The Tinplate Company of India Ltd. Vs. State of Jharkhand and ors. - Court Judgment

Excerpt:
(a) code of civil procedure, 1908 - section 152--modification petition-maintainability of--filed by petitioner for clarification of order dated 10-5-2002--since modification petition filed by petitioner tantamounts to reopen of the entire matter afresh which is impermissible under section 1s2 of the cpc--hence, modification petition not maintainable.(b) bihar finance act, 1981 - section 7(1)--industrial policy, 1995--exemption of sale tax--extending of benefits for--such benefits extended on purchase of raw material to the industry which has started production on or after 1-9-1995 upto 31-8-2000--and diversification of facility of exemption of sale tax would be available on such raw materials which have been used in the commercial production which has not been earlier produced by the unit.....order1. this application has been filed by the petitioner for modification/ clarification of the order dated 10.5.2002 passed by this court in cwjc no. 2857 of 2000 (r) and the petitioner by the said modification/clarification desires the addition of the word 'and other cold rolled product' after the word 'tmbp' in the last but one line in para 13 at page 23 of the judgment.2. for the sake of clarity i quote the relevant sentence appearing in-para 13 at page 23 of the judgment :--'based upon the facts aforesaid and the interpretation of clause 15.4 of s.o. 478 read with clause (ga) of s.o. 57 dated 2nd march, 2000 the petitioner is entitled to full exemption in respect of the sales tax paid on the purchase of the raw materials i.e., hr coils for the production of the new product i.e.,.....

Judgment:
ORDER

1. This application has been filed by the petitioner for modification/ clarification of the order dated 10.5.2002 passed by this Court in CWJC No. 2857 of 2000 (R) and the petitioner by the said modification/clarification desires the addition of the word 'and other Cold Rolled Product' after the word 'TMBP' in the last but one line in para 13 at page 23 of the judgment.

2. For the sake of clarity I quote the relevant sentence appearing in-para 13 at page 23 of the judgment :--

'Based upon the facts aforesaid and the interpretation of clause 15.4 of S.O. 478 read with Clause (GA) of S.O. 57 dated 2nd March, 2000 the petitioner is entitled to full exemption in respect of the sales tax paid on the purchase of the raw materials i.e., HR coils for the production of the new product i.e., TMBP which was not earlier produced in the unit of the petitioner for manufacture of ETP.'

3. The petitioner had earlier filed CWJC No. 2857 of 2000 (R) or issuance of appropriate writ in the nature of certiorari for quashing the orders dated 30.6.2000 (Annexure-16) and 1.7.2000 (Annexure-17) passed by Respondent No. 3, Joint Commissioner of Commercial Taxes (Admn.), Jamshedpur Division, Jamshedpur, pursuant to the direction dated 6.1.2000 passed by this Court in CWJC No. 3248 of 1999 (R) whereby and whereunder the prayer of the petitioner for refund of the amount of sales tax of the year 1996-97 has been disallowed and for the year 1997-98 the petitioner was allowed to avail of the tax free purchase of raw materials in the form of HR coils for the production of 8588 MT of CRM product over and above the 2/3rd incremental capacity of 60,000 MT fixed under S.O. 478 on proportional basis which works out to 9889 MT only and also a direction was made therein that the refund of the tax paid on purchase of raw materials during the period of exemption has to be routed through the seller company i.e., TISCO for the refund of the amount of the tax to the dealer company. After hearing the parties at length the writ application of the petitioner-dealer company was allowed vide judgment dated 10.5.2002 with the following directions contained in para 15 of the judgment aforesaid which is as follows :--

'15. Respondent No. 3 (JCCT) is hereby directed to consider the claim of refund of the petitioner afresh within four weeks from the date of this order confining himself only within the specific direction given by the earlier Division Bench of this Court on 6th January, 2000. Respondent No. 3 (JCCT) will satisfy himself that the amount of sales tax on the purchase of raw materials have been paid by the petitioner to TISCO and others and he should also be satisfied that TISCO and SAIL have paid the amount to the State Government and on being satisfied in view, of the materials already before him, supplied by the petitioner and TISCO, Respondent No. 3 will pass speaking and reasoned order in accordance with law for the refund of the amount of sales tax paid on the purchase of raw materials from 5.4.1996 to 31.3.1998 in terms of the direction of earlier Division Bench dated 6th January, 2000. No order as to costs.'

4. In pursuance of the direction of this Court quoted above the petitioner moved before JCCT Taxes (Admin.). Jam-shedpur Division, Jamshedpur for the refund of the sales tax paid regarding the purchase of the raw materials i.e., H.R. coils which was allowed in full vide Annexure-3 of this petitioner and a copy of Annexure-3 was forwarded to the Secretary-cum-Commissioner. Commercial Taxes Dept., Jharkhand, Ranchi besides other for information and necessary action. Thereupon the Commissioner of Commercial Taxes, Jharkhand, Ranchi issued notice under Section 46(4) of the Bihar Finance Act, 1981 to the petitioner for hearing under Section 46(4) of the Bihar Finance Act, 1981 in his Court at Ranchi. For proper appreciation relevant portion of the said notice is quoted below :--

'The Hon'ble High Court of Jharkhand vide its order dated 10.5.2002 in CWJC No. 2857 of 2000 (R) has held (in para 13 of the order) that

'.....Based upon the facts aforesaid and the interpretation of clause 15.4 of S.O. 478 read with Clause (Ga) of S.O. 57 dated 2.3.2000 the petitioner is entitled to full exemption in respect of the sales tax paid on the purchase of raw materials i.e., H.R. Coils for the production of the new product i.e., TMBP which was not earlier produced in the unit of the petitioner for manufacture of ETP......' But it is seen from the refund order dated 10.8.2002 passed by the Joint Commissioner of Commercial Taxes (Adm.), Jamshedpur and other related records that he has passed the refund order taking the view that all Cold Rolled Products come under TMBP. This needs to be looked into.'

5. In the said situation the petitioner has once again come before this Court by filing this application for modification/clari fication of the order dated 10.5.2002 passed in CWJC No. 2857 of 2000 (R). The petitioner has stated in the modification petitioner that from the perusal of the entire judgment it appears that this Court has been pleased to hold that the petitioner is entitled to exemption OH the entire raw materials and not only for the manufacture of TMBp and in para 13 of the said judgment only the word TMBP has been used and the words 'and other cold rolled products like FHCR' has been inadvertently left out. It is also stated that from a proper reading of the tenor and the purport of the judgment of this Court it will appear that the judgment has proceeded on the basis of the petitioner's contention that the raw materials viz. H.R. Coils are required for the manufacture of TMBP and other Cold Rolled products including FHCR, CRGC and CRGP and the entire raw materials viz. H.R. Coils purchased from TISCO & SAIL for the period from 5.4.96 to 31.3.98 have been used for the purpose of manufacturing new products viz. TMBP and other Cold Rolled products including. FHCR, CRGC and CRGP. It has further been stated that it has been held in the said judgment by this Bench categorically that the petitioner came into commercial production w.e.f. 5.4.96 which stands testified by the Director, Technical Department and the petitioner out of the raw materials of 1,20,000 MT has used 90.000 MT for the production of TMBP and the balance 30,000 MT has been used for manufacture of other Cold Rolled products viz. FHCR, CRGC & CRGP. The further case of the petitioner is that contention of the petitioner has been accepted in the said judgment that the manufacture of TMBP and other Cold Rolled products are new products for which the raw materials i.e., H.R. Coils purchased from 5.4.96 to 31.3.98 has been used and because of this factual finding this Court has categorically directed that the purchase of the raw materials viz. H.R. Coils during the period from 5.4.96 to 31.3.98 which has been used for the manufacture of new products i.e., TMBP and other Cold Rolled products including FHCR and others are to be granted full exemptions in terms of the Industrial Policy provided the authorities are satisfied that the sales tax has been paid on the purchase of the said raw materials to TISCO and SAIL and the sales tax had been paid by TISCO and SAIL to the sales tax authorities. The further case of the petitioner is that it is only by way of an inadvertent omission and/or a typographical omission that this Court in one place has observed that the sales tax on the purchase of raw materials i.e., H.R. Coils on the manufacture of the new product TMBP is to be allowed exemption whereas in the proper context of the entire judgment this Court really intended and meant that the sales tax paid on the entire raw materials i.e., H.R. Coils purchased from 5.4.96 to 31.3.98 and which have been used for the manufacture of new product viz. TMBP and other Cold Rolled products are to be granted exemption and in the facts and circumstances of this case of observation made by this Court in para 13 viz. 'the petitioner is entitled to full exemption in respect of the sales tax paid on the purchase of raw materials i.e., H.R. Coils for the production of new product, i.e., TMBP which was not earlier produced in the unit of the petitioner for manufacturing ETP' may be suitably amended so as to include after the words 'for the production of the new products i.e., TMBP and other C.R. products including FHCR, CRGC and CRGP' which were not earlier produced in the unit of the petitioner in order that the true purport and intent of the judgment may be properly reflected.

6. The case of Respondent Nos. 2 to 5 in their counter- affidavit is that the modification petition filed by the petitioner is not maintainable as it tantamounts to reopen the entire matter afresh which is not at all permissible under Section 152 CPC. It is alleged that the petitioner by way of its modification petition has prayed before this Court to embark upon fresh investigation and thereafter to clarify/modify the finding of fact record by this Court in para 13 of the judgment dated 10.5.2002. It is also alleged that the petitioner has accepted the judgment dated 10.5.2002 and he has not filed any appeal against the said judgment before the Apex Court and this Court after elaborate discussion had held in para 13 of the said judgment that the petitioner is entitled to full exemption in respect of the sales tax paid on the purchase of the raw materials, i.e., H.R. Coils for the production of new product i.e., TMBP which was not earlier produced in the unit of the petitioner for manufacture of ETP. It has also been stated that the finding of this Court is very clear from which the petitioner is only entitled to full exemption from payment of sales tax on purchase of H.R. Coils which are used for manufacture of TMBP only and not for any other product. Lastly it has been contended that the petitioner had filed Contempt (Civil) Case No. 999 of 2002 before this Court for initiating contempt proceeding for non-compliance of judgment dated 10.5.2002 passed in CWJC No. 2857/2000 (R) on the ground that the respondents have committed contempt of this Court by issuing notice under Section 46(4) of the Bihar Finance Act, 1981, for reviewing the order passed by Joint Commissioner, Commercial Taxes, Jamshedpur Division by which he had allowed full exemption of tax paid by the petitioner on purchase of H.R. Coils for production. of TMBP and FHCR and during the pendency of the contempt petition the Commissioner, Commercial Taxes, Jharkhand vide order dated 8.2.2003 disallowed refund of sales tax paid for H.R. Coils which was used for manufacture of FHCR for which the petitioner was not entitled to refund as per finding recorded in the judgment dated 10.5.2002 of this Court. It has also been stated that the said contempt petition was dismissed by this Court by order darted 10.2.2003 giving liberty to the petitioner to challenge the order dated 8.2.2003 of the Commissioner, Commercial Taxes in appropriate proceeding. Lastly it has been stated that the judgment dated 10.5.2002 of this Court has reached its finality and it is not at all permissible under law to reopen the issue de novo and it was prayed to dismiss the modification petition filed by the petitioner.

7. It has been submitted by the learned counsel for the petitioner that the petitioner had set up a plant for manufacturing TMBP and other CR products under a separate licence granted by the Ministry of Industries, Government of Bihar and in terms of the Industrial Policy of the Government of Bihar the petitioner is entitled to full exemption from sales tax in respect of the raw materials i.e., H.R. Coils which the petitioner has purchased for manufacture of TMBP coils and other CR products and the said TMBP and other CR products are new products not earlier manufactured by the petitioner. It has also been contended that the petitioner by way of diversification of his factory set up a Cold Rolling Mill having a total production capacity of 1,20,000 MT and has also manufactured FHCR, CRGC, CRGP and other Cold Rolled products and the raw materials for the aforesaid manufacture of TMBP and other CR product aforesaid is H.R. Coils and the petitioner is entitled for full exemption on the entire H.R. Coils purchased by him as raw materials for the production of the aforesaid new product. It has also been submitted that this Court in para, 13 of the judgment has inadvertently not mentioned 'other CR products' after the word 'TMBP' in its finding regarding entitlement of exemption of petitioner regarding purchase of H.R. Coils as raw materials for them. It has also been submitted that this is an innocent omission or typographical error. In support of his contention reliance has been placed upon the case of Jayalakshmi Coelho v. Oswald Joseph Coelho, AIR 2001 SC 1084.

8. Learned G.P.I, has refuted the contention of the learned counsel for the petitioner and has submitted that in view of the averments of the petitioner contained in the writ petition and the materials on the record the observation of this Court in para 13 of the Judgment dated 10.5.2002 is legal and valid in which exemption of sales tax was allowed on the raw materials i.e., H.R. coils used for manufacture of TMBP only and it cannot be said to be a case of unin-tentional or accidental slip whereby the words 'other CR products' have not been mentioned therein. The petitioner's company was earlier manufactured ETP from TMBP coils which was imported from various countries and the petitioner thereafter set up Cold Rolling Mill by way of diversification of its factory and the total production capacity of the said Cold Rolling Mill is 1,20,000 MT as per the case of the petitioner in which besides TMBP it also manufactured other C.R. products and the petitioner produced 90,000 MT of TMBP which was used for manufacturing ETP and for the balance capacity of 30,000 MT the petitioner manufacture other Cold Rolled products though the raw materials required for the manufacture of TMBP and other Cold Rolled products are H.R Coils. It has also been submitted that under the Industrial Policy of the Government of Bihar the petitioner was entitled only for exemption on the sales tax regarding the raw materials which are used for the production of new product i.e., TMBP. It has also been submitted that it is very much apparent from the order dated 22.9.98/23.9.98 of JCCT (Admn.), Jamshedpur which is at page 70-A of the brief that exemption was allowed on the raw materials i.e., H.R. Coils only for the manufacture of TMBP which is a new product under the Industrial Policy of the State of Bihar. It has also been submitted that the averments made in the writ petition is very much explicit from which it appears that exemption was sought by the petitioner only in respect of H.R. Coils used as raw materials for the production of TMBP and in this view of the matter the finding of this Court In para 13 of the judgment allowing exemption to the petitioner and the refund of the sales tax regarding the H.R. Coils as raw materials for the manufacture of TMBP, i.e., a new product is quite valid and omission of the words 'other C.R. Products' therein is intentional one and it cannot be said that the said omission is due to innocent inadvertence or accidental slip or typographical error. It has also been contended that in the facts and circumstances of this case the modification, as prayed, is not at all required, as it will reopen the entire matter for adjudication afresh, it has also been submitted that the judgment dated 10.5.2002 passed in CWJC No. 2857 of 2000 (R) has reached its finality and the same has already been acted upon and as such the question of any modification or clarification in the said judgment is not at all required. In support of his contention reliance has been placed upon the case of State of U.P. v. Brahm Datt Sharma, AIR 1987 SC 943, in which the Apex Court has observed that when proceedings stand terminated by final disposal of writ petition it is not open to the Court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action and if this principle is not followed there would be confusion and chaos and the finality of proceedings would cease to have any meaning.

9. The matter for consideration is as to whether the omission of the word 'other C.R products' after the word 'TMBP' in para 13 of the judgment is an inadvertent omission or not.

10. For this we have to look into the averments made in CWJC No. 2857 of 2000 (R). It has been stated in para 9 of the writ petition aforesaid that the petitioner was manufacturing Electrolytic Tin Plate (ETP) and its installed capacity was 90,000 MT and its sole raw material was Tin Mill Black Plate (TMBP) which was totally imported by the petitioner from various countries. There Is averment in para 10 of the said writ petition that the petitioner in order to take advantage of the Industrial Policy had set up a plant for manufacturing Tin Mill Black Plates and other C.R. Products on an investment of Rs. 300/- Crores. The said plant was set up in the said premises itself and the petitioner had also obtained a separate licence by Ministry of Industry, Government of Bihar for manufacturing in Tin Mill Black Plates. In para 11 of the said petition it has been stated that as such the petitioner set up a Cold Rolling Mill (CR) having a total production capacity of 1,20,000 MT in which besides the Tin Mill Black Plates, the petitioner could also manufacture Full Hard Cold Rolled (FHCR). Cold Rolled Galvanized Corrugated sheet (CRGC), Cold Rolled Galvanised Plain Sheet (CRGP) and other cold rolled products. It has been stated in para 14 that the raw material which was required for manufacture Tin Mill Black Plates and other Cold Rolled Products are HR coils which it purchases from TISCO and to some extent from SAIL. There is also averment in para 8 of the writ application that the State Government in terms of the Industrial Policy has also made statutory notification being S.O. No. 478 dated 22.12.1995 in exercise of its power under Section 7(3)(b) of the Bihar Finance Act, which also provides for the same benefit of exemption from payment of sales tax on purchase of raw materials to the industry which has started production on or after 1.9.1995 upto 31.8.2000. Clause 15 of the said notification provides for exemption from payment of sales tax on purchase of raw materials to the units, which have undertaken expansion/diversification/modernization and Clause 15.4 further clarifies that in case of expansion the exemption is available beyond 2/3 of its original production capacity or the average production of three years prior to expansion/diversification/modernisation. However it has been further clarified that in case of diversification the benefit would be available only in respect of such raw materials, which were not earlier utilised by such entrepreneur for production of its finished goods. It is further stated that in terms of the said notification, the petitioner is entitled to full exemption from sales tax in respect of the raw materials viz H.R. Coils which the petitioner purchased for the manufacture of TMBP Coils used for manufacture of Electrolytic Tin Plate. The said TMBP Coil was earlier imported from abroad but the same is now manufactured in your petitioner's factory which is a new product not manufactured earlier by your petitioner. Hence, the raw materials viz. H.R. Coils which were purchased for the manufacture of the said new production namely TMBP Coils are entitled to full exemption from Sales Tax on purchase of such raw materials. Averment made in para 20 of the writ petition is also relevant which is quoted hereunder :--

'That there was some ambiguity in view of the order of ACCT who allowed exemption only on incremental production in excess of 2/3 of installed capacity of old plant Electrolytic Tin Plate (ETP) and as such the petitioner have approached the Joint commissioner of Commercial Taxes (Admn.), Jamshedpur who by his order dated 22.9.1998/23.9.1998 have been pleased to direct that the petitioner is entitled to exemption from payment of sales tax on purchase of raw materials for the period of eight years on the entire raw materials purchased by the petitioner in view of the fact that the said raw materials were purchased by the petitioner for manufacture of entirely new products namely TMBP which was used for manufacture & sale.'

11. In pursuance of the Industrial Policy, 1995 the State Government made statutory notification being S.O. 478 dated 22.12.95 is exercise of its power under Section 17(3)(b) of the Bihar Finance Act. Therefore there has been amendment in the said statutory notification with retrospective effect of the date of the Industrial Policy, 1995. Clause (Ga) of Sub-clause 4 of S.O. 57 dated 2nd march, 2000 is relevant, the English translation of which is quoted hereunder :--

'In case of diversification this facility will be available only on such raw material which has been used for such commercial production and which has not been produced earlier by the Unit and this facility shall be available to the Unit to the extent of the actual production as a result of diversification.'

It is crystal clear from Clause (Ga) that in case of diversification the facility of exemption of sales tax will be available on such raw materials which have been used in the commercial production which has not been earlier produced by the unit and the product manufactured is a new one. It is also relevant to mention here that TMBP was earlier imported from various countries for the manufacture of ETP and by setting Cold Rolling Mill the petitioner's factory started producing a new product known as TMBP used as a raw material for the manufacture of ETP. H.R. Coils is the raw material for the manufacture of said TMBP, a new product. The next important document is the order dated 22.9.98/23.9.98 of JCCT (Admn.), Jamshedpur Division, Jamshedpur whereby exemption from payment of sales tax was granted to the petitioner. The said order is at pages 70-A and 71-A of the brief. The order aforesaid is quoted hereunder for proper appreciation :--

'The Applicant Tinplate Co. has given an application stating that the new unit installed and has started production, is producing different from their earlier product and the raw material is also different. They have clarified that earlier they were producing electrolytic tinplate (ETP) and, the raw material for this Tin Mill Black Plate (TMBP), was being imported from other countries.

Now their company has installed a new unit with an approx. investment of Rs. 300 crores to produce TMBP, the raw material for which is Hot Rolled Coils (HRC). Therefore, the product of the new unit is different from the main unit and this comes under the class of diversification.

In this circumstances they have requested that according to the Notification No. S.O. No. 478 dated 22.12.95 in terms of Clause 15.4 (proviso 3), Section 15/4 proviso 3 they should get full exemption on the purchase of raw material because this is absolutely new and this has never been used as raw material earlier.

Perused the applicant's application and heard the applicant. The facts are as follows.

(I) This is true that the product of their new unit is TMBP which has never been produced earlier. They were importing the TMBP from outside therefore the product is not only different from their main product but it is also an import substitute.

(II) This is also true that TMBP is the raw material of their main unit, whereas raw material of their new unit is Hot Rolled Coils (HRC) which is available from local industry.

(III) In Notification No. S.O. 478 dated 22.12.95. Clause 15.4 Proviso 3) like this. In case of diversification this is valid only for such raw materials which has never been produced earlier by expected raw material.

On consideration of the above points it is clear that in the case of diversification producer will get exemption on such type of raw material purchased which has never been used as raw material in the past. Because the raw material for this new unit is Hot Rolled Coil (HRC), therefore in purchasing the raw material applicant will get full exemption for eight years with effect from the date of production and this exemption as applicable to the entire raw material used.

Kindly inform all concerned.'

It is equally relevant to mention here that the order of the JCCT(admn.), granting exemption from payment of sales tax is very explicit, clear and unambiguous from which it is apparent that exemption from payment of sales tax has been granted on the H.R. Coils as raw material used for the production of. TMBP, a new product only.

12. It is evident from the averments referred to above in CWJC No. 2857 of 2000 (R) that the petitioner has claimed exemption of the sales tax on the H.R. Coils used as raw material for the manufacture of the new product i.e., TMBP. There is no averment at all in the said writ petition regarding any claim of exemption of the sales tax on the H.R. Coils used as raw material for the production of other C.R. products. Even the order of exemption referred to above testifies the fact that exemption was granted to the petitioner regarding H.R. Coils used as material for the TMBP only as new product in pursuance of S.O. No. 478, dated 22.12.95 read with S.O. No. 57, dated 2nd March, 2000. In view of the averments contained in the writ petition of the petitioner read with the order of exemption referred to above coupled with above mentioned statutory notification issued in pursuance of the Industrial Policy of the State of Bihar it was observed in para 13 of the judgment dated 10.5.2002 passed in CWJC No. 2857 of 2000 (R) that 'the petitioner is entitled to full exemption in respect of the sales tax paid on the purchase of the raw materials i.e., H.R. Coils for the production of the new product, i.e., TMBP which was not earlier produced in the unit of the petitioner for manufacture of ETP.' Therefore, it cannot be said that there is innocent omission due to inadvertence or accidental slip or typographical error in the said observation whereby the words 'other C.R. products' have not been included therein after the words 'TMBP'. It is equally relevant to mention here that the purport of the judgment dated 10.5.2002 is that this Court has not at all meant regarding the entitlement of the exemption to the petitioner for use of H.R. Coils as raw material for the manufacture of other C.R. products including FHCR, CRGC, CRGP etc. The observation aforesaid under challenge is based on the materials on the record and there is no omission at all as alleged therein. Furthermore, the ratio of the case of Jayalakshmi Coelho v. Oswald Joseph Coelho (supra) is of no help to the petitioner, in the facts and circumstances of this case as no error has crept in the said observation of account of innocent inadvertence or accidental slip or due to typographical error. And last but not the least, the proceeding of CWJC No. 2857 of 2000 (R) stands terminated finally when the judgment dated 10.5.2002 was delivered and said writ petition was disposed of and it is not open to the Court to reopen the proceeding by means of this miscellaneous application in the garb of modification or clarification in respect of a matter which provides a fresh cause of action failing which there would be a confusion and chaos and the finality of the said proceedings would cease to have any meaning. Viewed thus, this miscellaneous application is not at all maintainable and is fit to be dismissed.

13. I see no merit in this miscellaneous application and the same is hereby dismissed but without costs.