned counsel submit that, the respondent
authorities have not issued any notice U/Sec. 23(2) of the Act of
2002. So also as per proviso to sub Sec. 2 of Sec. 23 of the Act of
2002, no order of assessment under this sub-section shall be
made after the expiry of three years from the end of the year
containing the period to which the return relates. The
respondent authorities are claiming VAT from the year 2007.
The respondents cannot exercise the powers U/Sec. 29(5) of the
Act of 2002 of issuing the show cause notice, as pre-conditions of
Sec. 8 of the Act of 2002 are not available in case of petitioners.
The exercise of powers of authority in issuing the show cause
notice U/Sec. 29(5) of the Act of 2002 is colourable exercise of
powers by the respondent authorities. The trade circular and the
impugned notices are contrary to the provisions of law. The
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learned counsel rely on the judgment of the Apex Court in a case
of Sedco Forex International, Drill, Inc. and others
Vs. Commissioner of Income Tax, Dehradun and another
reported in (2005) 12 SCC 717.
6. Mr. Bharaswadkar, the learned Assistant Government
Pleader for respondent Nos. 1 to 5 submits that, while
challenging the explanation to the trade circular, the petitioners
have not considered the note 5 of the said circular. The circular
cannot be used for legal interpretation of the provisions of law, as
it is clarificatory in nature. The interpretation of the notification
shall be independent of the circular. The learned A. G. P. further
submits that, entry No. 12 of Schedule D and E covers
unmanufactured tobacco. Further Schedule E entry E-1 provides
that, all goods not covered under any other schedules are covered
under the said entry. The petitioners are selling the tobacco
under brand name. These are covered under clause 2 and 3 of
Chapter 24 of the Central Excise Tariff Act under the head 2401.
As such cannot be termed as unmanufactured tobacco. The
explanation is of clarificatory nature. For incorrect assessment
the remedy of appeal is provided and appeals are either decided
or pending. The petitioners have alternate remedy, which they
can avail.
7. Upon consideration of the arguments canvassed by learned
counsel for respective parties, it is manifest that we will have to
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deal with Entry 45-A, it's explanation, so also entry 2401. For
the sake of convenience the same are reproduced below.
MAHARASHTRA VALUE ADDED TAX ACT 2002
SCHEDULE - A
1. .........
Before amendment
45A (a) unmanufactured tobacco covered Nil 1.4.2007
under tariff heading No. 2401 to
of the Central Excise Tariff
Act, 1985. 31.3.2012
After amendment
45A (a) unmanufactured tobacco covered Nil 1.4.2012
under tariff heading No. 2401 to date
of the Central Excise Tariff
Act, 1985.
Explanation.-- For the removal of the
doubts, it is hereby declared
that, the unmanufactured tobacco shall
not include unmanufactured tobacco
when sold in packets under the Brand name.
Tariff Item Description of goods Unit Rate of
Duty
-1 -2 -3 -4
2401 Unmanufactured tobacco; tobacco
refuse
2401 10 --Tobacco, not stemmed or stripped; kg 10.00%
2401 10 10 --Flue cured Virginia tobacco kg 10.00%
2401 10 20 --Sun cured country (natu) botacco kg 10.00%
2401 10 30 --Sun cured Virginia tobacco kg 10.00%
2401 10 40 --Burley tobacco kg 10.00%
2401 10 50 --Tobacco for manufacture of biris, not kg 10.00%
stemmed
2401 10 60 --Tobacco for manufacture of chewing kg 10.00%
tobacco
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2401 10 70 --Tobacco for manufacture of cigar and kg 10.00%
cheroot
2401 10 80 --Tobacco for manufacture of hookah tobacco kg 10.00%
2401 10 90 -- Other . . . . . . . . . kg 10.00%
--Tobacco partly or wholly stemmed or
stripped:
2401 20 10 --Flue cured virginia tobacco kg 10.00%
2401 20 20 --Sun cured country (natu) tobacco kg 10.00%
2401 20 30 --Sun cured virginia tobacco kg 10.00%
2401 20 40 --Burley tobacco kg 10.00%
2401 20 50 --Tobacco for manufacture of biris, not kg 10.00%
stemmed
2401 20 60 --Tobacco for manufacture of chewing kg 10.00%
tobacco
2401 20 70 --Tobacco for manufacture of cigar and kg 10.00%
cheroot
2401 20 80 --Tobacco for manufacture of hookah tobacco kg 10.00%
2401 20 90 -- Other kg 10.00%
2401 30 00 -- Tobacco refuse kg 10.00%
8. The moot question would be reading the explanation, as a
substantive amendment or clarificatory.
9. Entry 45-A of the Act of 2002 was amended by notification
dated 31.03.2012 by the Government exercising its powers U/Sec.
09 of the Act of 2002. Entry 45-A as it stood prior to amendment
of 31.03.2002, it contained Clause - B with no explanation. Vide
notification dated 31.03.2012 Clause - B which dealt with biris is
deleted and an explanation is added. The bone of contention
between the parties is the date of applicability of amendment.
By the explanation, it is declared that the unmanufactured
tobacco shall not include unmanufactured tobacco when sold in
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packets under the brand name. Prior to 31.03.2012, the
legislature did not make any distinction between
unmanufactured tobacco sold in brand name or otherwise. The
entry 45A is part of Schedule - A, which details the list of goods
for which the rate of tax is nil. The unmanufactured tobacco
covered under tariff heading No. 2401 of the Central Excise
Tariff Act, 1985 is not taxable i. e. it's tax is nil as per Entry 45-
A(a).
10. The Trade Circular under challenge lays down that the
said explanation is clarificatory in nature. If the explanation is
interpreted as a mere clarificatory, then the question of its
applicability prospectively or retrospectively may not arise. When
the explanation serves the purpose of clarification of the existing
law, there is no question of its prospective or retrospective
operation, as the said explanation would only explain and clear
any mental cobwebs surrounding meaning of statutory provision
and to prevent controversial interpretation. Explanations
generally are intended more as a legislative exposition or
clarification of the existing law than as a change in it. If we go to
the literal words employed in the explanation, then the said
explanation is introduced for the removal of the doubts. The
language of the explanation depicts such intention. If the
explanation is interpreted as merely clarificatory, then the trade
circular cannot be held to be erroneous.
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11. Yet, we will have to bear in mind that, the taxing statutes
have to be interpreted strictly. We will have to consider whether
the incorporation of explanation to Entry 45A of the Act of 2002
has altered the law as existing prior to the amendment dated
31.03.2012. While adding the said explanation, the entry 12 to
Schedule - D is also amended.
12. As per Section 9(1-A) of the Act, the State Government has
the powers to amend the schedule by adding or modifying any
entry in the schedule. The notification dated 29.03.2007 was in
force upto 31st March, 2012. Item B in the entry 45A is deleted
with effect from 01.04.2012, that would be interpretation of the
fact that, notification dated 31.03.2012 operates prospectively.
The trade circular dated 30th March, 2007 clarifies that the
unmanufactured tobacco cleared under Chapter Head 2401 of the
Central Excise and Tariff Act will be exempted from tax. The
trade circular dated 06th August, 2009 also clarifies the same.
Incorporation of explanation has amendatory implication with
effect from 01st April, 2012. The explanation in the notification
dated 31st March, 2012 will have to be held as amendatory and
not clarificatory. We are only concerned with the position prior
to 31.03.2012. As and from 01st April, 2012, the unmanufactured
tobacco sold in brand name is taxable. We are only concerned
with unmanufactured tobacco covered under heading 2401 of
CETA.
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13. Considering the trade circular dated 30th March, 2007 and
06th August, 2009, it would be clear that the Department
considered the unmanufactured tobacco covered under Chapter
Head 2401 of the Central Excise and Terrifs Act exempted from
tax. The said position subsisted till 31.03.2012. It would appear
that, no distinction was made between sale of unmanufactured
tobacco in packet or in retail or whether branded or not branded.
For the first time the said distinction is made by virtue of
explanation to Entry No. 45-A of the Maharashtra Value Added
Tax Act 2002.
14. The explanation no doubt begins with the expression "for
removal of doubts", however, the same does not appear to be plain
and conclusive in nature. The operative implication of the
expression "for removal of doubts" in the explanation does not
show nexus to legislative intent of taxing liability. By virtue of
explanation a particular class is created. By inserting
explanation to Entry No. 45-A. New class is created i. e.
unmanufactured tobacco sold in packets under a brand name. A
distinction is made for the first time by insertion of said
explanation between the unmanufactured tobacco sold in retail,
loose and those unmanufactured tobacco sold in packets under a
brand name. The said distinction has been introduced by way of
an explanation. By reason of explanation a substantive law is
introduced and if a substantive law is introduced, wherein a class
is created thereby making it liable for tax, the explanation will
19 wp 4944.13
have to be held amendatory to operate prospectively and not
retrospectively.
15. In the light of the above, it will have to be held that the
addition of explanation to Entry No. 45-A under notification
dated 31.03.2012 is substantive provision and it is not merely
clarificatory, as such would operate prospectively. It will have to
be held that, unmanufactured tobacco sold in packets under a
brand name would not be taxable from 01.04.2007 to 31.03.2012.
The impugned trade circular 9T dated 30.06.2012 stating that
explanation is merely clarificatory is held to be erroneous to that
extent.
16. The writ petitions are accordingly allowed holding that the
unmanufactured tobacco sold in packets under a brand name
covered under Tariff heading No. 2401 of Central Excise Teriff
Act would not be taxable upto 31.03.2012. The impugned trade
circular 9T dated 30.06.2012 stating that explanation is merely
clarificatory is held to be erroneous to that extent. The
explanation to Entry 45-A of the Maharashtra Value Added Tax
would operate prospectively and not retrospectively. The reply to
the show cause notices shall be given by petitioners and the
authorities shall decide accordingly. The order dated 12.02.2014
passed by Deputy Commissioner of Sales Tax, Ahmednagar
Division, Ahmednagar and order dated 26.06.2014 passed by the
Maharashtra Sales Tax Tribunal, Mumbai assailed in the Writ
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Petition No. 8950 of 2014, the order dated 26.03.2014 passed by
Deputy Commissioner of Sales Tax, Latur and order dated
19.11.2014 passed by the Joint Commissioner of Sales Tax,
Amrawati Division, Amrawati assailed in the Writ Petition No.
11344 of 2014, the order dated 12.02.2014 passed by Deputy
Commissioner of Sales Tax, Ahmednagar Division, Ahmednagar
and order dated 26.06.2014 passed by the Maharashtra Sales Tax
Tribunal, Mumbai assailed in the Writ Petition No. 8998 of 2014,
the order dated 31.07.2014 passed by Deputy Commissioner of
Sales Tax, Latur and order dated 19.11.2014 passed by the Joint
Commissioner of Sales Tax, Amrawati Division, Amrawati
assailed in the Writ Petition No. 11343 of 2014, the order dated
26.03.2015 passed by Assistant Commissioner of Sales Tax,
Parbhani and order dated 30.06.2016 passed by the Deputy
Commissioner of Sales Tax, Mumbai assailed in the Writ Petition
No. 9968 of 2016 and order dated 12.10.2015 for the assessment
year 2009-2010 and order dated 20.06.2015 for assessment year
2011-2012 assailed in Writ Petition No. 10003 of 2016 are
quashed and set aside and the matters are remitted to the
Tribunal for deciding it afresh in tune with the judgment
delivered in the present writ petition.
Rule accordingly made absolute in above terms. No costs.
Sd/- Sd/-
[ K. L. WADANE, J. ] [ S. V. GANGAPURWALA, J. ]
bsb/May 17
