SooperKanoon Citation | sooperkanoon.com/510336 |
Subject | Sales Tax |
Court | Madhya Pradesh High Court |
Decided On | Apr-17-2001 |
Case Number | Writ Petition No. 1880 of 1994 |
Judge | A.M. Sapre, J. |
Reported in | [2002]126STC199(MP) |
Acts | Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; Constitution of India - Articles 226 and 227 |
Appellant | indra Marshall Oil Engines |
Respondent | State of Madhya Pradesh and ors. |
Appellant Advocate | P.M. Choudhary, Adv. |
Respondent Advocate | S. Mukati, Government Adv. |
Disposition | Petition allowed |
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 120 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 120]sales tax - exemption - section 42(b) of the madhya pradesh general sales tax act, 1958 - petitioner was dealer of part of pumping sets which come under agricultural goods - petitioner made reference to sale tax commissioner for tax - authority consider petitioner's reference and passed order under section 42(b) of act - petitioner aggrieved by said order - hence, present petition - held, authority should have first referred to these entries then should have examined facts placed by petitioner - authority did not examine nature of goods , its use and manufacture - under writ jurisdiction present court examined legality of order and correctness of relevant entries - authority neither examined matter in light of relevant entries nor rendered any finding - hence, petition allowed and.....Code Contextecho "<div class='table-bordered'><b>Excerpt:</b><br/>";
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 120 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]Code Context}
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echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]ordera.m. sapre, j.1. by filing this writ under articles 226 and 227 of the constitution of india, the petitioner has challenged the legality and validity of an order passed by the commissioner of sales tax, dated june 21, 1994 (annexure p2) under section 42-b of the madhya pradesh general sales tax act, 1958 (since repealed). in order to appreciate the controversy raised in the writ few facts coupled with the scope of section 42-b need mention.2. section 42-b, which alone is relevant for the disposal of the writ reads as under :section 42-b(1). if any question is raised by a dealer in respect of the rate of tax on any goods, the commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.(2) any order passed by the.....Code Context}
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 0include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
A.M. Sapre, J.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 1include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
1. By filing this writ under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 2include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 3include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 4include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'
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echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 5include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 6include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).
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echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 7include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 8include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**
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}
echo html_entity_decode($this->Wand->highlight($content[$i], $query));
$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 9include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 10include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
SCHEDULE II
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 11include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
S. No.Description of goods Rate of tax
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 12include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
PART III.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 13include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.
7. The question, that fell for consideration before the Commissioner in this case was :
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 14include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 15include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 16include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 17include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 18include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 19include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
S. No.Class of goods
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 20include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof.
9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 21include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 22include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 23include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
No costs. Security amount, if deposited by the petitioner, be refunded as per rules.
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$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p style="text-align: justify;">A.M. Sapre, J.</p><p style="text-align: justify;">1. By filing this writ under Articles 226 and 227 of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p style="text-align: justify;">2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p style="text-align: justify;">Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p style="text-align: justify;">(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p style="text-align: justify;">3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p style="text-align: justify;">4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p style="text-align: justify;">5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p style="text-align: justify;">^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p style="text-align: justify;">6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p style="text-align: justify;">SCHEDULE II</p><p style="text-align: justify;">S. No.Description of goods Rate of tax </p><p style="text-align: justify;">PART III.</p><p style="text-align: justify;"> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p style="text-align: justify;">7. The question, that fell for consideration before the Commissioner in this case was :</p><p style="text-align: justify;">1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p style="text-align: justify;">2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p style="text-align: justify;">or</p><p style="text-align: justify;">3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p style="text-align: justify;">8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p style="text-align: justify;">S. No.Class of goods</p><p style="text-align: justify;"> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p style="text-align: justify;">9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p style="text-align: justify;">10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p style="text-align: justify;">11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p style="text-align: justify;">No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'indra-marshall-oil-engines-vs-madhya-pradesh', 'args' => array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) ) $title_for_layout = 'Indra Marshall Oil Engines Vs State of Madhya Pradesh and ors - Citation 510336 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510336', 'acts' => 'Madhya Pradesh General Sales Tax Act, 1958 - Sections 42B; Madhya Pradesh General Sales Tax (Amendment) Act 1978; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 226 and 227', 'appealno' => 'Writ Petition No. 1880 of 1994', 'appellant' => 'indra Marshall Oil Engines', 'authreffered' => '', 'casename' => 'indra Marshall Oil Engines Vs. State of Madhya Pradesh and ors.', 'casenote' => ' Sales Tax - Exemption - Section 42(B) of the Madhya Pradesh General Sales Tax Act, 1958 - Petitioner was dealer of part of pumping sets which come under agricultural goods - Petitioner made reference to Sale Tax Commissioner for Tax - Authority consider petitioner's reference and passed order under Section 42(B) of Act - Petitioner aggrieved by said order - Hence, present petition - Held, Authority should have first referred to these entries then should have examined facts placed by petitioner - Authority did not examine nature of goods , its use and manufacture - Under writ jurisdiction present Court examined legality of order and correctness of relevant entries - Authority neither examined matter in light of relevant entries nor rendered any finding - Hence, petition allowed and order passed by Authority quashed - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. ', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => 'P.M. Choudhary, Adv.', 'counseldef' => 'S. Mukati, Government Adv.', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '2001-04-17', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => 'A.M. Sapre, J.', 'judgement' => 'ORDER<p>A.M. Sapre, J.</p><p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.</p><p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :</p><p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.</p><p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'</p><p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.</p><p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).</p><p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :</p><p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**</p><p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :</p><p>SCHEDULE II</p><p>S. No.Description of goods Rate of tax </p><p>PART III.</p><p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :</p><p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?</p><p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?</p><p>or</p><p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?</p><p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :</p><p>S. No.Class of goods</p><p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.</p><p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.</p><p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.</p><p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '[2002]126STC199(MP)', 'ratiodecidendi' => '', 'respondent' => 'State of Madhya Pradesh and ors.', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $casename_url = 'indra-marshall-oil-engines-vs-madhya-pradesh' $args = array( (int) 0 => '510336', (int) 1 => 'indra-marshall-oil-engines-vs-madhya-pradesh' ) $url = 'https://sooperkanoon.com/case/amp/510336/indra-marshall-oil-engines-vs-madhya-pradesh' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>A.M. Sapre, J.', (int) 1 => '<p>1. By filing this writ under Articles 226 and 227 of the <a>Constitution of India</a>, the petitioner has challenged the legality and validity of an order passed by the Commissioner of Sales Tax, dated June 21, 1994 (annexure P2) under Section 42-B of the Madhya Pradesh General Sales Tax Act, 1958 (since repealed). In order to appreciate the controversy raised in the writ few facts coupled with the scope of Section 42-B need mention.', (int) 2 => '<p>2. Section 42-B, which alone is relevant for the disposal of the writ reads as under :', (int) 3 => '<p>Section 42-B(1). If any question is raised by a dealer in respect of the rate of tax on any goods, the Commissioner shall, in accordance with such procedure as may be prescribed, make an order determining the rate of tax on such goods.', (int) 4 => '<p>(2) Any order passed by the Commissioner under Sub-section (1) shall be binding on the authorities referred to in Section 3 in all proceedings under the Act except appeals.'', (int) 5 => '<p>3. Section 42-B was inserted by way of an amendment (being Act No. 25 of 1978) with effect from October 1, 1978. Perusal of section indicates that it is intended for the benefit of a dealer. In other words, if the dealer engaged in the business of any commodity which is subjected to payment of sales tax has any doubt or that he is unable to determine to himself as to at what rate he has to pay the tax on the goods/commodity in which he is dealing, then in such event, he has to make an application to the Commissioner requesting him to decide the question as to at what rate, he has to pay the tax on the goods in which he is dealing. Once an application is made by the dealer invoking Section 42-B, then it is the duty of the Commissioner to examine the case of dealer set up in the application, in the context of several entries of the Schedule, and in the light of material brought on record by the dealer. While exercising the powers under Section 42-B, the Commissioner is under legal obligation to examine the issue from various angles so as to come to a correct conclusion as to under which entry a particular goods/commodity falls for being taxed. In other words, the Commissioner has to examine the case of that particular commodity with reference to all possible entries which may have bearing for determining the rate of tax payable. Merely, because the dealer claims that his goods are liable to be taxed under a particular entry of Schedule does not mean that the Commissioner would only examine whether goods fall in that entry or not. It is the duty of the Commissioner to examine whether the goods which are subject-matter of application falls in the entry as contended by dealer and if not, then in which entry the goods will fall for being taxed. The object of Section 42-B is to let the dealer know as to under which entry of Schedule appended to Act, he has to pay the tax. It is essentially in the nature of guidance to him, because he is unable to know the correct rate of tax, which is payable by him. At times, the case of dealer can be that he is liable to pay lesser rate of tax under a particular entry whereas in some cases the case can be that dealer is totally unable to decide as to at what rate, he has to pay the tax. It is then for the Commissioner to decide the correct rate of tax. It is for the Commissioner to decide in every case as to what type of factual inquiry that is required to be undertaken by him for determining the rate of tax, which essentially depends upon the nature of goods, its characteristic, its marketability, use, etc. These factors always weigh and are in fact material for determination. It is also expected from the Commissioner to render its verdict by an authoritative pronouncement after taking into account aforementioned factors and judicial pronouncement on identical issues rendered by Supreme Court or/and High Courts because the verdict of Commissioner is essentially in the nature of judicial determination based on abstract question of law and binding on the assessing authorities. This intention is discernible on mere perusal of Section 42-B and the object underlying in its enactment.', (int) 6 => '<p>4. It is in the background of what is observed supra, if one examine the facts of this case, then the impugned order rendered by the Commissioner under Section 42-B of the Act does not appear to be in conformity with the real objective of Section 42-B and hence, not sustainable. In short, the facts for which the petitioner -- a dealer had invoked Section 42-B ibid was that they claimed themselves to be the manufacturer and sale of oil engines for pumping sets. According to the petitioner, they manufacture oil engines for pumping sets which are essentially used for agricultural purpose and then sell these engines to other companies engaged in the business of manufacture of pumping sets. According to petitioners the engines manufactured by them are as per specifications prescribed by ISI for pumping sets which are used for agricultural purpose. It is the case of petitioner that engines manufactured by them are in fact a spare part of pumping sets and hence, exempt from payment of sales tax as per exemption notification with effect from April 1, 1994. It was also the case of petitioner that in any event, the goods manufactured by them are agricultural implements worked with the aid of power and hence exempt from payment of tax as per exemption notification (annexure P4).', (int) 7 => '<p>5. The learned Commissioner by impugned order, held it to be not a spare part. This is what the learned Commissioner concludes :', (int) 8 => '<p>^^mDr leLr U;k;ky;hu fu.kZ;ksa ds izdk'k esa ;gLi'V gS fd fopkjk/khu oLrq fMty baftu ifiax lsV Lis;j ikVZ ugha gSA vr% ;gfuf.kZr fd;k tkrk gS fd Mhty baftu vuqlwph AA ds Hkkx AAA dh izfof'V ekad9-All mchines or machines worked byelectricity diesel or petrol and spare parts and accessories thereof........... dsvUrxZr fnukad 31-3-94 rd 12 izfr'kr dh nj ls rFkk fnukad 1-4-94 ls 10 izfr'kr dhnj ls dj ;ksX; gSA**', (int) 9 => '<p>6. Having heard the learned counsel for the parties, as observed supra, I am unable to uphold the impugned order of Commissioner as in my opinion, the learned Commissioner did not properly apply its mind to the facts of the case much less in the context of the relevant entries. This is clear when one sees the conclusion quoted supra, where the learned Commissioner did not even quote the full entry 9 of Part III of Schedule II, but has only quoted portion of it. The entire entry 9 of Part III of Schedule II reads as under :', (int) 10 => '<p>SCHEDULE II', (int) 11 => '<p>S. No.Description of goods Rate of tax ', (int) 12 => '<p>PART III.', (int) 13 => '<p> 9.All machineries or machines worked by electricity, diesel orpetrol and spare parts and accessories thereof but excluding tractors andpumping sets as specified in entry 12 of Part-IV and agricultural machinery and accessories,implements and parts thereof12.<p>7. The question, that fell for consideration before the Commissioner in this case was :', (int) 14 => '<p>1. Whether goods manufactured by the petitioner can be regarded as agricultural implements worked with the aid of power so as to fall in entry 4 of exemption notification dated March 30, 1994 (annexure P4) ?', (int) 15 => '<p>2. Whether goods manufactured by the petitioner can be regarded as or termed as spare parts of pumping sets so as to fall in entry 5 of exemption notification ?', (int) 16 => '<p>or', (int) 17 => '<p>3. Whether goods manufactured by the petitioner fall in entry 9 of Part III of Schedule II so as to treat them as machinery worked by diesel ?', (int) 18 => '<p>8. To decide the aforementioned questions, following three entries, i.e., two entries from exemption notifications and one from Schedule II are relevant :', (int) 19 => '<p>S. No.Class of goods', (int) 20 => '<p> 4.All kinds of agricultural implements worked withthe aid of power or tractor.5.Pumping sets and spare parts and accessoriesthereof,SCHEDULE II (PART III)9.All machineries or machines worked by electricity,diesel, or petrol and spare parts and accessories thereof but excludingtractors and pumping sets as specified in entry 12 of Part IV and agriculturalmachinery and accessories, implements and parts thereof. <p>9. The learned Commissioner should have first referred to these entries, then should have examined the facts brought on record by the petitioner to indicate the nature of goods, its use, its manufacture and then decided the question as to why the goods in question do not fall in any of the two exempted entries of exemption notifications but fall in entry 9 of Schedule II of Part III.', (int) 21 => '<p>10. In order to decide such issue by this Court, there has to be a finding duly recorded by the Commissioner with reference to each entry then only this Court in its writ jurisdiction examine its legality and correctness in the context of relevant entries and the material brought on record. Since in the present case, the learned Commissioner neither examined the matter in the light of relevant entries nor rendered any finding and hence, the impugned order deserves to be quashed.', (int) 22 => '<p>11. Accordingly petition succeeds and is allowed. Impugned order dated June 21, 1994 (annexure P2) is set aside and the matter is remanded to the Commissioner to redecide the issue in the light of observations made supra, and then record a definite finding as to under which entry the goods of the petitioner falls -- whether they are exempt or/and if not then under which entry of Schedule they can be taxed. Needless to observe, the Commissioner will pass a reasoned order after giving an opportunity to the petitioner to place their case. Let this be done within six months from the date of this order.', (int) 23 => '<p>No costs. Security amount, if deposited by the petitioner, be refunded as per rules.<p>', (int) 24 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 25 $i = (int) 24include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109