Digboi Carbon Pvt. Ltd vs The State Of Assam And 3 Ors
2022 Latest Caselaw 4174 Gua

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GAHC010217162022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/6864/2022

            DIGBOI CARBON PVT. LTD.
            A PRIVATE LTD. COMPANY HAVING ITS REGISTERED OFFICE AT
            INDUSTRIAL ESTATE BAZALTALI P.O. BORAGURIE DIST. TINSUKIA
            ASSAM ITD INDUSTRIAL UNIT SITUATED AT INDUSTRIAL ESTATE
            BAZALTALI, P.O. BORAGURI, DIST. TINSUKIA ASSAM PIN-786125 AND IN
            THE PRESENT PROCEEDINGS REP. BY SANJIB KUMAR BRUAH ONE OF
            THE DIRECTORS OF THE PETITIONERS COMPANY



            VERSUS

            THE STATE OF ASSAM AND 3 ORS.
            REP BY THE COMMISSIONER AND SECRTETARY TO THE GOVT. OF ASSAM
            FINANCE (TAXATION) DEPTT. ASSAM SECRETARIAT DISPUR GUWAHATI-
            781006

            2:DEPUTY SECRETARY
             GOVT. OF ASSAM FINANCE (TAXATION) DEPTT. ASSAM SECRETARIAT
            DISPUR GUWAHATI-781006

            3:COMMISSIONER OF TAXES
            ASSAM
             KAR BHAWAN
             DISPUR GUWAHATI-781006

            4:ASSISTANT COMMISSIONER OF STATE TAXES
            TINSUKIA ASSA

Advocate for the Petitioner   : DR. ASHOK SARAF

Advocate for the Respondent : SC, FINANCE AND TAXATION
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                           BEFORE
      HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                     ORDER

31.10.2022

Heard Dr. Ashok Saraf, learned senior counsel for the petitioner. Also heard Mr. B Gogoi, learned counsel for the respondents in the Finance and Taxation Department Government of Assam.

2. Issue notice, returnable on 14.11.2022.

3. Extra copies of the writ petition be served on the learned counsel for the respondents as indicated above within three days.

4. The question involved is on the entitlement of the petitioner assessee for a refund of the local sales tax paid by them in respect of which, after subjecting to a manufacturing process the product was sold in interstate trade, where central tax has also been paid. The change of nature and character of the product, whether it led to a different product on being subjected to a manufacturing process or it remained the same product has been settled by the Supreme Court by arriving at a conclusion that the product remains the same declared goods. In the circumstance, a question would arise as to whether the petitioner is entitled to a refund. The authorities by relying on another judgment of the Supreme Court in respect of another declared goods had arrived at a conclusion that because of the subsequent decision of the Supreme Court in Page No.# 3/4

respect of another declared goods there cannot be a refund as because the nature and character of the declared goods has changed on being subjected to a process of manufacturing. The said issue was brought before this Court wherein by the judgment dated 12.12.2012 in WP(C)No.6646/2010, a conclusion has been arrived that the declared goods remained the same declared goods. On an appeal being carried before the Supreme Court by the State Taxation authorities it stood dismissed, meaning thereby that the provision of the law that the declared goods remained the same declared goods was upheld. In the circumstance, by an earlier order dated 25.10.2019 of the Commissioner of Taxes, a conclusion was arrived that the petitioner is entitled for a refund along with interest @ 10% for the period commencing after 90 days of making the application claiming for such refund till the date on which the refund is granted. But by a subsequent order of the Commissioner of Taxes dated 22.09.2022, a reverse stand was taken that as because the present petitioner assessee was not a party in the litigation before the Supreme Court, where a law has been laid down that the declared goods remained the same declared goods, therefore, they are not entitled to a refund. In other words, the Commissioner of Taxes by the letter dated 22.09.2022 construed the judgment of the Supreme Court to be a judgment in personum, which would be applicable to the litigant before the Supreme Court and not applicable to any other similarly situated assessee. But, at the same time, in the earlier order of the Commissioner of Taxes dated 25.10.2019 a different view was taken and further the materials on record also included the view taken by the LR to the Government of Assam has also been taken note of that the principle of law that has been laid down by the Supreme Court would be applicable to all the assessees having similar claim.

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5. The respondents to file their affidavit specifically on the aforesaid aspect as to why they now change their stand that the principle of law laid down by the Supreme Court would be inapplicable in respect of other assessees who were not a party before the Supreme Court in the litigation where the law was laid down, more so, in view of the fair stand taken by the Commissioner of Taxes in the order dated 25.10.2019 where a conclusion was arrived that a refund would be applicable from the date of making such claim after the law that has been laid down by the Supreme Court that the declared goods do not change its nature and character and is entitled to a refund.

6. List on 14.11.2022 by which date, the affidavit shall be filed.

7. If the respondents feel, pendency of this writ petition shall not be a bar on the part of the respondent authorities to consider the claim of the petitioner.

JUDGE

Comparing Assistant