Chattisgarh High Court
M/S Century Cement (Prop. Century ... vs Commissioner on 14 December, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
TAXC No. 110 of 2018
M/s Grasim Cement (Now Known As M/s Ultra Tech Cement Ltd.) Ravan
Industrial Area, Raipur, District Raipur, Chhattisgarh.
---- Applicant
Versus
Commissioner Commercial Tax Raipur, District Raipur, Chhattisgarh
---- Respondent
TAXC No. 111 of 2018
M/s Grasim Cement ( Now Known As M/s Ultra Tech Cement Ltd. ) Ravan
Industrial Area, Raipur, District Raipur, Chhattisgarh.
---- Applicant
Versus
Commissioner Commercial Tax, Raipur, District Raipur, Chhattisgarh.
---- Respondent
TAXC No. 112 of 2018
M/s Grasim Cement (Now Known As M/s Ultra Tech Cement Ltd.), Ravan
Industrial Area, Raipur, District Raipur, Chhattisgarh.
---- Applicant
Versus
Commissioner Commercial Tax, Raipur, District Raipur, Chhattisgarh.
---- Respondent
TAXC No. 113 of 2018
M/s Ultra Tech Cement Ltd. Ravi Nagar, Raipur, District Raipur,
Chhattisgarh.
---- Applicant
Versus
Commissioner, Commercial Tax Raipur, District Raipur, Chhattisgarh.
---- Respondent
TAXC No. 114 of 2018
M/s Ultra Tech Cement Ltd. Ravi Nagar, Raipur, District- Raipur,
Chhattisgarh
---- Applicant
Versus
Commissioner, Commercial Tax Raipur, District- Raipur, Chhattisgarh.
---- Respondent
TAXC No. 115 of 2018
M/s Century Cement (Prop. Century Textiles And Industries Ltd. ) Having
Its Head Office At Industry House 59 Churchgate Reclamation, Mumbai
400020 (Maharashtra) And Cement Manufacturing Unit At Post Office
Baikunth 493116, District Raipur Chhattisgarh
---- Applicant
Versus
Commissioner, Commercial Tax, Chhattisgarh Devendra Nagar Raipur
Chhattisgarh.
---- Respondent
TAXC No. 116 of 2018
M/s Century Cement (Prop. Century Textiles And Industries Ltd. ) Having
Its Head Office At Industry House 59 Churchgate Reclamation, Mumbai
400020, Maharashtra And Cement Manufacturing Unit At Post Office
Baikunth, 493116 District- Raipur, Chhattisgarh.
---- Applicant
Versus
Commissioner, Commercial Tax, Chhattisgarh Devendra Nagar, Raipur,
Chhattisgarh.
---- Respondent
TAXC No. 117 of 2018
M/s Century Cement (Prop. Century Textiles And Industries Ltd.) Having Its
Head Office At Industry House 59 Churchgate Reclamation, Mumbai
400020, Maharashtra And Cement Manufacturing Unit At Post Office
Baikunth, 493116 District- Raipur, Chhattisgarh
---- Applicant
Versus
Commissioner, Commercial Tax, Chhattisgarh Devendra Nagar, Raipur,
Chhattisgarh.
---- Respondent
TAXC No. 119 of 2018
M/s Century Cement (Prop. Century Textiles And Industrues Ltd.) Having
Its Head Office At Industry House59 Churchgate Reclamation, Mumabi
400020 Maharashtra And Cement Manufacturing Unit At Post Office
Baikunth, 493116 District- Raipur, Chhattisgarh
---- Applicant
Versus
Commissioner Commercial Tax, Chhattisgarh, Devendra Nagar, Raipur,
Chhattisgarh
---- Respondent
TAXC No. 120 of 2018
M/s Century Cement (Prop. Century Textiles And Industries Ltd.) Having Its
Head Office At Industry House 59 Churchgate Reclamation, Mumbai
400020 (Maharashtra) And Cement Manufacturing Unit At P.O. Baikunth
493116, District Raipur, Chhattisgarh
---- Applicant
Versus
Commissioner Commercial Tax, Chhattisgarh, Devendra Nagar, Raipur,
Chhattisgarh
---- Respondent
(Cause Title taken from Case Information System)
For Applicant : Mr. Neelabh Dubey, Advocate {In TAXC No. 110/2018,
111/2018, 112/2018, 113/2018 and 114/2018}
Mr. Ashish Shrivastava, senior counsel, assisted by Mr.
Aman Pandey, Advocate {In TAXC No. 115/2018,
116/2018, 117/2018, 119/2018 and 120/2018}
For Respondent : Mr. Vikram Sharma, Deputy Government Advocate.
Hon'ble Mr. Arup Kumar Goswami, Chief Justice
Hon'ble Mr. Arvind Singh Chandel, Judge
Order on Board
Per Arup Kumar Goswami, Chief Justice
14/12/2022
Heard Mr. Neelabh Dubey, learned counsel appearing for the
applicant in TAXC No. 110/2018, 111/2018, 112/2018, 113/2018 and
114/2018 and Mr. Ashish Shrivastava, learned senior counsel, assisted by
Mr. Aman Pandey, learned counsel, appearing for the applicant in TAXC
No. 115/2018, 116/2018, 117/2018, 119/2018 and 120/2018. Also heard
Mr. Vikram Sharma, learned Deputy Government Advocate, appearing for
the respondent.
2. By means of these applications filed under Section 55(2) of the
Value Added Tax Act, 2005 (for short, the Act of 2005), the applicants have
prayed for referring the following substantial questions of law to this Court:
"1. Whether the Ld. Tribunal erred in concluding that the
judgment of Hon'ble Supreme Court in the case of 20 th
Century Finance Corporation 119 STC, page 182 do not
apply to the facts of the Appellant case. Whereas the
agreement under right to use between the Appellant and
the railways has been entered into in the light of the
scheme of the Central Govt., as "own your wagon
scheme". This scheme has been referred in agreement
between Appellant and the railways.
2. Whether the Ld. Tribunal erred in concluding that the
judgment in Goa Carbon (supra) (2008) 13 VST, page 456
applies to the facts of the Appellant case.
3. Whether the Ld. Tribunal erred in not following the
judgment dated 05.05.2011 and that of 21.10.2009
passed by the Hon'ble High Court of CG in the case of
Raymond Ltd., Vs. Addl. Commissioner under the similar
facts.
4. Whether the finding of the Ld. Tribunal is perverse as it
failed to consider the relevant decisions relied upon by the
applicant/assessee which dealt with identical issue and
deliberated and interpreted the provisions of Sec. 79 of
the CG CT Act/38 of the CG VAT Act in regard to no
power of the State to tax the transaction which is an
interstate sales or a transaction in other state. The
judgment of Orissa High Court in Telecommunication
Consultant India Ltd., (2010) 29 VST, page 265 not
appreciated.
5. Whether the Ld. Tribunal has erred in concluding that,
since Form-C has been used by the Appellant from CG, it
means that, the lease agreement for the State of CG liable
to tax in CG. Here the Ld. Tribunal failed to appreciate the
proviso to the para in Form-C added from 01.02.1997 its
provides that Form-C can be issued for purchase of gods
to be delivered in a State where the purchases is not
registered."
3. The learned Chhattisgarh Commercial Tax Tribunal, for short, 'the
Tribunal', dismissed applications filed under Section 55(1) for referring the
above questions to this Court by order dated 22.05.2018 by relying on a
common judgment dated 05.12.2017 passed in WP(T) No. 128/2015 and
WP(T) No. 54/2016, wherein it was observed as follows:
"Given the aforesaid legal positions, the transfer of right to
use the goods and that for the wagons so purchased at
the behest of the petitioner's establishment are availing
the benefits within the territories of the State of
Chhattisgarh as has been discussed in the preceding
paragraphs, this Court has no hesitation in reaching to the
conclusion that the imposition of tax on the lease charges
by the Assessing Officer vide its order dated 22.12.2014
and the rejection of the revision by the Revisional authority
vide its order dated 30.05.2015 is just and proper and
does not warrant interference."
4. Learned counsel appearing for the applicants have produced before
the Court a copy of judgment dated 05.12.2017 passed in WP(T) No.
128/2015 and WP(T) No. 54/2016.
5. A review petition, being REVP No. 14/2018, was filed against the
order dated 05.12.2017 passed in WP(T) No. 128/2015, and after hearing
learned counsel for the parties, the review petition was allowed for re-
hearing of WP(T) No. 128/2015.
6. On a query of this Court as to whether any review was sought for in
respect of order dated 05.12.2017 passed in WP(T) No. 54/2016, learned
counsel for the parties are unable to apprise this Court. Learned counsel
for the applicants, however, submit that the same would be inconsequential
as the order dated 05.12.2017 was a common order in both the writ
petitions.
7. We express no opinion on the same.
8. Subsequently, WP(T) No. 128/2015 came to be decided by judgment
dated 07.12.2022. In paragraph 22, the learned Single Judge observed as
follows:
"22. For all the aforesaid facts and circumstances and also
the Judgment of the Hon'ble Supreme Court in the case of
"20th Century Finance Corpn. Ltd." (supra) and the
subsequent Judgments of various High Courts including
the High Court of Chhattisgarh, this Court is of the opinion
that the Orders of the assessment so made by the
Assessing Authority and the rejection of the Revision by
the Revisional Authority both being in contravention to the
provisions of law and also contrary to the Judgments of the
Hon'ble Supreme Court, the same thus would not be
sustainable and therefore both the Orders deserve to be
set-aside/quashed."
9. The very basis on which reference application under Section 55(1) of
the Act of 2005 was rejected, no longer exists in view of the judgment
dated 07.12.2022 passed in WP(T) No. 128/2015.
10. In that view of the matter, the learned Tribunal is directed to state the
cases and refer the questions to this Court.
11. Accordingly, by this order, these cases are disposed of.
Sd/- Sd/-
(Arup Kumar Goswami) (Arvind Singh Chandel)
CHIEF JUSTICE JUDGE
Amit
