Chattisgarh High Court
B G R Mining And Infra Limited vs State Of Chhattisgarh on 18 October, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on 01/9/2022
Order delivered on 18/10/2022
WPT No. 99 of 2020
• M/s Sunil Kumar Agrawal Through Its Proprietor Sunil Kumar
Agrawal S/o Shri Radheshyam Agrawal, A/a 50 Years, Seva
Kunj Road, Near Girls College, Raigarh, Chhattisgarh
---- Petitioner
Versus
1. State of Chhattisgarh Through Joint Commissioner, State Tax
Bilaspur Division- II, Commercial Tax- GST Department, North
Block, Sector-19, Atal Nagar, Naya Raipur Chhattisgarh.
2. Deputy Commissioner, Commercial Tax, Bilaspur Division- II,
Commercial Tax- GST Department, North Block, Sector- 19,
Atal Nagar, Naya Raipur, Chhattisgarh.
3. Commercial Tax Officer, Raigarh Circle, Circle- II, Korba,
Commercial Tax- GST Department, North Block, Sector-19,
Atal Nagar, Naya Raipur, Chhattisgarh.
4. Commercial Tax Officer, Raigarh, Circle- I, Commercial Tax-
GST Department, North Block, Sector-19, Atal Nagar, Naya
Raipur, Chhattisgarh.
5. Assistant Commissioner, Circle- I, Raigarh, Commercial Tax-
GST Department, North Block, Sector-19, Atal Nagar, Naya
Raipur Chhattisgarh.
---- Respondents
WPT No. 1 of 2021
• BGR Mining & Infra Limited, a Company Registered Under the
Companies Act, 1956, Having its office At 8-2-596/R, Road No.
10, Bajara Hills, Hyderabad-500034 (Telangana);
And its office in the State of Chhattisgarh At 598/6, S.S.Plaza,
P.H. Road, Korba, Post Office and PS Korba, District Korba
(CG)
---- Petitioner
Versus
1. State of Chhattisgarh, through the Secretary, Department of
Commercial Taxes, having its office at Mahanadi Bhawan,
Mantralaya, Atal Nagar, Mandir Hasod, District Riapur (CG)
2. Joint Commissioner of State Tax Bilaspur, Division No.2, Post
Office & Police Station Bilaspur, District Bilaspur, Chhattisgarh.
3. Deputy Commissioner of State Tax Bilaspur, Division No.2,
Post Office & Police Station Bilaspur, District Bilaspur (CG).
4. Assistant Commissioner of Commercial Taxes, Korba Division,
Korba, District Korba (CG).
5. Commercial Tax Officer (Commercial Tax Circle-2) Korba
Division, Korba, District Korba (CG)
---- Respondents
WPT No. 2 of 2021
• BGR Mining & Infra Limited, a Company Registered Under the
Companies Act, 1956, Having its office At 8-2-596/R, Road No.
10, Bajara Hills, Hyderabad-500034 (Telangana);
And its office in the State of Chhattisgarh At 598/6, S.S.Plaza,
P.H. Road, Korba, Post Office and PS Korba, District Korba
(CG)
---- Petitioner
Versus
• State of Chhattisgarh, through the Secretary, Department of
Commercial Taxes, having its office at Mahanadi Bhawan,
Mantralaya, Atal Nagar, Mandir Hasod, District Riapur (CG)
• Joint Commissioner of State Tax Bilaspur, Division No.2, Post
Office & Police Station Bilaspur, District Bilaspur, Chhattisgarh.
• Deputy Commissioner of State Tax Bilaspur, Division No.2,
Post Office & Police Station Bilaspur, District Bilaspur (CG).
• Assistant Commissioner of Commercial Taxes, Korba Division,
Korba, District Korba (CG).
• Commercial Tax Officer (Commercial Tax Circle-2) Korba
Division, Korba, District Korba (CG)
---- Respondents
WPT No. 103 of 2020
• M/s Chennai Radha Engineering Works Pvt. Ltd., A company
duly registered under the provisions of the Companies Act,
1956, having its registered office at 209, AJC Bose Road,
Kamani Estate, 4th Floor, Room No.166, Kolkota-700017
through its authorized signatory Vimal Azhagesan, General
Manager, S/o Late Shri A Venkatesan, aged about 59 years,
R/o 2/123-A, Rajaji Street, Shrinivasapuram, Mayiladuthurai &
Post and Tehsil, District Nagapattinam, Tamilnadu 6090001
---- Petitioner
Versus
1. State of Chhattisgarh Through the Principal Secretary,
Department of Commercial Tax-GST, Mahanadi Bhawan,
Mantralaya, Atal Nagar, Nawa Raipur District Raipur (CG)
2. Divisional Deputy Commissioner, Commercial Tax, Bilaspur
Division-II, Commercial Tax-GST Department, Ambe Plaza,
Tifra, Bilaspur District Bilaspur (CG)
3. Joint Commissioner State Tax Bilaspur Division-II, Commercial
Tax-GST Department, Ambe Plaza, Tifra, Bilaspur District
Bilaspur Chhattisgarh
4. Commercial Tax Officer, Commercial Tax, Korba, Circle-II,
Commercial Tax-GST Department, Collectrorate Campus,
Korba, District Korba Chhattisgarh
5. Assistant Commissioner, Commercial Tax, Bilaspur Division-II,
Commercial Tax-GST Department, Ambe Plaza, Tifra, Bilaspur
District Bilaspur Chhattisgarh
6. Commissioner, Commercial Tax Department, Department of
Commerical Tax-GST, Mahanadi Bhawan, Mantralaya, Atal
Nagar, Nawa Raipur, District Raipur Chhattisgarh
---- Respondents
WPT No. 106 of 2020
• Dee Cee Coal Carriers Pvt. Ltd. A company duly registered
under the provisions of the Companies Act, 1956, having its
registered office at 206, Palco House, 2162/ T-10, Guru Arjun
Nagar, Main Road, West Patel Nagar, New Delhi 110008
Through its Director Jonmenjoy Moyra, Son of Shri Govinda
Mohan Moyra, aged about 50 years Resident of P Ravishankar
Shukl Nager, Korba, District Korba 495677.
---- Petitioner
Versus
1. State of Chhattisgarh Through the Principal Secretary,
Department of Commercial Tax-GST, Mahanadi Bhawan,
Mantralaya, Atal Nagar, Nawa Raipur District Raipur (CG)
2. Divisional Deputy Commissioner, Commercial Tax, Bilaspur
Division-II, Commercial Tax-GST Department, Ambe Plaza,
Tifra, Bilaspur District Bilaspur (CG)
3. Joint Commissioner State Tax Bilaspur Division-II, Commercial
Tax-GST Department, Ambe Plaza, Tifra, Bilaspur District
Bilaspur Chhattisgarh
4. Commercial Tax Officer, Commercial Tax, Korba, Circle-II,
Commercial Tax-GST Department, Collectrorate Campus,
Korba, District Korba Chhattisgarh
5. Assistant Commissioner, Commercial Tax, Bilaspur Division-II,
Commercial Tax-GST Department, Ambe Plaza, Tifra, Bilaspur
District Bilaspur Chhattisgarh
6. Commissioner, Commercial Tax Department, Department of
Commerical Tax-GST, Mahanadi Bhawan, Mantralaya, Atal
Nagar, Nawa Raipur, District Raipur Chhattisgarh
---- Respondents
WPT No. 110 of 2020
• M/s Narayani Sons Private Limited 209, AJC Bose Road,
Kamani Estate, 4th Floor, Room No.166, Kolkata 700017, CIN
U51900WB2005PTC102304 through its authorized signatory
Shri Chakradhar Mohanty, Project Manager, S/o Shri
Banshidhar Mohanty , aged about 35 years , R/o Kharmora,
Dadarkhurd Ward No.23, House No.97/07, Korba Chhattisgarh
495682.
---- Petitioner
Versus
1. State of Chhattisgarh Through the Principal Secretary,
Department of Commercial Tax-GST, Mahanadi Bhawan,
Mantralaya, Atal Nagar, Nawa Raipur District Raipur (CG)
2. Divisional Deputy Commissioner, Commercial Tax, Bilaspur
Division-II, Commercial Tax-GST Department, Ambe Plaza,
Tifra, Bilaspur District Bilaspur (CG)
3. Joint Commissioner State Tax Bilaspur Division-II, Commercial
Tax-GST Department, Ambe Plaza, Tifra, Bilaspur District
Bilaspur Chhattisgarh
4. Commercial Tax Officer, Commercial Tax, Korba, Circle-II,
Commercial Tax-GST Department, Collectrorate Campus,
Korba, District Korba Chhattisgarh
5. Assistant Commissioner, Commercial Tax, Bilaspur Division-II,
Commercial Tax-GST Department, Ambe Plaza, Tifra, Bilaspur
District Bilaspur Chhattisgarh
6. Commissioner, Commercial Tax Department, Department of
Commerical Tax-GST, Mahanadi Bhawan, Mantralaya, Atal
Nagar, Nawa Raipur, District Raipur Chhattisgarh
---- Respondents
WPT No. 111 of 2020
• Dee Cee Coal Carriers Pvt. Ltd. A company duly registered
under the provisions of the Companies Act, 1956, having its
registered office at 206, Palco House, 2162/ T-10, Guru Arjun
Nagar, Main Road, West Patel Nagar, New Delhi 110008
Through its Director Jonmenjoy Moyra, Son of Shri Govinda
Mohan Moyra, aged about 50 years Resident of P Ravishankar
Shukl Nager, Korba, District Korba 495677.
---- Petitioner
Versus
1. State of Chhattisgarh Through the Principal Secretary,
Department of Commercial Tax-GST, Mahanadi Bhawan,
Mantralaya, Atal Nagar, Nawa Raipur District Raipur (CG)
2. Divisional Deputy Commissioner, Commercial Tax, Bilaspur
Division-II, Commercial Tax-GST Department, Ambe Plaza,
Tifra, Bilaspur District Bilaspur (CG)
3. Joint Commissioner State Tax Bilaspur Division-II, Commercial
Tax-GST Department, Ambe Plaza, Tifra, Bilaspur District
Bilaspur Chhattisgarh
4. Commercial Tax Officer, Commercial Tax, Korba, Circle-II,
Commercial Tax-GST Department, Collectrorate Campus,
Korba, District Korba Chhattisgarh
5. Assistant Commissioner, Commercial Tax, Bilaspur Division-II,
Commercial Tax-GST Department, Ambe Plaza, Tifra, Bilaspur
District Bilaspur Chhattisgarh
6. Commissioner, Commercial Tax Department, Department of
Commerical Tax-GST, Mahanadi Bhawan, Mantralaya, Atal
Nagar, Nawa Raipur, District Raipur Chhattisgarh
---- Respondents
WPT No. 112 of 2020
• M/s Narayani Sons Private Limited 209, AJC Bose Road,
Kamani Estate, 4th Floor, Room No.166, Kolkata 700017, CIN
U51900WB2005PTC102304 through its authorized signatory
Shri Chakradhar Mohanty, Project Manager, S/o Shri
Banshidhar Mohanty , aged about 35 years , R/o Kharmora,
Dadarkhurd Ward No.23, House No.97/07, Korba Chhattisgarh
495682.
---- Petitioner
Versus
1. State of Chhattisgarh Through the Principal Secretary,
Department of Commercial Tax-GST, Mahanadi Bhawan,
Mantralaya, Atal Nagar, Nawa Raipur District Raipur (CG)
2. Divisional Deputy Commissioner, Commercial Tax, Bilaspur
Division-II, Commercial Tax-GST Department, Ambe Plaza,
Tifra, Bilaspur District Bilaspur (CG)
3. Joint Commissioner State Tax Bilaspur Division-II, Commercial
Tax-GST Department, Ambe Plaza, Tifra, Bilaspur District
Bilaspur Chhattisgarh
4. Commercial Tax Officer, Commercial Tax, Korba, Circle-II,
Commercial Tax-GST Department, Collectrorate Campus,
Korba, District Korba Chhattisgarh
5. Assistant Commissioner, Commercial Tax, Bilaspur Division-II,
Commercial Tax-GST Department, Ambe Plaza, Tifra, Bilaspur
District Bilaspur Chhattisgarh
6. Commissioner, Commercial Tax Department, Department of
Commerical Tax-GST, Mahanadi Bhawan, Mantralaya, Atal
Nagar, Nawa Raipur, District Raipur Chhattisgarh
---- Respondents
WPT No.99/2020
For Petitioner : Mr. Ramit Mehta & Mr. Akash
Shrivastava, Advocates
For Respondents : Mr. Sandeep Dubey, Deputy
Advocate General with Ms.
Richa Shukla, Dy. Government
Advocate
WPT Nos.1/2021 & 2/2021
For Petitioner : Mr. Sumeet Gadodia & Mr. K.
Rohan, Advocates
For Respondents : Mr. Sandeep Dubey, Deputy
Advocate General with Ms.
Richa Shukla, Dy. Govt. Adv.
&
WPT Nos.103, 106, 110, 111, 112 of 2020
For Petitioner : Mr. Anand Dadariya, Advocate
For Respondents : Mr. Sandeep Dubey, Deputy
Advocate General with Ms.
Richa Shukla, Dy. Government
Advocate
C A V Order
Parth Prateem Sahu, J
1. South Eastern Coalfields Limited (SECL) floated different
tenders for the work of Hiring of Heavy Earth Moving Machines
(HEMM) for excavating overburden (all kinds of strata/
overburden in situ), loading into tippers, transportation and
unloading of excavated materials and sprinkling & spreading of
material at the site shown and other related works. Pursuant
to notice inviting tender, petitioners participated in tender
proceedings and on being successful in tender, work order was
issued in their favour on different dates. After issuance of
work order by SECL, petitioners, who are registered dealer
under the provisions of the Chhattisgarh Value Added Tax,
2005 (henceforth 'the Act of 2005') and the Central Sales Tax
Act, 1956 (for short 'the Act of 1956'), submitted amendment
application seeking incorporation of 'High Speed Diesel HSD)'
in their registration certificate for mining activities and granting
permission to petitioners for inter-state purchase of HSD at
concessional tax rates against C-Forms. On making such
application, registration certificates of petitioners were
amended, 'HSD for mining machineries' was added with effect
from respective dates mentioned in C-Forms of respective
petitioners. After lapse of some time, respondent authority
concerned issued letter/notice under Section 49 (1) of the Act
of 2005 calling upon each petitioner individually to explain as
to why entry 'HSD for mining machineries' made in their
registration certificate be not deleted. Petitioners submitted
reply to notice issued under Section 49 (1) of the Act of 2005.
Respondent authorities passed order impugned deleting entry
made in registration certificate of petitioners regarding
purchase of HSD at concessional rate of tax. Consequent to
passing of order of deletion of entry in registration certificate,
respondent authorities have initiated proceeding under Section
10 (b) of the Act of 1956 against the petitioners in WPT
Nos.111/2020, 112/2020 & 2/2021 and passed order under
Section 10 (a) of the Act of 1956 of recovery of tax with penalty
on them. Petitioners in aforementioned writ petitions have
challenged both the orders of respondent authority i.e. order of
deletion of entry included in registration certificate of
petitioners by way of amendment and order imposing penalty
under Section 10 (a) of the Act of 1956. Whereas, petitioners in
other writ petitions bearing WPT Nos. 103/2020, 106/2020,
110/2020 & 1/2021, order deleting entry made in registration
certificate is under challenge. Petitioner in WPT No.99/2020
has challenged the order deleting entry in registration
certificates as also order of penalty.
2. As the facts and issue involved in above writ petitions are
identical, therefore, this Court finds it appropriate to decide the
same by this common order.
3. Substantial relief claimed by respective petitioners in these writ
petitions are as follows:-
WPT No.99/2020;-
"10.1. Allow the present writ petition with costs.
10.2. Quash and set aside the impugned Notice dated
01.10.2020 issued by respondent No.1.
10.3. Quash and set aside the impugned order dated
14.10.2020 passed by respondent No.2.
10.4. Call for the record...."
WPT No.103/2020;-
"10.1. This Hon'ble Court may kindly be pleased to call
for the entire record from the respondents
pertaining to issuance of the order dated
12.10.2020 (Annexure P-1).
10.2. This Hon'ble Court may kindly be pleased to
issue an appropriate writ quashing and setting
aside the order dated 12.10.2020 (Annexure P-1)
10.3. This Hon'ble Court may kindly be pleased to
issue an appropriate writ directing the
respondent department to restore the
registration certificate of the petitioner with insertion of
words 'High Speed Diesel' and 'mining' under the
Chhattisgarh Value Added Sales Tax Act and
Central Sales Tax Act as it stood vide order
dated 15.05.2020 and dated 15.05.2020
respectively.
10.4. Any other relief (s)/ order (s)/direction (s) in
favour of petitioner, which this Hon'ble Court
may deem fit and proper in the facts and
circumstances of the case, in the interest of
justice.
10.5. Cost of petition."
WPT No.106/2020;-
"10.1. This Hon'ble Court may kindly be pleased to call
for the entire record from the respondents
pertaining to issuance of the order dated
12.10.2020 (Annexure P-1).
10.2. This Hon'ble Court may kindly be pleased to
issue an appropriate writ quashing and setting
aside the order dated 12.10.2020 (Annexure P-1)
10.3. This Hon'ble Court may kindly be pleased to
issue an appropriate writ directing the
respondent department to restore the registration
certificate of the petitioner with insertion of words
'High Speed Diesel' and 'mining' under the
Chhattisgarh Value Added Sales Tax Act and
Central Sales Tax Act as it stood vide order dated
03.07.2019 and dated 15.07.2019 respectively.
10.4. Any other relief (s)/ order (s)/direction (s) in
favour of petitioner, which this Hon'ble Court may
deem fit and proper in the facts and
circumstances of the case, in the interest of
justice.
10.5. Cost of petition."
WPT No.110/2020;-
"10.1. This Hon'ble Court may kindly be pleased to call
for the entire record from the respondents
pertaining to issuance of the order dated
12.10.2020 (Annexure P-1).
10.2. This Hon'ble Court may kindly be pleased to
issue an appropriate writ quashing and setting
aside the order dated 12.10.2020 (Annexure P-1)
10.3. This Hon'ble Court may kindly be pleased to
issue an appropriate writ directing the
respondent department to restore the registration
certificate of the petitioner with insertion of words
'High Speed Diesel' and 'mining' under the
Chhattisgarh Value Added Sales Tax Act and
Central Sales Tax Act as it stood vide order dated
12.05.2019 and dated 24.07.2019 respectively.
10.4. Any other relief (s)/ order (s)/direction (s) in
favour of petitioner, which this Hon'ble Court may
deem fit and proper in the facts and
circumstances of the case, in the interest of
justice.
10.5. Cost of petition."
WPT No.111/2020;-
"10.1.This Hon'ble Court may kindly be pleased to call
for the entire record from the respondents
pertaining to issuance of the order dated
29.10.2020 (Annexure P-1).
10.2. This Hon'ble Court may kindly be pleased to
issue an appropriate writ quashing and setting
aside the order dated 29.10.2020 (Annexure P-1)
10.3. Any other relief (s)/ order (s)/direction (s) in
favour of petitioner, which this Hon'ble Court may
deem fit and proper in the facts and
circumstances of the case, in the interest of
justice.
10.4. Cost of petition."
WPT No.112/2020;-
"10.1.This Hon'ble Court may kindly be pleased to call
for the entire record from the respondents
pertaining to issuance of the order dated
14.10.2020 (Annexure P-1).
10.2. This Hon'ble Court may kindly be pleased to
issue an appropriate writ quashing and setting
aside the order dated 14.10.2020 (Annexure P-1)
10.3. Any other relief (s)/ order (s)/direction (s) in
favour of petitioner, which this Hon'ble Court may
deem fit and proper in the facts and
circumstances of the case, in the interest of
justice.
10.4. Cost of petition."
WPT No.1/2021;-
"10.1. This Hon'ble Court may kindly be pleased to call
for the entire record from the respondents
pertaining to issuance of the order dated
14.10.2020 (Annexure P-1).
10.2. This Hon'ble Court may kindly be pleased to
issue an appropriate writ quashing and setting
aside the order dated 14.10.2020 (Annexure P-1)
10.3. This Hon'ble Court may kindly be pleased to
issue an appropriate writ directing the
respondent department to restore the registration
certificate of the petitioner with insertion of words
'High Speed Diesel' and 'mining' under the
Chhattisgarh Value Added Sales Tax Act and
Central Sales Tax Act as it originally stood.
10.4. Any other relief (s)/ order (s)/direction (s) in
favour of petitioner, which this Hon'ble Court may
deem fit and proper in the facts and
circumstances of the case, in the interest of
justice.
10.5. Cost of petition."
WPT No.2/2021;-
"10.1.This Hon'ble Court may kindly be pleased to call
for the entire record from the respondents
pertaining to issuance of the order dated
15.10.2020 (Annexure P-1).
10.2. This Hon'ble Court may kindly be pleased to
issue an appropriate writ quashing and setting
aside the order dated 15.10.2020 (Annexure P-1)
issued by respondent and declaring the same as
arbitrary, illegal and against the provisions of the
CST Act. (Annexure P-1)
10.3. Any other relief (s)/ order (s)/direction (s) in
favour of petitioner, which this Hon'ble Court may
deem fit and proper in the facts and
circumstances of the case, in the interest of
justice.
10.4. Cost of petition."
4. Mr. Ramit Mehta, learned counsel for petitioner in WPT
No.99/2020 would submit that petitioner M/s Sunil Kumar
Agrawal is a proprietorship firm duly registered under the Act of
1956 and the Act of 2005, having registration certificates dated
28.05.2004 & 1.4.2000. Petitioner deals in the business of
undertaking works contract/order for deploying Heavy Earth
Movers Machinery (HEMM) for execution of tasks/activities like
overburden extraction and removal in mining, constructions of
roads, bridges, canals, river channels etc. SECL invited
tenders from eligible contractors for execution of
aforementioned work. In response to notice inviting tender,
petitioner submitted bid and was declared successful. After
becoming successful in tender process, petitioner submitted an
application before the respondent No.4-Commercial Tax
Officer, Circle-II, Ragiarh for amending C-Forms issued to
petitioner under the Act of 1956 & the Act of 2005. Based on
application, petitioner was issued amended C-Forms adding
and entering 'HSD for mining machineries'. Based on entry
made in registration certificate, petitioner started purchasing
inter-state HSD at concessional rate of tax. Suddenly
respondent Department issued notice under Section 49 (1) of
the Act of 2005 to the petitioner calling upon to explain as why
entry made in registration certificate of petitioner be not
deleted. Petitioner submitted reply to said notice, but
respondent No.2-Deputy Divisional Commissioner,
Commercial Tax, Bilaspur Division No.2 overlooking contents
of reply and provisions of law, passed impugned order
14.10.2020 and deleted entry in registration certificate of
petitioner regarding 'mining and HSD' w.e.f. 5.2.2020.
Consequent thereto, respondent No.4 passed amended order
dated 29.10.2020 (Annexure P-19) for recovery of tax with
penalty of Rs.1,96,08,045/- under Section 10(a) of the Act of
1956 and directing petitioner to deposit the same in
government treasury within 30 days from receipt of order.
He submits that after issuing notice under Section 49 (1)
of the Act of 2005 to petitioner, the order dated 14.10.2020 has
been passed. As per provisions of Section 49 (1), no order
prejudicial to the interest of the dealer or person can be
passed. If for any reason any order prejudicial to the interest
of a dealer or person is to be passed, it can only be after
issuance of notice under Section 49 (3) of the Act of 2005,
after conducting enquiry and giving reasonable opportunity of
hearing to registered dealer/ person concerned. In case at
hand, no notice under Section 49 (3) of the Act of 2005 was
issued to petitioner before passing impugned order which is
prejudicial to interest of petitioner. Notice, which is placed on
record as Annexure P-13, only mentions 'notice under Section
49 (1) of the Act of 2005'. Hence, the impugned order deleting
the words 'mining' and 'HSD' from registration certificates of
petitioners is in violation of the principles of natural justice,
hence per se illegal. Notice (Annexure R-3) submitted along
with reply to writ petition is an interpolated document. In this
notice, sub-section typed within bracket i.e. '1', is changed to
'3' by handwriting. Proceedings against petitioner based on
issuance of notice under Section 49 (1) of the Act of 2005
cannot be termed to be proceedings initiated under Section 49
(3) of the Act of 2005. Under Rule 61 of the CG Value Added
Rules, 2006 (for short 'the Rules of 2006') notice is required to
be issued in Form-55, appended to the Rules of 2006. No
notice in Form-55 was ever issued to petitioner. If Statute
provides for issuance of notice under a particular Format /
Form, then authority, if at all decided to take any action against
petitioner, is required to issue notice to petitioner in prescribed
Format under Rule 61 of the Rules of 2006. He contended
that even if for the sake of argument, admitting issuance of
notice under Section 49 (3) of the Act of 2005, then also notice
under Section 49 (3) could have been issued only in Form-55
as prescribed under the Rules of 2006. The Assistant
Commissioner, Raigarh Circle-1, Raigarh in letter dated
4.9.2020 (Annexure P-12) has also mentioned that HSD is
being used in mining, which clearly shows that petitioner was
using HSD for mining work. Respondent Department
misunderstood the nature of work mentioned in the Work Order
issued to petitioner by SECL. Removing of strata and
overburden are integral part of mining.
It is further contended that Section 8 of the Act of 1956
deals with rates of tax on sales in the course of inter-State
trade or commerce. Sub-section (1) prescribes rate of tax
payable if the goods of description referred to in sub-section
(3) of Section 8 is in the course of inter-state trade or
commerce. Petitioner is engaged in mining activities. The
words 'in mining' are used under clause (b) of sub-section (3)
of Section 8 of the Act of 1956. Goods specified for the
purpose of work, as mentioned in sub-section (3), entitle the
petitioner for concessional rate of tax and therefore, petitioner
was charged with concessional rate of tax on inter-state
purchase/trade of 'high speed diesel' to carry out mining
activities. Respondent authorities have mentioned in
document/letter issued in the course of correspondences that
high-speed diesel (HSD) purchased by petitioner is being used
for mining activities. SECL - employer had also issued
certificate to the effect that nature of work awarded to petitioner
comes within the category of 'mining activity', even then
respondent Department had illegally and arbitrarily passed
impugned orders. Nature of work awarded to the petitioner is
one of the main process of mining in winning of coal. He
referred to definition of words 'mining' & 'extract' given in the
Black's Law Dictionary. Extraction and removal of overburden
is preliminary mandatory operation, it is also a process of
winning of mineral. In support of his contention, he relied upon
decision of Hon'ble Supreme Court in case of Bhagwan Dass
vs. State of UP & ors, reported in (1976) 3 SCC 784.
He also referred to definition of 'mining operations' given
in Section (3) (d) of the Mines and Minerals (Regulation and
Development) Act, 1967 and contended that definitions of
'mine' and 'mining operations' are very wide and sufficient to
comprehend every activity by which a mineral is extracted or
obtained. In support of his contention he placed his reliance
on the judgment of Hon'ble Supreme Court in case of Bharat
Cooking Coal Ltd. vs. State of Bihar & ors, reported in
(1990) 4 SCC 557. He further submits that respondent
authorities have erroneously interpreted provisions of Section
8 (3) (b) of the Act of 1956, which is an attempt to rewrite a
piece of legislation. Demand made while passing impugned
order by respondent authority classifying the word 'mining' as
'in mining' and 'for mining' is misinterpretation of words.
Unless and until there is extraction of overburden and its
removal, there cannot be winning/extraction of coal, therefore,
nature of work awarded to petitioner is one of the process of
mining. Petitioner made request to respondent Department for
amending registration certificates by adding high-speed diesel
(HSD) in list of specified goods for mining activities. He also
relied upon judgment of Hon'ble Supreme Court in case of
Indra Singh & Sons v. S.T.O., reported in (1966) 17 STC 510
(SC). Respondent authorities have mentioned that petitioner
had misused C-Forms, which is wrong and per se illegal.
Respondent authorities could not able to point out any mens
rea, hence penalty ought not to have been imposed.
Reliance is also placed on judgment rendered in case of
Answar Hussain Khan vs. Mohd. Shafi & ors, reported in
(2001) 8 SCC 540; order dated 25.7.2019 passed by Division
Bench of this High Court in WPC No.1120/2019 and order
dated 13.4.2017 passed by Co-ordinate Bench of this Court in
WPT No.55/2017.
5. Mr. Sumeet Gadodiya, learned counsel for petitioners in WPT
Nos.1/2021 & 2/2021 while adopting submissions of learned
counsel for petitioner in WPT No.99/2020, submitted that
notice under Section 49 (1) of the Act of 2005 is signed and
issued by respondent No.2-Joint Commissioner, State Tax
Bilaspur, Division No.2, Bilaspur, as appearing from notice
(Annexure P-13). From the heading of notice filed along
with reply as Annexure R-2, it is apparent that it is an
'amended notice'. Further, in this notice it is typed as '43 (1)',
whereas correction is made by handwriting to figure '1' as '3'
[49(3)] by overwriting, which is clearly reflecting from copy of
notice annexed as Annexure R-2. The Prescribed Authority for
issuance of notice under Section 49 (1) or (3) of the Act of
2005 is the 'Deputy Commissioner', whereas initial notice was
issued by the Joint Commissioner and subsequently the words
'Deputy Commissioner, Commercial Tax' were added by
handwriting and putting slash (/). As per Rule 55 of the Rules
of 2006, the Commissioner may delegate powers conferred
upon him to other officer for the purpose of taking any action
under the provisions of the Act of 2005, described in table
given in Rule 55. It is mentioned in Sr. No.13 of the column
specified in Rule 55 that the Commissioner may delegate
'power of revision' conferred under Section 49 of the Act of
2005 upon the Deputy Commissioner. Judgment relied upon
by respondent Department for deleting entries regarding 'HSD'
and 'mining' from C-Forms of petitioner is based on the
judgment of Hon'ble Supreme Court in case of Indra Singh
(supra), which is not applicable to the facts of present case.
Penalty under Section 10 of the Act of 1956 could not be
imposed mentioning provisions of Section 10 (b) & (d) of the
Act of 1956. Petitioner has not made false representation at
the time of purchasing goods covered under certificates of
registration and it is not the case / allegation of using goods for
any other purpose. Pursuant to application submitted by
petitioner for adding entries by amending registration
certificates, respondent authorities entered words 'mining work'
and 'HSD' and therefore, penalty cannot be imposed only on
the ground of deletion of those additional entries made in
registration certificate. He also contended that deletion could
not be given effect to retrospectively. Penalty from back date
is also not permissible. In support of his contention, he places
reliance upon judgment in the case of Commercial of Sales
Tax, Uttar Pradesh vs. Sanjiv Fabrics, reported in (2010) 9
SCC 630. For imposing penalty under Section 10 (a) of the
Act of 1956, mens rea is a condition precedent, which is not
the allegation against petitioner by respondents. Case law
relied upon by respondents for deleting entries 'in mining' and
'HSD' from registration certificates is entirely on different facts.
Referring to Paragraph -4 of judgment in Indra Singh's case
(supra) he submits that question for consideration before
Hon'ble Supreme Court was that motor trucks, furniture,
sanitary fittings, medicines, insecticides to be goods intended
for use in mining and that has been answered in negative in
Paragraph 18 of the judgment. The Goods and Service Tax
Act came into force in the year 2017, but petrol, diesel etc.
have not been included under GST and for the purpose of
imposition of tax, HSD, petrol is governed by old Central Sales
Tax Act and Value Added Tax Act. In support of his contention,
he referred to decision of this High Court dated 18.5.2018 in
WPT No.83/2018, parties being Shree Raipur Cement Plant
vs. State of CG & ors. Under the Finance Act, 2021, which
came into force w.e.f. 1.4.2021, HSD cannot be purchased
under concessional rate of tax.
Work awarded to petitioner is primary and initial work of
mining activities. For the purpose of winning of mineral like
'coal' in case at hand, removal of overburden is integral part of
mining.
On the issue of scope of mining activity, learned counsel
places his reliance on the judgment rendered in Bhagwan
Dass v. State of UP & ors reported in (1976) 3 SCC 784;
Bharat Cooking Coal Ltd. vs. State of Bihar & ors reported in
(1990) 4 SCC 557; State of Meghalaya vs. All Dimsa Student
Union & ors reported in (2019) 8 SCC 177; Chougle & Co. Pvt.
Ltd. vs. UOI reported in (1971) 3 SCC 162; Sadbhav
Engineering Ltd. vs. State of UP (2014) SCC Online All 13564;
Assessing Authority-cum-Excise and Taxation Officer, Gurgaon
and another vs. East India Cotton Mfg. Co. Ltd., Faridabad
reported in (1981) 3 SCC 531.
On the issue of rule of interpretation of statutes, learned
counsel relied upon judgment in case of Anwar Hasan Khan
vs. Mohd. Shafi and other reported in (2001) 8 SCC 540.
On the issue of levy of penalty under Section 10A of the
Act of 1956, he relied upon judgment in case of Commissioner,
Trade Tax UP Lucknow vs. Project Technologist Pvt. Ltd.
reported in (2012) 48 VST 406 (All); KNI Eqbal v. State of Tamil
Nadu reported in (1996) 101 STC 354; Commissioner of Sales
Tax UP Lucknow vs. Kashi Prasad Ram Chandra Lal reported
in (2001) 122 STC 567; State of Tamil Nadu v. Gemini Studios
reported in (1975) 36 STC 357 (Mad); Commissioner of Sales
Tax Madhya Pradesh, Indore vs. Bombay Garage reported in
(1984) 57 STC 67; Commercial Taxes Officer vs. Foreign
Import & Export Association reported in 1979 SCC Online Raj
235 & CTO vs. Foreign Import and Export Association reported
in (1994) 95 STC 101.
6. Mr. Anand Dadariya, learned counsel for petitioners in WPT
Nos.103, 106, 110, 111 & 112 of 2020 while adopting
submissions made by Mr. Ramit Mehta & Mr. Sumeet Gadodia,
Advocate for petitioners in respective writ petitions, contended
that petitioners being successful in tender process initiated by
SECL, submitted application before the respondent
Department seeking amendment in their registration
certificates issued under the State Sales Tax Act and Central
Sales Tax Act. In the application they have specifically
mentioned the nature of work which was awarded by SECL.
After verification, respondent Department amended registration
certificates by entering the words 'mining' and 'high-speed
diesel (HSD)' in registration certificate. Issue involved in these
writ petitions is whether proper notice was issued to petitioners
for Sales Tax (Central) or not? The authority who had issued
notice under Section 49 (1) of the Act of 2005 is not competent
to issue such notice. Section 3 of the Act of 2005 prescribes
'Taxing Authorities and other officers'. Joint Commissioner is
not prescribed under Section 3 to be a taxing authority/officer.
Notice issued to petitioners is under the signature of Joint
Commissioner, as such, it is without jurisdiction. Section 3 (d)
of the Mines and Minerals (Regulation and Development) Act,
1957 defines 'mining operations'. Section 2 (i) (j) of the Mines
Act, 1952 defines 'mines' which means any excavation where
any operation for the purpose of searching for or obtaining
minerals has been or is being carried on. 'Mining Operations'
means any operation undertaken for the purpose of winning
any mineral. The work awarded to petitioners is primary and
initial work of mining activities. For the purpose of winning of
mineral like 'coal' in case at hand, removal of overburden is
integral part of mining. Mining activities do not mean
extraction of coal only, but all activities of extraction.
Amendment/ addition in registration certificate of petitioners is
made on 12.5.2019. It was deleted on 12.10.2020 from back
date, which is not permissible under law. Amendment/
modification or correction in registration certificate can be by
the Commercial Tax Officer only. It is argued that registration
of dealer is regulated under Sections 16 to 18 of the Act of
2005. Section 16 deals with application for registration. Rule 2
(1) (j) of the Rules of 2006 defines 'registering authority' which
means appropriate Commercial Tax Officer or any officer
appointed under section 3 to whom the Commissioner has
delegated his power. Amendment or deletion or removal of any
goods specified in registration certificate can be done only by
registering authority. Notice as alleged was not issued by
registering authority. Employer who awarded work to the
petitioner i.e. SECL, issued certificate mentioning that work of
removal of overburden and strata for extraction of coal falls
under mining activities. Impugned action on the part of
respondents is arbitrary and discriminatory. C-Forms are also
issued to Sindhu Traders, who is engaged in similar work with
same organization i.e. SECL, mentioning 'in mining' and 'HSD'.
He next contended that penalty cannot be imposed upon
petitioners. Adopting submissions of learned counsel for
petitioners in other connected petitions, he submits that for
imposing penalty mens rea is pre-condition which is lacking in
case of present petitioners. Apart from the decisions relied
upon by learned counsel for petitioners in other connected writ
petition, he places his reliance on the decisions of Hon'ble
Supreme Court in (1996) 17 STC 510 Anwar Hassan Khan vs.
Mohd. Shafi & ors reported in (2001) 8 SCC 540; Civil Appeal
No.2217/2011, Commercial Tax Officer v. M/s Bombay
Machinery Store; State of UP vs. Vam Organic Chemicals
reported in (2010) 6 SCC 222; Pepsico India Holdings Pvt. Ltd.
vs. State of Kerala & ors reported in (2009) 15 STJ 245 (SC).
7. Mr. Sandeep Dubey, learned Deputy Advocate General and
Mrs. Richa Shukla, Deputy Government Advocate for
respondents raised objection with regard to maintainability of
all these writ petitions on the ground of availability of
efficacious alternative remedy of filing appeal under Section 49
(4) of the Act of 2005. It is contended that Joint Commissioner
initially issued notices under Section 49 (1) of the Act of 2005,
however, on the same date amended notices under Section 49
(3) of the Act of 2005 were issued to petitioners. In amended
notices there is mention of 'Deputy Commissioner' along with
Joint Commissioner', who is Prescribed Authority under law for
correcting or amending registration certificate. Referring to
Notification issued by the State Government dated 14.7.2017,
it is contended that one authority can act in dual capacity.
When an authority exercises powers under the Act of 2005, it
invokes jurisdiction of Joint Commissioner and while exercising
powers under the Act of 1956, he acts as Deputy
Commissioner. Amended notice has been sent mentioning
provision under Section 49 (3) of the Act of 2005 and authority
to be 'Deputy Commissioner' on the registered email address
of petitioners. Hence, submission of learned counsel for
respective petitioners that they were not served with notice
under Section 49 (3) of the Act of 2005 is not sustainable.
Detailed reply to notice under Section 49 (1) of the Act of 2005
was submitted by respective petitioners raising all grounds as
are available to them. Notice issued to petitioners is not for
enhancing assessment and penalty thereupon or both, it is for
amendment in registration certificate, hence Rule 6 of the
Rules of 2006 will not apply to facts of present cases and as
such, there was no requirement of issuing notice in Form-55
appended to Rule 6 of the Rules of 2006. Rule 2 (1) (j) of the
Rules of 2006 is not having any application as the order was
passed by Deputy Commissioner. SECL is not having any
authority to issue any certificate because SECL itself is a
lessee of land over which permission for mining operations
was granted. Petitioners are not having any mining license or
they have not taken any land on lease for mining and
extraction of minerals. Referring to Page No.80 of writ petition,
it is argued that in base price of diesel, GST is included in
value of work awarded. Diesel price mentioned in documents
placed on record includes 35% VAT. Petitioners have not
produced any entry register showing consumption of diesel
purchased for mining activities. Notice has been issued to the
petitioners in accordance with law, therefore, petitioners could
have very well approached the Appellate Authority. Removal of
overburden will not fall within the purview of mining activity.
Proceedings initiated by respondents are in accordance with
law which do not call for any interference.
8. In reply to submissions of learned counsel for the State, Mr.
Anand Dadariya, learned counsel for petitioners in respective
writ petitions submits that amended notices were received with
correction but there was no new despatch number to the
alleged amended notices, the same were also not in
prescribed format. If amended notice is issued subsequently
by authority mentioning any of portion of earlier notice, then it
will be deemed to be a fresh notice, requiring fresh despatch
by authority. Under Section 18 of the Act of 2005 it is only the
Commercial Tax Officer who can pass orders. In application
seeking amendment in registration certificate, nature of work is
specifically mentioned. Application was recommended vide
Annexure P-8. It is contended that even if for the sake of
argument, it is admitted that notice is issued under Section 49
(3) of the Act of 2005, the respondent authorities have not
provided any opportunity of hearing to the petitioners, who are
registered dealer. Reasonable opportunity of hearing, as
provided under Section 49 (3) of the Act of 2005, means
personal hearing to the registered dealer (here the petitioners)
which is absent in cases at hand. Notice issued under Section
49 (1) is under both Sales Tax i.e. State and Central. Referring
to Annexure P-13, he submits that desptach number
mentioned is '1096' in notice issued under Section 49 (1) dated
1.10.2020 bears Revision Case No.145/KC-I/2020 (State).
Another notice issued on the same date bears despatch
No.1097 for Revision Case No.146/KC-I/2020 (Central).
Respondent authorities have issued two separate notices
under both Sales Tax statutes i.e. State & Central under
Section 49 (1). Amended notice filed by respondent State
along with reply as Annexure R-2, if at all issued in accordance
with law, bears same desptach number i.e. '1096'.
Respondents have not placed on record amended notice if
issued for the revision/amendment of registration certificate
under the Act of 1956. Petitioners are having two separate
registrations, one under the Act of 2005 and another under the
Act of 1956. Question involved of getting HSD under
concessional rate of tax is of inter-state purchase, therefore, its
registration certificate under the Act of 1956 is subject matter.
Respondents have not considered the grounds of pleadings in
reply to notice under Desptach No.1097, which is under
Section 49 (1) of the Act of 2005 and passed the impugned
orders. Non-consideration of reply amounts to violation of
principles of natural justice. In support of his contention he
places his reliance on the judgment of Hon'ble Supreme Court
in Assistant Commissioner, Commercial Tax Department
Works Contract and Leasing, Kota v. Shukla & Brothers
reported in (2010) 4 SCC 785.
It is contended that petitioners appeared in the
proceedings initiated for imposition of penalty on the date fixed
and sought time which was granted by respondents. However,
thereafter no notice was issued intimating next date for
appearance. Specific ground in this regard has been taken in
writ petition. Respondents have in fact mentioned in the order
that after submission of reply, petitioner chose not to appear in
the proceedings, which is incorrect. With regard to objection
raised by learned counsel for the State regarding
maintainability of writ petitions, he places reliance upon the
judgment of Hon'ble Supreme Court in case of Commissioner
of Central Excise vs. Singhai Sushil Kumar reported in
(2016) 13 SCC 223.
Under the scheme of tax it is for the selling dealer to
charge tax. Initially, petitioner in WPT No.1/2021 filed an
application seeking amendment in registration certificate which
was not considered. Petitioner filed writ petition before this
Hon'ble Court and only thereafter amendment in registration
certificate was done. Online portal was not opened for getting
benefit of purchase of goods mentioned in registration
certificate, therefore, petitioner again filed writ petition bearing
number WPT 37/2020.
9. I have heard learned counsel for parties and perused the
documents brought on record by respective parties.
10. So far as submission of learned counsel for respondents that
these writ petitions are not maintainable in view of availability
of efficacious alternative statutory remedy of filing of appeal
under Section 49 (4) of the Act of 2005 is concerned, normally
writ petitions filed by-passing alternate statutory remedy
available under the law are not to be entertained, but there is
no absolute bar. The bar created by Courts is self-restrained.
Writ petition filed directly before the High Court under Article
226 of the Constitution of India can be entertained in cases
where petitioner / petitioners can able to show that, (i) writ
petition has been filed for enforcement of any of fundamental
rights; (ii) where there has been violation of principles of
natural justice; (iii) where order or proceeding is absolute
without jurisdiction; or vires of an Act is challenged. Hon'ble
Supreme Court in case of Harbanslal Sahnia v. Indian Oil
Corpn. Ltd. reported in (2003) 2 SCC 107 held thus:-
"7.So far as the view taken by the High Court
that the remedy by way of recourse to
arbitration clause was available to the
appellants and therefore the writ petition filed
by the appellants was liable to be dismissed,
suffice it to observe that the rule of exclusion
of writ jurisdiction by availability of an
alternative remedy is a rule of discretion and
not one of compulsion. In an appropriate
case in spite of availability of the alternative
remedy, the High Court may still exercise its
writ jurisdiction in at least three
contingencies: (i) where the writ petition
seeks enforcement of any of the
Fundamental Rights; (ii) where there is failure
of principles of natural justice or, (iii) where
the orders or proceedings are wholly without
jurisdiction or the vires of an Act and is
challenged [ See Whirlpool Corporation v.
Registrar of Trade Marks, Mumbai and Ors.
(1998) 8 SCC 11]. The present case attracts
applicability of first two contingencies.
Moreover, as noted, the petitioners'
dealership, which is their bread and butter
came to be terminated for an irrelevant and
non-existent cause. In such circumstances,
we feel that the appellants should have been
allowed relief by the High Court itself instead
of driving them to the need of initiating
arbitration proceedings.
Recently, in case of Assistant Commissioner of Sales Tax &
others vs. Commercial Steel Limited reported in 2021 SCC
Online SC 884, Hon'ble Supreme Court while dealing with
question of maintainability of writ petition has held that the
High Court having regard to the facts of the case, can exercise
discretion to entertain or not to entertain writ petition. An
alternative remedy is not an absolute bar for invoking writ
jurisdiction of the High Court under Article 226 of the
Constitution of India and in cases where the authority against
whom writ is filed is shown to have had no jurisdiction or had
usurped jurisdiction without any legal foundation, writ petition
can be entertained.
11. From the aforementioned rulings of Hon'ble Supreme Court, it
is apparent that only because of availability of alternative
efficacious remedy of appeal under the law, writ petition under
Article 226 of the Constitution of India may not be dismissed
and the Courts while exercising jurisdiction under Article 226 of
the Constitution of India can entertain writ petition if one of the
grounds, as discussed in above rulings, is made out.
12.In the case at hand, petitioners, who are registered dealers
under the Act of 2005 as also the Act of 1956, have been
awarded contract by South Eastern Coalfields Ltd. for
execution of work of excavating overburden (all kinds of
strata/ overburden in situ), loading into tippers, transportation
and unloading of excavated materials; sprinkling & spreading
of material at the site shown and other related works, awarded
to them by South Eastern Coalfields Ltd. under contract. After
award of contract, petitioners submitted application seeking
inclusion of 'high-speed diesel (HSD) and 'mining' in their
registration certificates under the Act of 2005 and in certificate
under the Act of 1956. Accordingly, their registration
certificates were amended. Thereafter, petitioners made
interstate purchase of 'high speed diesel' for execution of
contract work within territorial jurisdiction of State of
Chhattisgarh. Subsequently, entries 'mining' and 'high-speed
diesel' were deleted by respondent Department and the same
has been challenged by petitioners by filing these writ
petitions. The petitioners have raised the ground that
respondent Department had not issued proper notice under
Section 49 (3) of the Act of 2005 for deleting entries 'mining'
and 'high-speed diesel (HSD)' from their registration
certificates and deleted entries 'mining' and 'high-speed diesel
(HSD)' from the registration certificates of petitioners issued
under the Act of 1956. In some case, after deletion of entries
from registration certificate, consequential order of recovery of
tax with penalty has been passed against petitioners
concerned. Question for consideration is whether in the above
facts of the case, petitions can be entertained in view of the
exception set out by Hon'ble Supreme Court in Harbans Lal
Sinha's case (supra). and Commercial Steel Ltd. (supra)
13.The Act of 2005 is with respect to levy of tax on sale and
purchase of goods in the State of Chhattisgarh. In case at
hand, issue of levy of tax is on goods purchased by registered
dealer from outside the State (inter-state purchase) and it will
be governed by the Act of 1956. Section 2 (f) of the Act of 1956
defines 'registered dealer', which means a dealer registered
under section 7. Section 6 deals with liability to tax on inter-
State sales. Section 7 deals with 'registration of dealer' and
sub-section (1) of Section 7 is extracted below for ready
reference:-
"(1) Every dealer liable to pay tax under this Act
shall, within such time as may be prescribed for the
purpose, make an application for registration under
this Act to such authority in the appropriate State as
the Central Government may, by general or special
order, specify, and every such application shall
contain such particulars as may be prescribed."
Section 8 of the Act of 1956 provides 'rates of tax on sales in
the course of Inter-State trade or commerce and relevant
portion of Section 8 is reproduced below for ready reference;-
"8. Rates of tax on sales in the course of Inter-State
trade or commerce.-
(1) Every dealer, who in the course of inter-State
trade or commerce,
(a) sells to be Government any goods or
(b) sells to a registered dealer other than the
Government, goods of the description referred
to in sub-section (3), shall be liable to pay tax
under this Act, which shall be6 [four per cent] of
his turnover.
(2) The tax payable by any dealer on his turnover in
so far as the turnover or any part thereof relates to
the sale of goods in the course of inter-state trade or
commerce not falling within sub-section (1)-
(a) in the case of declared goods, shall be calculated
at twice the rate applicable to the sale or purchase of
such goods inside the appropriate State; and
(b) in the case of goods other than declared goods,
shall be calculated at the rate of ten percent or at the
rate applicable to the sale or purchase of such goods
inside the appropriate State, whichever is higher.
an for the purpose of making any such calculation
any such dealer shall be deemed to be a dealer
liable to pay tax under the sales tax law of the
appropriate State, notwithstanding that he, in fact,
may not be so liable under that law.
2A.Notwithstanding anything contained in sub-
section (1A) of section 6 of sub-section (1) for clause
(b) of sub-section (2) of this section, the tax payable
under this Act by a dealer on his turnover in so far as
the turnover or any part thereof relates to the sale of
any goods, the sale or, as the case may be, the
purchase of which is, under the sales tax law of the
appropriate State, exempt from tax generally or
subject to tax generally at a rate which is lower than
four percent (whether called a tax or fee or by any
other name), shall be nil, or as the case may be,
shall be calculated at the lower rate.
(3) The goods referred to in clause (b) of sub
section (1)-
(a) [Omitted]
(b) are goods of the classes specified in the
certificate of registration of the registered
dealer purchasing the goods as being
intended for resale by him or subject to any
rules made by the Central Government in this
behalf, for use by him in the manufacture or
processing of goods for sale or in mining or in
the generation or distribution of electricity or
any other form of power...."
14. Under sub-section (3) (b) of Section 8 of the Act of 1956, there
is mention of goods of classes specified in the certificate of
registration of a registered dealer purchasing goods for use by
him in the manufacture or processing of goods for sale or in
mining or in the generation or distribution of electricity or any
other form of power. Petitioners being registered dealers
under the Act of 1956 made inter-state purchase of High-
Speed Diesel (HSD) for its use in the work of excavating
overburden (all kinds of strata/ overburden in situ), loading into
tippers, transportation and unloading of excavated materials.
15. Section 9 of the Act of 1956 talks about levy and collection of
tax and penalties and relevant portion of which is quoted
below:-
"(1) The tax payable by any dealer under this Act on
sales of goods effected by him in the course of inter-
State trade or commerce, whether such sales fall within
clause (a) or clause (b) of section 3, shall be levied by
the Government of India and the tax so levied shall be
collected by that Government in accordance with the
provision of sub-section (2), in the State from which the
movement of the goods commenced.
Provided that, in the case of a sale of goods
during their movement from one State to another, being
a sale subsequent to the first sale in respect of the
same goods and being also a sale which does not fall
within sub-section (2) of section 6, the tax shall be
levied and collected-
(a) where such subsequent sale has been
effected by a registered dealer, in the State from
which the registered dealer obtained or, as the
case may be, could have obtained, the form
prescribed for the purposes of clause (a) of sub-
section (4) of section 8 in connection with the
purchase of such goods; and
(b) where such subsequent sale has been
effected by an unregistered dealer, in the State
from which such subsequent sale has been
effected.
(2) Subject to the other provisions of this Act and the
rules made thereunder, the authorities for the time
being empowered to assess, re-assess, collect and
enforce payment of any tax under general sales tax law
of the appropriate State shall, on behalf of the
Government of India, assess re-assess, collect and
enforce payment of tax, including any 4[interest or
penalty,] payable by a dealer under this Act as if the tax
or 4[interest or penalty] payable by such a dealer under
this Act is a tax or 4[interest or penalty] payable under
the general sales tax law of the State; and for this
purpose they may exercise all or any of the powers they
have under the general sales tax law of the State; and
the provisions of such law, including provisions relating
to returns, provisional assessment, advance payment of
tax, registration of the transferee of any business,
imposition of the tax liability of a person carrying on
business on the transferee of, or successor to, such
business, transfer of liability of any firm or Hindu
undivided family to pay tax in the event of the
dissolution of such firm or partition of such family,
recovery of tax from third parties, appeals, reviews,
revisions, references, 5[refunds, rebates, penalties,]
6[charging or payment of interest,] compounding of
offences and treatment of documents furnished by a
dealer as confidential, shall apply accordingly: Provided
that if in any State or part thereof there is no general
sales tax law in force, the Central Government may, be
rules made in this behalf make necessary provision for
all or any of the matter specified in this sub-section.
[(2A) All the provisions relating to offences, interest and
penalties (including provisions relating to penalties in
lieu of prosecution for an offence or in addition to the
penalties or punishment for an offence but excluding
the provisions relating to matters provided for in section
10 and 10A) of the general sales tax law of each State
shall, with necessary modifications, apply in relation to
the assessment, re-assessment, collection and the
enforcement of payment of any tax required to be
collected under this Act in such State or in relation to
any process connected with such assessment, re-
assessment, collection or enforcement of payment as if
the tax under this Act were a tax under such sales tax
law.]
[(2B) If the tax payable by any dealer under this Act is
not paid in time, the dealer shall be liable to pay interest
for delayed payment of such tax and all the provisions
for delayed payment of such tax and all the provisions
relating to due date for payment of tax, rate of interest
for delayed payment of tax, of the general sales tax law
of each State, shall apply in relation to due date for
payment of tax, rate of interest for delayed payment of
tax, and assessment and collection of interest for
delayed payment of tax under this Act in such States as
if the tax and the interest payable under this Act were a
tax and an interest under such sales tax law."
16. Under sub-section (2) of Section 9 of the Act of 1956, it is
prescribed that the authority for the time being empowered to
assess, collect and enforce payment of any tax under the
General Sales Tax Law of the appropriate State shall, on
behalf of the Government of India, assess, reassess, collect
and enforce payment of tax. The petitioners had issued C-
Forms under Rule 12 of the Central Sales Tax (Registration
and Turnover) Rules, 1957 (for short 'the Rules of 1957'). Rule
2 (aa) of the Rules of 1957 defines 'authorized officer' which
means an officer authorized by the Central Government under
clause (b) of sub-section (4) of section 8. Rule 2 (cc) defines
'prescribed authority' which means the authority empowered
by the Central Government under sub-section (2) of section 9
or the authority prescribed by a State Government under
clause (e) of sub-section (4) of section 13, as the case may be.
17. The State Government in exercise of powers under Section 13
of the Act of 1956 framed the Rules known as 'Chhattisgarh
Sales Tax (Central) Rules, 1957 (for short 'Rules of 1957').
Rule 2 (a) says that the Act means the Central Sales Tax Act
1956 and Rule 2 (h) says that 'section' means a Section of the
Act. Rule 2 (e) defines 'notified authority' which means any
authority specified by the Central Government as such under
sub-section (1) of Section 7 read with Rule 2 (d) of the Rules
of 1957. Rule 8 prescribes the authority from which
declaration forms may be obtained, use, custody and
maintenance of records of such Forms and matters incidental
thereto. Rule 8 (1) (a) is relevant and the same is quoted
below:-
"(a) A registered dealer, who wishes to purchase
goods from another such dealer on payment of tax at
the rate applicable under the Act to sales of goods by
one registered dealer to another, for the purpose
specified in the purchasing dealer's certificate of
registration, shall obtain from the 'appropriate 21
[Commercial Tax Officer] or any other officer as may
be authorised by the Commissioner in this behalf
22[blank declaration in Form 'C' as prescribed under
sub-rule (1) of rule 12 of the Central Sales Tax
(Registration and Turnover) Rules, 1957] for
furnishing it to 1he selling dealer. Before furnishing
the declaration to the selling dealer. the purchasing
dealer, or any responsible person authorised by him
in this behalf shall fill in all required particulars in the
Form. and shall also affix his usual signature in the
space provided in the Form for this purpose.
Thereafter, the counterfoil of the Form shall be
retained by the purchasing dealer and the other two
portions marked "Original'. and "duplicate" shall be
made over by him to the selling dealer."
18. Section 7 (1) of the Act of 1956 envisages that for registration
of dealer an application for registration under this Act is to be
made before such authority in the appropriate stage as the
Central Government may, by general or special order, specify.
The taxing authorities and other officers are prescribed under
Section 3 of the Act of 2005, which reads as under:-
"3.Taxing Authorities and other Officers. - (1) There
may be appointed a person to be the Commissioner of
[Commercial Tax] and the following category of officers
to assist him, namely :-
(a) Additional Commissioner of [Commercial Tax];
(b) Appellate Deputy Commissioner or Additional
Appellate Deputy Commissioner of [Commercial
Tax];
(c) Deputy Commissioner or Additional Deputy
Commissioner of [Commercial Tax];
(d) Assistant Commissioner or Additional
Assistant Commissioner of [Commercial Tax];
(e) [Commercial Tax] Officer or Additional
[Commercial Tax] Officer;
(f) Assistant [Commercial Tax] Officer; and
(g) Inspector of [Commercial Tax].
(2) The Commissioner of [Commercial Tax] and the
Additional Commissioner of [Commercial Tax] shall be
appointed by the State Government and the other officers
referred to in sub-section (1) shall be appointed by the
State Government or such other authority as it may direct.
(3) The Commissioner of [Commercial Tax] and the
Additional Commissioner of [Commercial Tax] shall
exercise all the powers and perform all the duties
conferred or imposed on the Commissioner by or under
this Act throughout the State and for this purpose any
reference to the Commissioner in this Act, shall be
construed as a reference to the Additional Commissioner
of [Commercial Tax].
(4) Other officers referred to in sub-section (2) shall,
within such areas as the Appointing Authority may, by
general or special order specify, exercise such powers as
may be conferred and perform such duties as may be
imposed by or under this Act.
[3A. Tribunal. - (1) Subject to such rules as may be made
in this behalf, the State Government may, by notification,
with effect from a date specified therein, constitute
Tribunal to exercise the powers and perform the functions
conferred on the Tribunal by or under the Act.
(2) fill the date specified in the notification under sub-
section (1), the Board of Revenue, Chhattisgarh shall act
as Tribunal for the purpose of this Act and on the date
aforementioned all proceedings pending before the Board
of Revenue, Chhattisgarh, acting as Tribunal shall stand
transferred to the Tribunal constituted under sub-section
(1).
(3) Subject to the previous approval of the State
Government, the Tribunal may, from time to time, make
regulations not inconsistent with the provisions of this Act
regulating the procedure and disposal of its business."
19. Vide order dated 14.10.2020 (Annexure P-1 to WPT
No.1/2021) the entries 'mining' and 'high-speed diesel (HSD)'
are deleted from registration certificates issued under the Act
of 2005 and the Act of 1956. The order, Annexure P-1, bears
Revision No.145 K.C.-1/20 (State) and Revision No.146 K.C.-
1/20 (Central). Revision petition was considered against the
order of amendment in exercise of powers under Section 49
(3) of the Act of 2005. Perual of Annexure P-13 & P-14 to
WPT No.1/2021, would show that these are show-cause
notices to the petitioner. Notice Annexure P-13 issued bear
despatch [email protected]@th,[email protected]@1096 fcykliqj
fnukad 01-10-2020 and issued to the petitioner in respect of
Revision Case No.145 K.C.-1/2020 (State). This notice is
under Section 49 (1) of the Act of 2005 for initiating suo motu
revision proceeding for deletion of entry of 'mining activities'
and 'high-speed diesel' from registration certificate and its
amendment because of misuse of C-Forms. Similarly, notice
of Annexure P-14 was issued to petitioner under Section 49 (1)
of the Act of 2005 on the same date with desptach No.la-vk-
@[email protected],lVh @ [email protected] fcykliqj fnukad 01-10-2020 in
respect of Revision Case No.146/KC-1/2020 (Central). These
notices were issued by respondent No.- Joint Commissioner,
State Tax, Division No.2, Bilaspur (CG).
20. Section 49 (1) of the Act of 2005 talks abut power of revision
by Commissioner and clause (ii) of sub-section (1) of Section
49 envisages that the Commissioner may pass such order
thereon not being an order prejudicial to the dealer or person
as he thinks fit. In other words, while exercising revisional
powers under sub-section (1) of Section 49 of the Act of 2005,
the Commissioner cannot pass any order prejudicial to the
dealer. Sub-section (3) of Section 49 of the Act of 2005 grants
suo motu powers to the Commissioner to examine record of
any proceeding under this Act, if he considers that any order
passed therein by any person appointed under Section 3 to
assist him is erroneous and prejudicial to the interest of
revenue, then he may after giving dealer or a person
reasonable opportunity of being heard, and after making or
causing to be made such enquiry as he deems necessary,
pass such order thereon as the circumstances of the case
justify, including an order enhancing or modifying the
assessment or cancelling the assessment and directing a fresh
assessment. Sub-section (3) of Section 49 of the Act of 2005
is extracted below for ready reference:-
"(3) The Commissioner may on his own motion or on
information received call for and examine the record of
any proceeding under this Act, if he considers that any
order that any order passed therein by any person
appointed under Section 3 to assist him including any
officer to whom he has delegated his powers under
sub-section (1) is erroneous and prejudicial to the
interest of revenue, and he may after giving the dealer
or a person reasonable opportunity of being heard, and
after making or causing to be made such enquiry as he
deems necessary, pass within one calendar year from
the date of initiation of proceeding such order thereon
as the circumstances of the case justify, including an
order enhancing or modifying the assessment or
cancelling the assessment and directing a fresh
assessment."
21. Plea taken by the petitioner in WPT No.1/2021 is non-issuance
of proper notice for amending registration certificate of
petitioner issued under Rule 5 (1) of the Rules of 1957.
Respondent Department along with its reply have submitted
document as Annexure R-2, stated to be issued to the
petitioner under Section 49 (3) of the Act of 2005. Perusal of
this notice Annexure R-2 would show that at the top it is
mentioned as 'amended notice'. This notice bears number " la-
[email protected]@th,[email protected]@1096 fcykliqj fnukad 01-10-2020 ",
which means there is no fresh despatch number of notice
purported to have been issued under Section 49 (3) of the Act
of 2005. Further, this notice is with respect to Revision No.145
K.C.-1/20 (State). It further revealed that some handwritten
correction is made in it. Notice, if any as stated by learned
counsel for respondent Department, is issued under Section
49 (3) of the Act of 2005, then it is only with regard to deletion
of entries in registration certificate issued under the Act of
2005. Except notice of Annexure R-2, respondent Department
has not placed on record any other show-cause notice under
Section 49 (3) of the Act of 2005 having separate despatch
number or for Revision Case No. 146 K.C.-1/20 (Central).
22. Registration of petitioner under the Act of 1956 is under Rule 5
of the Rules of 1957. Rule 9 of the Rules of 1957 provides for
amendment or cancellation of certificate of registration. Rule 9
of the Rules of 1957 reads thus:-
"9. Amendment or cancellation of certificate of
registration.- (l) A notified authority shall, before
amending or cancelling, as the case may be, the
certificate of registration of a dealer under sub-section
(4) of section 7 give him an opportunity of being heard in
the matter.
(2) If the certificate of registration is proposed to be
amended, the dealer shall forthwith produce to the
notified authority the certificate of registration and the
copies thereof, if any, granted to him, for haying them
amended.
(3) If the certificate of registration is cancelled, the dealer
shall forthwith surrender to the notified authority the
certificate of registration and the copies thereof, if any
granted to him."
23. Sub-rule (1) of Rule 9 of the Rules of 1957 specifically
provides for giving of an opportunity of being heard to a dealer
in the matter by the notified authority before amending or
cancelling certificate of registration under sub-section (4) of
section 7 of the Act of 1956. Sub-section (4) of Section 7 of
the Act of 1956 also says that where no such application has
been made, after due notice to the dealer, the certificate of
registration may be amended by the authority granting it if he
is satisfied by reason to be recorded and satisfying that
certificate of registration requires to be amended.
24. Provision under Section 49 (3) of the Act of 2005 also provides
that Commissioner may on his own motion or on information
received, considers that any order passed therein by person
appointed under Section 3 is erroneous or prejudicial to
interest of revenue, he may after giving opportunity of being
heard and after causing such enquiry as he deems necessary,
pass order.
25. From the facts and circumstances of present cases, as
projected in WPT No.1/2021 and identical petitions, and also
from the pleadings of respective parties, it is apparent that the
petitioner had disputed issuance of proper notice under
Section 49 (3) of the Act of 2005 to show cause as to why
registration certificates of petitioner be not amended by
deleting entries 'mining activities' and 'high-speed diesel
(HSD)'. Respondent State though pleaded that proper notice
was issued and served through email, but copy of notice
placed before this Court along with reply as Annexure R-2 is
only with respect to Revision No.145 K.C.-1/20 (State).
Meaning thereby, even if notice issued under Section 49 (3) of
the Act of 2005 is with regard to amendment in registration
certificate for deleting some entries i.e. mining activities and
high speed diesel, from the registration certificate (Annexure
P-7) issued in Form-11 under Rule 12 (1) of the Rules of 2006,
which is registered under the Act of 2005, then there is no
notice with respect to registration certificate issued in Form 'B'
issued under Rule 5 (1) of the Rules of 1957, which is
registered under the Act of 1956. Whereas, order impugned
dated 14.10.2020 (Annexure P-1) decides two revision
petitions bearings Nos.145 K.C.-1/20 (State) and 146 K.C.-
1/20 (Central).
26. From the above facts and discussions, it is apparent that
respondent Department had suo motu decided revision No.146
K.C. - 1/20 (Central) without issuing notice and without giving
opportunity of being heard to registered dealer i.e. petitioner
herien, which is mandatory under the provisions of Section 49
(3) the Act of 2005 and Rule 9 of the Rules of 1957.
27. If provision under Section 49 (3) of the Act of 2055 is read
conjointly with Rule 9 of the Rules of 1957, the intent of Statute
is to give opportunity of being heard is made mandatory.
Hon'ble Supreme Court in case of Sahara India (Firm)
Lucknow, reported in (2008) 14 SCC 151 has held as under:-
"32.The upshot of the entire discussion is that the
exercise of power under Section 142 (2-A) of the
Act leads to serious civil consequences and,
therefore, even in the absence of express provision
for affording an opportunity of pre-decisional
hearing to an assessee and in the absence of any
express provision in Section 142 (2-A) barring the
giving of reasonable opportunity to an assessee,
the requirement of observance of principles of
natural justice is to be read into the said provision.
Accordingly, we reiterate the view expressed in
Rajesh Kumar case2.
28. In view of discussions made in preceding paragraphs, this
Court is of the view that the order impugned with respect to
suo motu revision No.146 K.C.-1/20 (Central) is passed in
violation of provisions of the Act of 2005 as also the Rules of
1957 as no notice under Section 49 (3) of the Act of 2005 was
issued giving opportunity of hearing to registered dealer before
amending registration certificate issued in Form-B under Rule
5 of the Rules of 1957 by deleting entries made thereunder.
Hence, in the opinion of this Court there was violation of
principles of natural justice. This being the position, the
impugned order is liable to be and is hereby quashed.
29.Similar pleas, as raised in WPT No.1/2020, have been raised
by petitioner in WPT No.99/2020. In this case also respondent
State has filed copies of two notices along with its reply, which
are at Page No.22 & 23 of reply. Notice at Page No.22 of reply
bears Despatch [email protected]@th,[email protected]@1104
fcykliqj fnukad 01-10-2020" in Revision Case No.153/ vk-
lh&[email protected] ¼izkarh;½, which is under Section 49 (1) of the Act of
2005. Notice available at Page No.23 of reply of the State
bears same despatch as mentioned in notice at page no.22,
and at the top of this notice the words 'la'kksf/kr lwpuk i=' is
mentioned and provision is manually corrected from "49 (1)" to
"49 (3)". No other show-cause notice is filed by respondent
State. Hence, the order dated 14.10.2020 (Annexure P-1)
passed in Revision Case No.153/ vk-lh-&[email protected] (izkarh;) and
Revision Case No.154/vk-lh-&[email protected] (adsafnz;) is liable to be
and is hereby quashed.
30. Petitioner in WPT No.106/2020 has also raised identical
grounds as raised in WPT No.1/2021. In this case also
respondent State has filed Annexure R-2 along with return,
which are copies of notices, purported to be under Section 49
(3) of the Act of 2005, mentioning at the top as amended
notice. Desptach number of the said notice is the same as is
mentioned in notice under Section 49 (1) of the Act of 2005 in
Revision Case [email protected]&[email protected] (izkarh;) and the
amended notice is also for the same revision case.
Respondent State has not placed any notice issued under
Section 49 (3) of the Act of 2005 for Revision Case No. [email protected]
lh-&[email protected] (adsafnz;). Hence, the order impugned dated
12.10.2020 (Annexure P-1) is hereby quashed.
31. WPT No.111/2020 is an offshoot of WPT No.106/2020 as after
amending registration certificate under the Act of 1956,
respondent Department had issued notice dated 29.10.2020
for recovery of tax with penalty on petitioner vide order dated
29.10.2020 passed in Case No.1/2020 Central, under
Section10A of the Act of 1956. As WPT No.106/2021 filed by
this petition challenging the order dated 12.10.2020 (Annexure
P-11 to writ petition) amending registration certificate of
petitioner by deleting entries 'mining' and 'HSD' has been
allowed by this Court and order dated 12.10.2020 has been
quashed, therefore, consequential order of demand of tax
including penalty (Annexure P-1) are also liable to be quashed
and the same are hereby quashed.
32. The challenge in WPT No.2/2021 is to the order dated
15.10.2020 passed under Section 10A of the Act of 1956 of
recovery of tax with penalty consequent to amendment in
registration certificate under the Act of 1956. Subject matter of
WPT No.1/2021 is the basis for initiating proceedings under
Section 10A of the Act of 1956. As WPT No.1/2021 has
already been allowed, quashing the order dated 14.10.2020
(Annexure P-16 to this petition), therefore, consequential order
of demand of tax including penalty is also liable to be quashed
and the same are hereby quashed.
33. Challenge in WPT No.103/2020 is to the order dated
12.10.2021 (Annexure P-1) by which respondent Department
deleted entry 'mining' and 'HSD' from registration certificate
(State) and registration certificate (Central). Petitioner in this
petition has also raised similar grounds as raised in WPT
No.1/2021. Respondent Department along with its reply filed
amended notice as Annexure R-2. Amended Notice is of same
despatch number of State and provision of Section 49 (1) is
also corrected by hand as Section 49 (3). Case number
mentioned in show-cause notice is '[email protected]&[email protected]
(aizkarh;). Respondent State has not filed any other copy of
show-cause notice under Section 49 (3) for Revision Case
[email protected]&[email protected] (adsafnz;). As both the revisions have
been decided jointly by impugned order dated 12.10.20250
(Annexure P-1), therefore, it is not sustainable for want of
proper notice as held in other connected writ petitions and is
liable to be quashed. Hence, the order impugned is hereby
quashed.
34. Petitioner in WPT No.110/2020 has challenged the order dated
12.10.2020 (Annexure P-1) challenging deletion of entries from
registration certificate (State) and registration certificate
(Central). Petitioner in this petition has also raised similar
grounds as raised in WPT No.1/2021. Respondent Department
along with its reply filed only one notice as Annexure R-2 with
the title 'amended notice' written by hand and correcting
provision from Section 49 (1) to Section 49 (3). This notice is
issued in respect of Revision Case [email protected]&[email protected]
(aizkafr;). Whereas, order impugned is passed in respect of two
revisions i.e. Revision Case [email protected]&[email protected] (aizkafr;)
and Revision Case [email protected]&[email protected] (adsafnz;). Show
cause notice under Section 49 (3) with respect to Revision
Case [email protected]&[email protected] (dsafnz;) is not stated to be issued
nor placed on record by learned counsel for the State. Hence,
the order impugned dated 12.10.2021 is liable to be and is
hereby quashed.
35. The order under challenge in WPT No.112/2020 is passed
consequent to amendment in registration certificate of the
petitioner. Subject matter of WPT No.110/2021 is the basis for
initiating proceedings under Section 10A of the Act of 1956. As
WPT No.110/2021 has already been allowed, quashing the
order dated 14.10.2020 (Annexure P-16 to this petition),
therefore, consequential order of demand of tax including
penalty is also liable to be quashed and the same are hereby
quashed.
36. In the result, all writ petitions stand allowed.
Sd/-
(Parth Prateem Sahu)
Judge
roshan/-
