Unitech Limited Vs. Additional Commercial Tax Officer and anr.

Unitech Limited vs Additional Commercial Tax Officer and anr.

Disposition Petition allowed Court Madhya Pradesh Decided Sep 14, 2004

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Citation: sooperkanoon.com/511384
Court: Madhya Pradesh High Court
Judge: A.M. Sapre, J.
Decided On: Sep 14, 2004
Case Number: Writ Petition No. 1496 of 1996
Subject: Sales Tax
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- Section 2(f): [Dipak Misra, K.K. Lahoti & Rajendra Menon, JJ] Service Tax - Packaging and bottling of liquor whether amounts to manufacture within meaning of Section 2(f) of Central Excise Act 1944? Finance Act 932 of 1994), Section 65 (76 b) (as amended on 16.6.2005) - Held, The first limb of the inclusive defi...

Key legal issue: Sales Tax
Outcome / disposition: Petition allowed
Acts & sections: Madhya Pradesh Commercial Tax Act, 1994 - Sections 6 and 45(3); Madhya Pradesh General Sales Tax Act, 1958 - Sections 4A; Constitution of India - Articles 226 and 227

Parties & Advocates

Appellant / Petitioner

Unitech Limited

Advocate G.M. Chafekar, Sr. Counsel and ;D.S. Kale, Adv.

Respondent

Additional Commercial Tax Officer and anr.

Advocate A.S. Agrawal, Government Adv.

Legal References

Acts: Madhya Pradesh Commercial Tax Act, 1994 - Sections 6 and 45(3); Madhya Pradesh General Sales Tax Act, 1958 - Sections 4A; Constitution of India - Articles 226 and 227
Reported In: [2006]146STC648(MP)

Excerpt

- section 2(f): [dipak misra, k.k. lahoti & rajendra menon, jj] service tax - packaging and bottling of liquor whether amounts to manufacture within meaning of section 2(f) of central excise act 1944? finance act 932 of 1994), section 65 (76 b) (as amended on 16.6.2005) - held, the first limb of the inclusive definition of the manufacture under section 2(f) of central excise act has a very wide connotation. as the definition clause lays down an inclusive facet, the term manufacture has to be construed in a natural and plain manner and would include any process incidental or ancillary to the completion of a manufactured product. keeping in view the context in which the term manufacture has been used, it would take in its fold incidental and ancillary process in the manufacture or finishing of any manufactured product. it does not leave any room for doubt that an allied process should be integral and inextricable part of manufacture of completeness and presentability of the manufactured product. section 65(76b) of finance act used the words but it does not include. thus it is a definition which has the inclusive as well as exclusive facet. by virtue of the same it may include certain things and exclude others. it is well settled principle of law that a definition is not to be read in isolation and has to read in context of phrase which it defines, releasing that function of a definition is to give precision and certainty to the word or phrase which would otherwise be vague and uncertain. regard being had to the exclusionary fact in the finance act, though a limited one it would exclude the manufacturing process as defined under section 2(f) of the 1944 act. keeping in view the aforesaid dictionary clauses and circulars issued by the c.b.e.c. it is quite luminescent that would manufacture has to be understood in a broader sense and not to be confined or restricted to the excisable product in the act. it would include all processes which amount to manufacture..........act only because the former act is repealed and replaced by new act. an action taken under the old act attained finality because the order (annexure b) was not set aside or recalled or quashed by any other authority. in this view of the matter there did not arise any fresh cause of action to again start the inquiry into the same facts again under the new act. what is saved by repeal and saving clause is the action which is initiated under the old act is pending on the date when the old act stood repealed and replaced by the new act. it is such action which can be continued notwithstanding the old act being repealed. but where the action stood attained finality under the old act long before the date on which the new act came into force, the accomplished action cannot be again revived under the garb that new act has come into force. in other words, if the same action could not have been taken under the old act while it was in force then it follows that the same cannot be taken under the new a act as well.6. learned counsel for the state could not dispute the aforementioned legal position nor could he point out any factual distinction in the two notices, i.e., the one sent under the old act which was withdrawn after inquiry by order (annexure b) and the impugned notice issued under the new act. in this view of the matter, the impugned notices cannot be sustained in law, they being totally without jurisdiction.7. accordingly and in view of aforesaid discussion, i do not wish to go into the factual issues of the case which were sought to c be made subject-matter of the two notices because no attempt was made by the parties to show any distinguishable facts in two.8. in view of foregoing reasons, petition succeeds and is allowed. impugned notices (annexures c and e) and order dated june 7, 1996 (annexure h) issued/passed by respondents are hereby quashed by writ of certiorari.9. no costs.

Full Judgment

ORDER

A.M. Sapre, J.

1.By filing this petition under article 226/227 of the Constitution of India, the petitioner seeks to challenge the notices issued Under Section 6 read with Section 45(3) of the Madhya Pradesh Commercial Tax Act, 1994 (annexures C and E) and order dated June 7, 1996 (annexure H).

2. The challenge to the impugned notice is essentially on the ground that similar notice Under Section 4-A of the former Act, i.e., Madhya Pradesh General Sales Tax Act, 1958 (since repealed and replaced by the Madhya Pradesh Commercial Tax Act, 1994) was issued to the petitioner for the very cause in past and on an inquiry being made a detailed order dated June 6, 1994 (annexure B) was passed withdrawing the notice. It is on this basis, the petitioner has contended that once the similar notice had been issued in respect of the same cause and the issue stands decided by holding an inquiry resulting in passing of the order (annexure B), the respondent (C.T.O) has no jurisdiction to again issue same show cause notice by taking recourse to the provisions of Section 6 of the Madhya Pradesh Commercial Tax Act, 1994. The State has been noticed. Reply is filed.

3. Heard Shri G.M. Chafekar, learned Senior Counsel with Shri D.S. Kale, learned Counsel for the petitioner and Shri A.S. Agrawal, learned Government Advocate for the respondents.

4. Having heard learned Counsel for the parties and having perused record of the case, I am inclined to allow the writ and quash the impugned notice.

5. Once it is not disputed by the State that similar notice on the same issue was issued under the repealed Act, i.e., Under Section 4-A of the Madhya Pradesh General Sales Tax Act, 1958 and it resulted in its discharge by passing a reasoned final order (annexure B) then no second notice on the same issue can be issued under the new Act, i.e., Section 6 of the Madhya Pradesh Commercial Tax Act, 1994. When the object of Section 4-A of the former Act and that of Section 6 of the new Act is the same, then in such event, the C.T.O. does not acquire any jurisdiction to issue same notice under the new Act only because the former Act is repealed and replaced by new Act. An action taken under the old Act attained finality because the order (annexure B) was not set aside or recalled or quashed by any other authority. In this view of the matter there did not arise any fresh cause of action to again start the inquiry into the same facts again under the new Act. What is saved by repeal and saving clause is the action which is initiated under the old Act is pending on the date when the old Act stood repealed and replaced by the new Act. It is such action which can be continued notwithstanding the old Act being repealed. But where the action stood attained finality under the old Act long before the date on which the new Act came into force, the accomplished action cannot be again revived under the garb that new Act has come into force. In other words, if the same action could not have been taken under the old Act while it was in force then it follows that the same cannot be taken under the new A Act as well.

6. Learned Counsel for the State could not dispute the aforementioned legal position nor could he point out any factual distinction in the two notices, i.e., the one sent under the old Act which was withdrawn after inquiry by order (annexure B) and the impugned notice issued under the new Act. In this view of the matter, the impugned notices cannot be sustained in law, they being totally without jurisdiction.

7. Accordingly and in view of aforesaid discussion, I do not wish to go into the factual issues of the case which were sought to C be made subject-matter of the two notices because no attempt was made by the parties to show any distinguishable facts in two.

8. In view of foregoing reasons, petition succeeds and is allowed. Impugned notices (annexures C and E) and order dated June 7, 1996 (annexure H) issued/passed by respondents are hereby quashed by writ of certiorari.

9. No costs.

Same Court & Year Madhya Pradesh · 2004 Same Parties Unitech Limited vs Additional Commercial Tax Officer and anr. Same Subject Sales Tax Same Judge A.M. Sapre, J. Acts & Sections Madhya Pradesh Commercial Tax Act, 1994 - Sections 6 and 45(3...

Sales Tax