ivil Appeal Nos
2309  2310 of 1989 etc etc
From the Judgment and Order dated 2391988 of the Jammu  Kashmir High Court in Writ Petition No 8781 and CMP No 2519 of 1988
K Parasaran DD Thakur MH Beg Raja Ram Agrawal ML Verma Prashant K Goswami Anil B Divan Pramod Kohli PH Parekh Hari Khanna JPPathak Sandeep Thakral SMThakral BV Desai Ms Vinita Ghorpade EC Aggarwala NN Bhatt Dhiraj Singh and Ashok Mathur for the appearing parties
The Judgment of the Court was delivered by V RAMASWAMI J
Civil Appeal No 2309 of 1989 arises out of an order made by the High Court of Jammu  kashmir in Writ Petition No87 of 1981 dismissing the Writ Petition filed by Ms Pine Chemicals Ltd which is a public limited company manufacturing Rosin Turpentine and Rosin Derivatives and carrying on business at Bari Brahmana Jammu Tawi
The appellants had prayed in the writ petition for quashing the order of assessment dated 20th January 1981 made by the Assessing Authority Incharge Sales Tax Circle Jammu under the for the year ending 3061980 and the penalty order made on February 2 1981 under Section 10 of the in respect of the same period
They had also prayed for a declaration that they are entitled to exemption from payment of tax under the and the Jammu  Kashmir General Sales Tax Act 1962 on the finished goods produced by them for a period of five years commencing from 8th November 1979 when the Company went into commercial production
This main relief had been prayed for on the grounds that the appellant were exempt from payment of sales tax in terms of the Government Orders No 159 Ind dated 2531971 as amended by Government Order No 414 Ind
dated 25th August 1971 read with section 82A of the 
Their further case was that the Government represented and announced a package of incentive for large and medium scale industries including grant of exemption from sales tax both on the raw materials purchased by the industries and the scale of their finished products that acting upon such representation and assurances appellants set up their factory at Bari Brahmana on the land allotted by the State Industrial Development Corporation and that therefore the Government is estopped from charging sales tax on the doctrine of promissory estoppel
The High Court was of the view that 190 the two Government orders referred to above were only declarations of an intention to exempt from payment of sales tax and that they are not exemption notifications under sections 5 of the General Sales Tax Act
The High Court was also of the view that the appellant have failed to prove the necessary factual foundation for invoking the principle of promissory estoppel and that therefore they are not entitled to any relief under that doctrine
In that view the writ Petition was dismissed
It may be mentioned that Civil Appeal No 2310 of 1985 is against an order made in a Civil Misc
Petition No 2519 of 1988 which was also dismissed on 2391988 along with the writ petition
This miscellaneous petition was filed after the judgment in the writ petition was reserved for permission to file reply affidavit on the ground that the assessment files produced at the time of hearing contained certain documents needing certain explanation by the appellants
Both on the ground that it was belated and on the ground that the judgment in the writ petition was delivered only relying on the material placed on record and therefore there was no need for giving an opportunity to the writ petitioners to file a reply statement the learned judgment dismissed this miscellaneous petition also
Civil appeals 3140 50 of 1989 have been filed by Ms KC Vanaspati a firm of partnership manufacturing Vanaspati Ghee at Bari Brahmana Jammu Tawi
They filed writ petition 52 of 1982 praying to quash a sales tax assessment order dated 1611982 assessing them to sales tax for the period from 2nd September 1981 till the end of the month under the Jammu  Kashmir General Sales Tax Act
They also prayed for a mandamus directing the Government and the Assessing officer not to assess them to sales tax or recover any amount on account of sales tax from them for a period of five years from 2nd September 1981 when their industry started commercial production
This relief was prayed again on the ground that Government Order 159 Ind
dated 2631971 as amended by Government Order 414 Ind
dated 2581971 exempted the sales of their finished product of Vanaspati Ghee from sales tax and also on the ground that in any case the Government is estopped from collecting tax on the principle of promissory estoppel
When this writ petition was pending as assessment order was made on 14111984 for the assessment year ending 30th September 1982 including the period 2nd September to 30th September 1981 which was the subject matter of the earlier assessment order and which was questioned in writ petition No 52 of 1982
The validity of this assessment order was the subject matter of writ petition No 822 of 1984 filed by the appellants
The relief prayed for and the grounds on which the relief prayed for were almost identical as that in writ petition No 52 of 1982 except that 191 on the question of promissory estoppel more detailed facts were mentioned in this writ petition
The respondents filed their counter affidavits contending that the said Government orders were not exemption orders under Section 5 of the General Sales Tax Act and that there is no factual foundation for the plea of promissory estoppel
Since we will be dealing with contentions in detail at the appropriate place we are not setting out contentions of the petitioners and the replies of the Government in the writ petitions in details
During the pendency of the writ petitions certain other Government orders came to be passed and certain assessment orders for the subsequent periods were also sought to be made and questioning these actions Ms KC Vanaspati filed Writ petition No 711 of 1987 for a writ of prohibition restraining the Assessment Officer and Government from recovering any sales tax at any point of sale in the series of sales in respect of Vanaspati Ghee manufactured by them for a period of 10 years from 2nd September 1981 when their factory went into commercial production and also for a declaration that SRO 448 dated 22nd October 1982 issued by the Government of Jammu  Kashmir which will be referred to later was illegal and unconstitutional
They had also prayed for a mandamus directing the respondents to refund the sales tax already recovered from them with interest and damages
In this writ petition also they contended that Government Order No 159 Ind dated 2631971 and Government Order 414 Ind
dated 2581971 were exemption orders referable to section 5 of the General Sales Tax Act
They have also referred elaborately to the representations declarations and promises of the Government in support of the plea of promissory estoppel
The respondents had filed a counter affidavit refuting these contentions of the appellants
The High Court dismissed all these three writ petitions by a common order dated 22nd February 1989
Civil Appeals 3148 50 of 1989 have been filed against this common order
Civil Appeal No 3151 of 1989 has been filed by Ms Kashmir Vanaspati Ltd against the judgement of the High Court in Writ Petition No5 of 1989 in which they had prayed for the writ of certiorari to quash certain notices issued to the appellants their selling agents and the owner of the premises where they have their sale depots issued under section 17 of the General Sales Tax Act and for a declaration that the Vanaspati Ghee manufactured by the appellants is exempt from payment of tax at all stages upto January 1992 ie for a period of 10 years from the date from which they have started their commercial production
In this writ petition also the appellants had relied on Government Order 159 Ind
dated 2631971 and Government Order No 414 Ind
dated 25th August 1971 as orders exempting their goods from sales tax under Section 5 of the General Sales Tax Act
They have also relied on certain statement of Government as commitments 192 to continue the incentives and exemptions from sales tax for a period of 10 years on the principle of promissory estoppel
The respondents had filed their counter affidavit
This writ petition was also dismissed on 17th March 1989 almost on the same grounds as in earlier two cases
The first common question that arises for consideration in all these appeals therefore is whether Government Order No 159 Ind
dated 2631971 and the amending Government Order No 414 Ind
dated 2581971 are orders of exemption referable to section 5 of the General Sales Tax Act 1962
The said Government Orders are extracted below  GOVERNMENT OF JAMMU AND KASHMIR INDUSTRIES AND COMMERCE DEPARTMENT Sub Grant of incentives to large and Medium Scale industries in the Jammu  Kashmir State Ref Cabinet Decision No 101 dated 2631971 Government Order No 149 Ind
of 1971 dated 2631971 Sanction is accorded to the grant of the following incentives and facilities to Large and Medium Scale Industries in the State of Jammu  Kashmir  1
Land As provided in Government Order No 206 Ind of 1968 dated 571968
However such land include a reasonable amount of land for the establishment of residential colonies required to house the workers of Large and medium scale Industries and would be granted on the terms and conditions defined in the Government Order No 206 Ind
of 1968 dated 571968
Grant of exemption from the State Sales Tax both on raw materials and finished products for the period of five years from the date the unit goes into production
Grant of exemption from levy of additional surcharge on Toll Tax for an initial period of five years from the date the unit goes into commercial production with respect to raw materials and finished goods
The question of grant of exemption from this levy for further periods would be reviewed thereafter in every 193 individual case and further grant of this concession would only be considered in deserving individual cases
Grant of exemption from the levy of Urban Immovable Property Tax on the lands and buildings belonging to such industries would be available as admissible under the Urban Immovable Property Taxation Rules
By order of the Government of Jammu and Kashmir
Sd GRRenzu Secretary to Government This order was partially modified in GO 414 Ind dated 2581971 which read as follows  GOVERNMENT OF JAMMU AND KASHMIR INDUSTRIES AND COMMERCE DEPARTMENT Sub Grant of incentives to the Large and Medium Scale Industries in the Jammu  Kashmir State Ref Director Industries and Commerce s letter No SSI J4552251 52 dated 22 7 1971 Government Order No 414 Ind
of 1971 dated 2581971 In partial modification of Government Order No 159 Ind
of 1971 dated 2631971 item 2 may be read as under 2
Grant of exemption from the sales tax both on raw materials and finished products
The State Sale Tax paid by Large and Medium Scale Industries on the raw materials procured by them for the initial 5 years of the production would be refunded to such industries
Similarly such industries will be granted exemption from the payment of any state sales tax on their finished products for a period of five years from the date the unit goes into production
194 By order of the Government of Jammu and Kashmir
Sd Secretary to Government
It may be noted at this stage itself that the amending Order GO 414 Ind
dated 25th August 1971 was also published in the Government Gazette
Section 5 of the General Sales Tax Act 1962 empowers the State Government to grant exemption from taxation and that section reads as follows Exemption from taxation The Government may subject to such restrictions and conditions as may be prescribed including conditions as to licence and licence fees by order exempt in whole or in part from payment of tax any class of dealers or any goods or class or description of goods
 The Government orders were made implementing the Cabinet decision No 101 of the same date
There is no ambiguity about the class of persons or dealers to whom the Government orders apply no ambiguity about the class or description of goods and the transactions of sale which are exempt from tax
It has been duly authenticated in terms of Section 45 of the Constitution of Jammu and Kashmir
It is well settled that if power to do an act or pass an order can be traced to an enabling statutory provision then even if that provision is not specifically referred to the act or order shall be deemed to have been done or made under the enabling provision
Thus the Government orders satisfy all the requirements of the provisions of Section 5 of local Act
The section also does not talk of any notification it only talks of a Government order exempting in whole or in part from payment of tax
This is very insignificant if contrasted with Section 41 and 45 of the local Act relating to the fixation of the taxable point refers to a notification by the Government
The Act itself thus makes a distinction requiring a notification to be made for certain purposes and the making of a Government order in respect of certain other purposes
Moreover since there is no form prescribed in this behalf if the particular order in effect is an exemption order whether it takes the form of an order or notification makes no difference
But we may note from the various orders produced before us that normally in the case of grant of tax exemptions as an incentive to industry the exemption orders have generally taken the form of Government order rather than a notification
But in the 195 case of other exemptions though they are also under section 5 of the local Act they have taken the form of notification
Thus the pattern followed in Jammu  Kashmir seems to be that in respect of exemptions from payment of taxes following Cabinet decision on policy matters and incentive they have taken the form of Government order
It is necessary to refer this aspect because in later modifications while superseding the earlier order or notifications the Government have followed the specific pattern and have used the word orders  in cases of grant of incentive and the word notifications  in the other cases
It may also be pointed out that the Government orders 159 and 414 were also understood and treated as such exemption orders as seen from the publicity given them by the Government while inviting entrepreneurs to establish industries in Jammu  Kashmir and certain other communications to the parties
The booklet published by the Government in December 1975 under the heading Incentives to Development of Industries in Jammu  Kashmir contained incentives available for small scale industries as also large and medium scale industries
The above said two Government Orders were reproduced in this booklet as the orders relating to incentives available to large and medium scale industries
Another brochure issued in March 1978 under the heading The State Marches Towards Industrial Development  after noting the efforts made by the Government to invite industrial enterprises from outside the State to locate the industries in Jammu  Kashmir and the response by the industrialist listed the package of incentives under the heading Incentives Available to help you establish your beautiful industrial ventures in the J  K State 
Item 5 of this list related to exemption from certain taxes 
This was followed by the Finance Minister s Budget Speech for the year 1978 79 in which the Finance Minister stated We have to continue a consistent policy of support and protection to industry and attract as many new units as we can both in order to increase the employment opportunity and to achieve better economic growth
It is as such proposed to continue the grant of exemption from payment of sales tax on the goods manufactured by new units for a period of ten years from the date the unit goes into production
 Subsequent to this speech of the Finance Minister another Brochure was published by the Government on the 7th September 1978 which referred to the sustained efforts made by the Government to involve successful and experienced entrepreneurs from all over the country in 196 setting up the industries in J  K and incentives available to the industries
In page 14 of this Brochure Exemption from Sales Tax and toll tax for 10 years and exemption from CST is listed as one of the incentives available in the State
Obviously these announcements references and statements relating to exemption from sales tax refer to GO 159 Ind
dated 2631971 and GO 414 Ind
dated 2581971
No other Government order of notification relating to exemption from payment of sales tax by large and medium industries were bought to our notice as relating to these references in the Brochures and speeches
Thus on a plain reading there could be no doubt that the two Government orders are referable to the power of the Government under Section 5 of the General Sales Tax Act and are exemption orders falling within the scope of that provision
In this connection we may also refer to three decisions of this Court cited at the Bar wherein similar orders of Government without specifying the source of power under which they were made and also not in the form of a notification were considered to be orders granting exemption
In Pournami Oil Mills  Ors
vs State of Kerala  Anr 1986 Supp
SCC 728 this Court had occasion to consider almost identical Government orders as those we are concerned with in these appeals
The first was a Government Order dated 11th April 1979 and the relevant portion of the same reads as follows The Government has considered the recommendations and suggestions of the Committee in detail and they are pleased to approve the following package of measures for promoting industrial development in Kerala SMALL SCALE INDUSTRIES Sales Tax Concessions New industrial units under small scale industries set up after April 1979 will be exempted from the payment of sales tax for a period of five years from the date of production
The second was a notification dated 21st October 1980 made under Section 10 of the Kerala General Sales Tax Act which read as follows In exercise of the power conferred by Section 10 of the Kerala 197 General Sales Tax 15 of 1963 the Government of Kerala have considered it necessary in the public interest so to do hereby make an exemption in respect of the tax payable under the said Act on the turnover of the sale of goods produced and sold by the new industrial units under the small industries for a period of five years from the date of commencement of sale of such goods by any such units by way of tax on their sales shall be paid over to Government and that the sales tax if any already paid by such units to Government shall not be refunded
Provided that such units shall produce proceedings of the General Manager District Industries Centre declaring the eligibility of the units for claiming exemption from sales tax
Provided further that the cumulative sales tax concessions granted to a unit at any point of time within this period shall not exceed 90 per cent of the cumulative gross fixed capital investment of the unit
Explanation For the purpose of this notification new industrial unit under the Small scale Industries shall mean undertakings set up on or after April 1 1979 and registered with the Department of Industries and Commerce as a small scale industrial unit
This notification shall be deemed to have come into force with effect from April 1 1979
 Section 10 of the Kerala General Sales Tax Act empowered the Government if they consider it necessary in the public interest by notification in the Gazette to make an exemption or reduction in rate either prospectively or retrospectively in respect of any tax payable under the Act
It may be seen that the first Government Order dated 11th April 1979 did not refer to any statutory power under which that order was made and it was generally in the nature of an order approving package of measures and incentives for promoting industrial development in Kerala and not in the form of a notification while the second notification was made specifically in exercise of the statutory powers under section 10 of the Kerala Act
It may also be seen that the first Government Order gave more tax exemption while the second notification did not give any exemption relating to purchase tax and also confined the exemption from sales tax to the limits specified in the proviso to the notification
Two main questions were 198 considered by this Court
The first was whether the first Government Order dated 11th April 1979 was an exemption order referable to the powers of the Government under section 10 of the Kerala Act
On this issue this Court held that it was an exemption order and that since there was an enabling provision in the statute empowering the Government to give exemption though the Government Order did not refer to the statutory provision conferring such powers the order should be deemed to have been made under the said enabling provision and that therefore both the orders were made in exercise of the powers under section 10 of the Kerala Act
The second important point that was decided was that the second notification was prospective in operation and that industries set up on or after Ist April 1979 and before the 21st October 1980 would be entitled to the benefit of the whole exemption under the first Government order for the full period of five years from the date they started production and that right could not have been curtailed by the second notification dated 21st October 1980
As the Govt was bound by the rule of estoppel from taking away the right which had accrued to them under the first Government order
Only new industries set up after the 21st October 1980 would have the restricted benefit as provided in the second notification
In Bakul Oil Industries  Anr
vs State of Gujarat  Anr
   the effect of two exemption notifications made in exercise of the Government s power under section 492 of the Gujarat Sales Tax Act 1960 was considered
Under the first notification dated 2941970 certain exemption from payment of sales tax or purchase tax was given in respect of certain specified classes of sales and purchases described in the Schedule to that notification without any specification of period
The second notification dated 11111970 amended the first notification by adding a new entry in the Schedule exempting a manufacturer who established a new industry from the whole of purchase tax and sale tax for a period of five years from the date of commissioning of the industry 
This second notification stated that for the benefit of claiming the exemption the industry shall have been commissioned at any time during the period from Ist April 1970 to 31st March 1975
The assessee in that case had commissioned his plant on the 17th May 1970 and when the Industries Commissioners refused to give him the eligibility certificate for claiming exemption he filed a writ petition under Article 226 before the Gujarat High Court
During the pendency of the writ petition the State Government issued another notification dated 17th July 1971 amending the definition of new industry  and excluding among others decorticating expelling crushing roasting parching frying of oil seeds and colouring decolouring and scenting of oil from the purview of the exemption notification
This Court 199 held that under the first notification dated 941990 the exemption granted was general and did not stipulate as to how long the exemption would remain in operation and that would mean that the exemption granted under the notification was to have operative force till such time that exemption was allowed to remain before being withdrawn by a subsequent notification
Though the second notification dated 11111970 gave exemption for a period of five years from the date of commissioning of the industry this Court was of the view that that exemption cannot be invoked by the assessee in that case for claiming the benefit of tax exemption for five years because the second notification was prospective in operation and would apply only to those new industries which were commissioned subsequent to the issue of that notification and since the assessee in that case commissioned the Mill on 1751970 before the second notification he was not eligible for the benefit of second notification
However the learned counsel for the respondents relied on the observation in the first paragraph at page 192 of the Bakul Oil Industries case supra wherein the learned Judges have held that the State Government was under no obligation in any manner known to law to grant exemption and that it was fully within its powers to revoke the exemption by means of a subsequent notification
These observations will have to be understood in the light of the earlier statement that the second notification dated 11111970 was prospective that is to say if the industry had been commissioned subsequent to 11111970 the assessee would have been entitled to the exemption for the full period of five years
These observations are apposite only to the notification dated 941970 which was the one which the assessee was entitled to
In correctly understanding the ratio of this judgment we have to keep in mind that the date of commissioning of the industry was the relevant factor to the entitlement of the relief
Therefore this is an authority only for the proposition that if the exemption notification did not stipulate as to how long the exemption would remain in operation it would be open to the Government to withdraw the same at any time by a subsequent notification
But the learned Judges did not stop with that but make a further observation that if the exemption notification gave exemption from payment of tax for a particular period and an industry was commissioned after the date of the exemption order but before the exemption was withdrawn the said industry would be entitled to the benefit of exemption for the period specified in the exemption order though the exemption was withdrawn before the expiry of that period if the industry could rely on any estoppel
This is also clear as the learned Judges themselves have observed that the industry commissioned subsequent to the notification could also plead estoppel and observed We must however observe that the power of revocation or 200 withdrawal would be subject to one limitation viz the power cannot be exercised in violation of the rule of Promissory Estoppel
In other words the Government can withdraw an exemption granted by it earlier if such withdrawal could be done without offending the rule of Primissory Estoppel and depriving an industry entitled to claim exemption from payment of tax under the said rule
If the Government grants exemption to a new industry and if on the basis of the representation made by the Government an industry is established in order to avail the benefit of exemption it may then follow that the new industry can legitimately raise a grievance that the exemption could not be withdrawn except by means of legislation having regard to the fact that Primissory Estoppel cannot be claimed against a statute
 The Government Order which was considered by this Court in Assistant Commissioner of Commercial Taxes Asstt
Dharwar  Ors
vs Dharmendra Trading Company and Ors  read as follows Consequently the Governor of Mysore is pleased to sanction the following incentives and concessions to the entrepreneurs for starting new industries in Mysore State 1 Sales Tax A cash refund will be allowed on all sales tax paid by a new industry on raw material purchased by it for the first five years from the date the industry goes into production eligibility to the concessions being determined on the basis of a certificate to be issued by the Department of Industries and Commerce  Though this again was in the form of a Government order giving incentives and concessions this Court held that since there is a power to grant an exemption or concessions under the Statue the mere fact that it did not specify the power under which it was issued will make no difference and that the assessee would be entitled to the benefit of this order
The High Court was of the view that the Government orders are as such not exemption orders but only a policy decision
The learned Judges observed that Section 5 of the General Sales Tax Act does not speak of general order of exemption as the power to grant exemption is related to 201 a class of dealers or goods and that too subject to restrictions and conditions as may be prescribed
So there could no general order of exemption and hence the need for specific order in favour of the petitioner is quite obvious
 On this interpretation the High Court held that the appellant has to first establish that he had set up an industry in the State which conforms to the intent of 1971 order and thereafter ask for an exemption and that on being satisfied the Government will have to make an order of exemption under section 5 of the General Sales Tax Act
We are unable to agree with this reasoning of the learned Judges on the interpretation of section 5 of the General Sales Tax Act
We are of the view that the High Court was in error in thinking that the exemption order should be specific in favour of the appellant
The exemption as can be seen from the provisions of section 5 of the General Sales Tax Act could be in respect of any class of dealers of any goods or class or description of goods
There could be an exemption in an individual also but the power of exemption is not restricted to such cases alone
It may refer to transactions of sale of a particular type of goods or class or description of goods or in respect of any class of dealers or a combination of both
Of course even as an order of exemption the appellant will have to show that he had set up the industry in conformity with the intent of 1971 order and entitled in terms thereof to the exemption in respect of the goods manufactured by him
But that is not to say that after he establishes those facts the Government will have to make a separate order of exemption in relation to him
When the appellants sought to rely on the decision of this Court in Pournami Oil Mills case supra the learned Judges of the High Court sought to distinguish the same on the ground that the Government order in Pournami Oil Mills case supra used the words will be exempted  whereas in the Government orders now under consideration the words used are will be granted exemption  According to the learned Judges there is a vast difference between the two expressions
Whereas the expression will be exempted  is in the nature of an order the expression will be granted exemption  clearly implies a declaration of intention which could result in an order of exemption being issued by taking further follow up action
We have carefully considered this reasoning of the learned Judges
The Government orders follow an earlier Cabinet decision to give incentives to large medium scale industries
The intention was clear that they wanted to attract entrepreneurs from all over the country to come and establish industries in the State of Jammu and Kashmir
It is not with reference to any particular industrialist or industry that the order was intended to be operative
The subject in both the Government orders show that it is grant of incentives
In the light of the context in which expressions came to be used we are 202 of the view that will be granted exemption  has the same meaning as will be exempted  and does not in any way show that it requires a further follow up action
Even in Pournami Oils Mills case supra under the Government order dated 11th April 1979 the industries which are to be benefited are those which are to be set up on or after 1st of April 1979
The exemption is thus with are to be set up on or after 1st of April 1979
The exemption is thus with reference to an industry which is to be established subsequent to the Government order
Therefore in that sense both expression mean the same
It was then pointed out by the learned Judges of the High Court that this Government Order No 159 dated 2631971 dealt with to grant four different types of facilities and incentives and three out of them are covered by different legislative enactments and therefore it was futile to contend that without any follow up action the said order can be treated as notification of exemption under the different statutes
We are unable to agree with this reasoning of the learned Judges also
As we have already pointed out there is no prescribed form for granting exemption under section 5 of the General Sales Tax Act
There is also no prohibition against reference to any other matter or matter in exemption orders under section 5 of the General Sales Tax Act
If the incentives related also to other benefits or rights merely because they are included in the same Government Order does not make it any the less an exemption order so far as the exemption related to payment of Sales Tax
In fact it appears to be that factually the submission of the learned counsel for the State that follow up action was taken in pursuance of the Government order in respect of exemption from the levy of Urban immovable property tax and the exemption from levy of an additional surcharge on toll tax is not correct
Mr Verma learned senior counsel appearing for the State of Jammu  Kashmir in two of the appeals referred to what he called as a follow up action in relation to the exemption from payment of tax under the Urban Immovable Property Act a notification issued on the 3rd of June 1971 in SRO 214 of that date in exercise of the powers conferred by section 23 of the Jammu and Kashmir Urban Immovable Property Tax Act 1962 amending the Immovable Property Tax Rules 1962 by inserting Rule 20A
The relevant portion of this Rule 20A stated that under the provisions of clause f of sub section 1 of section 4 of the Act all buildings and lands owned by proprietors of a factory and used by him for the purposes thereof shall be exempted from the levy of tax etc 
It is true that this notification was subsequent to GO 159 Ind
dated 2631971
But it is seen from the notification itself that the same was previously published on 2531971 in the Government Gazette under section 231 for information of all persons likely to be affected thereby informing that notice is given thereby that it 203 will be taken up for consideration on 741971 and any objection or suggestion which may be received in the Finance Department from any person with respect to the said draft before the said date will be considered by the Government
It is by reason of the fact that this draft rule has been published calling for objection the GO 159 Ind itself stated that the grant of immovable property tax exemption would be available as admissible under the Urban Immovable Property Taxation Rules Thus on the day when the Government order was made there was already the draft amendment rules and therefore it could not be stated that the amendment was a follow up action in pursuance of the Government order
Rather the Government order refers to the draft and says as per the amendment they will be entitled to the exemption
So far as the toll tax is concerned the notification dated 1871977 relied on by the learned counsel for the respondents only extended the benefit of exemption to large and medium scale industries in respect of additional toll leviable till the construction phase is completed  that is in respect of tax on construction materials and it did not relate to the grant of exemption of additional surcharge on toll tax
But it is significant to note that this notification itself stated that the raw materials brought into the stage for the purpose of manufacturing and finished products marketed outside the State by the said industries shall remain exempt from payment of additional toll for a period of ten years in respect of all the units from the date of commencement of production by them emphasis supplied
This definitely shows that there is already an exemption from payment of additional toll in respect of raw materials brought and finished product marketed and the Government order related only to an extension of exemption benefit in respect of the construction phase as well
These notifications under the Immovable Property Tax Act and Toll tax act rather reinforce thus contention of the learned counsel for the appellant that the Government orders themselves are exemption orders under section 5 of the General Sales Tax Act and no follow up action was intended under those orders and the said orders operate as exemption orders
Thus there could be no doubt the Government Order 159 Ind
dated 2631971 and the amending Government Order 414 dated 2581971 are orders of exemption from payment of sales tax issued under section 5 of the General Sales Tax Act
Though the learned counsel for Ms Kashmir Vanaspati Limited and the learned counsel appearing tr Ms KC Vanaspati strenuously argued that the exemption from payment of tax was extended from 5 years to 10 years and the Government was bound to give the exemption for 10 years on the ground of promissory estoppel
We think there is absolutely no factual foundation for such a plea
The only reference to 10 years was in 204 the Finance Minister s speech and in the Brochure dated September 1978
The Brochure only lists the concessions and incentives available generally
It does not refer to any Government decision or Cabinet decision or any order of the Government
No decision of the Government let alone a Cabinet decision or any Government order extending the period of exemption was produced before us
It is not clear on what basis the Brochure mentioned 10 years
Further the reference in the Brochure is not for sales tax alone but also refers to toll tax and central sales tax
It is noticed that so far as toll tax is concerned there are Government orders exempting the industries covered by the notifications for a period of 10 years
The Finance Minister s statement made in March 1978 only refers to a proposal to continue the grant of exemption from payment of sales tax for a period of 10 years
This statement also is not unambiguous
It may mean that the benefits under the Government Orders 159 and 414 may be continued for another 10 years without withdrawing the same
This is merely a budget proposal which could give rise to no right to the appellants
As no decision order or notification is produced extending the period of exemption in relation to sales tax it is not possible to consider the claim of the appellants for exemption for 10 years on the ground of promissory estoppel
In exercise of the powers under section 47 of the General Sales Tax Act the Government notified that In supersession of all the previous notifications on the subject the Government hereby specify in column 3 of the Schedule appended thereto the point of tax on the turnover in the series of sales of goods specified in column 2 of the said schedule
This was notified and published as SRO 195 dated 3131978
The schedule in column 2 gave the description of the goods and the column 3 point of tax
This schedule was amended by SRO 448 dated 22nd October 1982 the relevant portion of which read as follows SRO 448 
In exercise of the powers conferred by sub section 7 of section 4 of the Jammu  Kashmir General Sales Tax Act 1962 XX of 1962 the Government hereby direct that in notification SRO 195 dated 3131978 the following amendments shall be made namely  1 Sub item C in column 2 under the heading Goods manufactured in the State appearing against serial No 2 shall be numbered as sub item d and before sub item d as so numbered the following shall be inserted as sub item c c Vanaspati and edible Oils
205 i When sale is made by 2nd sale in the State manufacturer to another ie Sale is made by dealer in the State for such dealer who purchases re sale
goods from the manufact urer
ii When sale is made by Ist sale in the State ie manufacturer to when sale is made by the consumer direct
manufacturer
By order of the Government of Jammu  Kashmir
 Before the High Court the vires of SRO 448 was questioned on various grounds
However the High Court rejected all those contentions and held that it is valid and that it has superseded the exemption if any granted under GO 159 and 414
Mr Thakur the learned counsel for Ms Kashmir Vanaspati and Mr Beg learned senior counsel for Ms KC Vanaspati apart from contending that SRO 448 was ultra vires also contended on merits that this had no effect of superseding exemption granted under the said orders
Since we are agreeing with the learned counsel that this SRO did not and could not supersede the exemption granted under the said Government orders we are not going into the question of vires of the same
As may be seen from SRO 195 dated 3131978 the notification was made by the Government in exercise of the power under section 47 of the State Act which related to the power to fix a point of sale for purposes of taxation in the series of sales of goods
In fact the notification specifically stated that it is made in supersession of all previous notifications on the subject and specified the point of tax on the turnover in the series of sales of goods specified in column 2 of the Schedule emphasis supplied
The said notification therefore could not have and did not supersede the exemption notification SRO 448 dated 22nd October 1982 that vanaspati and edible oils are taxable at the point specified therein it only means that those vanaspati and edible oils which are not exempted are taxable at the points specified in the Schedule
It may be noted that the Government order gave exemption only for five years from the date of commencement of the industry and those industries who had been manufacturing for more than that period and also those industries who were not entitled to the benefit of the said Government order would be liable to pay sales tax on the vanaspati manufactured by them and the said goods were 206 liable to tax at the point specified in the Schedule
In the Scheme of levy of single point taxation there could be no doubt the Government could fix and point in the series of sales for the Government have fixed the sale by the dealer that if the second sale as the taxable point no exception can be taken
In that sense no question of vires on the ground of lack of power would arise
Under Section 41 of Jammu  Kashmir General Sales Tax Act the goods are taxable only once that is it could be taxed only at one point of sale
We have already held that the Government Orders 159 and 414 are exemption orders and exempt the sale by appellants of their manufactured products
The exemption would not arise unless the goods are taxable at the point of their sale
Thus the effect of exempting their sale is that the said goods manufactured by them could not be taxed at the second or subsequent sales also as that would offend section 41 which provides for single point levy
In case where there are no exemption orders and the state fixed the second or subsequent sale as point of taxation the first or prior or subsequent sales are not exempted sales but are not taxable sales
Therefore SRO 448 fixing the sale of vanaspati ghee by a dealer would not be applicable to vanaspati ghee manufactured by the appellant which are exempt under the said Government orders
No question of vires of SRO 448 thus arises in these cases
Thus we are not called upon to decide the vires of SRO 448 on the ground of discrimination as in our view the goods manufactured by the appellants are exempt under Government Orders 159 and 414 and that exemption covers entire series of sales of that very goods
As already noticed in the case of Pine Chemicals the assessment orders related to their liability for tax under the in respect of their interstate sales
The High Court has not considered their claim for exemption under section 8 2 A of the 
They seem to have proceeded on the assumption that if Government orders 159 and 414 above referred to are exemption orders or if the dealers were entitled to exemption under the State Act on the principle of promissory estoppel they would automatically be entitled to the benefit of section 8 2 A of the 
However probably since the High Court was of the view that the said Government orders are not exemption orders and that the appellant had not laid the factual foundation for claiming the benefit of promissory estoppel the question of consideration of the applicability of section 8 2 A of the did not arise and was not considered
In fact the appellants in the special leave petition after claiming that the Government orders above referred to are exemption orders 207 and that in any case on facts they have established their case of promissory estoppel and the Government is bound to give exemption stated as a ground that in the High Court the Advocate General made a concession to the effect that he was not disputing that if the appellants were entitled to exemption in respect of finished goods under section 5 of the Jammu  Kashmir Sales Tax Act they would automatically be exempted under section 8 2 A of the in respect of interstate transaction
 On the basis of this concession it appears that the appellants have also filed a review petition against certain observations made in the judgment of the High Court
However in the reply filed by the State in the special leave petition in this Court of the Government have denied that any concession was made by the Advocate General of the State in the High Court and that in any case the concession referred to related to a question of Law and that the State is entitled to press that point in this Court
In these circumstances we have permitted the State to raise the question that even if the said Government orders were exemption orders under section 5 of the General Sales Tax Act the appellants are not eligible for exemption in respect of their interstate sales under section 8 2 A of the 
Under section 61 of the every dealer who sells goods in the course of interstate trade or commerce shall be liable to pay tax under that Act
A sale of goods shall be deemed to take place in the course of interstate trade or commerce if the sale occasions the movement of goods from one state to another or if effected by a transfer of documents of title to the goods during their movement from one State to another
The rate of tax on sales in the course of inter state trade of commerce is fixed under section 8 of the 
The tax payable by any dealer under the Act shall be collected in the State from which the movement of the goods commenced by the assessment officers of that State on behalf of the Government of India in accordance with the provisions of section 92 of the 
The learned Advocate General of Jammu  Kashmir contended that even if the sale of a particular commodity is exempted from payment of tax under the local Act the dealer selling the same in interstate trade or commerce would be liable to pay central sales tax under the provisions of section 61A of the 
His further submission was that if section 61A of the is applicable to a particular transaction of sale section 8 2A of the would not be applicable to that transaction
Section 61A of the Act reads as follows 208 1 A A dealer shall be liable to pay tax under this Act on a sale of any goods effected by him in the course of inter state trade or commerce notwithstanding that no tax would have been leviable whether on the seller or the purchaser under the sales tax law of the appropriate State if that sale had taken place inside that State
 In other words the liability of a dealer to pay Central Sales Tax on his interstate transactions of sale will not be affected merely on the ground that if the same dealer had sold the goods locally he would not have been liable to pay tax under the local Sales Tax Act
This is part of the general provisions of Section 6 of the making a dealer liable to tax on inter state sales
The rate of tax payable on inter state sale is fixed at 4 in the case of sales to a registered dealer of goods of the description coming under section 8 2 of the or where the sale is to a Government and at 10 under Section 8 2 b of the in the case of goods other than declared goods
In respect of declared goods under section 82 a of the shall be payable at twice the rate applicable to sale or purchase of such goods inside the appropriate State
In view of the provisions of Section 15 the State law can impose tax on sale of declared goods only at a rate not exceeding four per cent of the sale price and such tax also shall not be levied at more than one stage
If the tax has been levied under the State Law on declared goods and such goods are sold in the course of inter state trade and tax has been paid under the Central Sales Tax the tax levied under the State law shall be reimbursed to the person making such sale in the course of inter state trade
Section 8 2A of the is in the nature of an exception to these general provisions
That sub section reads as follows 82 A Notwithstanding anything contained in sub section 1 A of section 6 or in sub section 1 of this section tax payable under this Act by a dealer on this turnover in so far as the turnover or any part thereof relates to the sale of any goods the sale of as the case may be the purchase of which is under the sales tax law of the appropriate State exempt from tax generally or subject to tax generally at a rate which is lower than four per cent whether called a tax or fee or by any other name shall be nil or as the case may be shall be calculated at the lower rate
Explanation For the purpose of this sub section a sale or 209 Purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of the appropriate State if under that law the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods
It may be seen from these provisions that Section 8 2 A of the does not have any overriding affect on the scheme of taxation relating to inter state sale of declared goods
There is also scope for the applicability of Section 6 1 A of the when the inter state sale takes place when the goods are in transit and is effected by transfer of documents of title to the goods during their movement from one State to another
There may be other instances also which may not affect the levy under section 61A of the as in case where Section 82 A of the was not applicable though the transaction was not taxable under the State law
Suffice it to say that only certain cases which would have been covered by Section 61 A of the have been carved out for the purpose of exemption subject to the applicability of section 8 2 A of the 
Section 6 1 A of the has not become otiose by reason of inclusion of that section in the non obstante clause in section 82 A
Both provisions therefore operate and they should not be read so as to nullify the effect of one another
On a plain reading of section 82 A of the it deals with the liability of a dealer to pay tax under the Act on his inter state sales turnover relating to any goods on the turnover relating to such goods if the sale had taken place inside the State is exempt from payment of sales tax under the sales tax law of the appropriate State
It provides that if an intra state sale or purchase of a commodity by the dealer is exempted from tax generally or subject to tax generally at a rate which is lower than 4 per cent then his liability to tax under the when such commodity is sold on inter state trade would be either nil or as the case may be shall be calculated at the lower rate
Explanation states as to when the sale or purchase shall not be deemed to be exempt from tax generally under the sales tax law
That is to say an intra state sale or purchase of a commodity shall not be deemed as exempt from State tax generally if the exemption is given only 1 in specified circumstances or under specified conditions or 2 the tax is leviable on the sale or purchase of such goods at specified stages or 3 otherwise than with reference to the turnover of 210 the goods
These conditions or limitations are therefore with reference to the transaction of sale or purchase
The main clause deals with the turnover of a dealer  which the term would include any dealer  or any class of dealers 
The existence or otherwise of the three limitations under the explanation above referred to on claiming exemption under section 82 A of the will therefore have to be tested with reference to the transaction of sale or purchase as the case may be of the dealer who claims the transaction of sale or purchase as the case may be of the dealer who claims the exemption in respect of his intra state sale of purchase of the same goods
Thus the specified circumstances and the specified conditions referred to in the explanation should be with reference to the local turnover of the same dealer who claims exemption under section 82 A of the 
The learned Advocate General for the state contended that the conditions that the industry should have been set up and commissioned subsequent to the Government orders 159 and 414 above referred to and the commodity sold by him in order to claim the exemption under the said Government order shall be those manufactured by that industry are conditions or specified circumstances within the meaning of the explanation and therefore the dealer Pine Chemicals is not entitled to any exemption under section 8 2 A of the 
We are unable to agree with this submission of the learned counsel for the state
The facts which the dealer has to prove to get the benefit of the Government orders are intended only to identify the dealer and the goods in respect of which the exemption is sought and they are not conditions or specifications of circumstances relating to the turnover sought to be exempted from payment of tax within the meaning of those provisions
The specified circumstances and the specified conditions referred to in the explanation should relate to the transaction of sale of the commodity and not identification of the dealer or the commodity in respect of which the exemption is claimed
These conditions relating to identity of the goods and the dealer are always there in every exemption and that cannot be put as a condition of sale
We have already held that not only sale by the manufacturer to dealer that is exempt under the Government orders but since the General Sales Tax Act had adopted only a single point levy even the subsequent sales would be covered by the exemption order
Therefore the question whether the tax is leviable on the sale or purchase at specified stages does not arise for consideration
This is not also a case where the exemption is with reference to some thing other than the turnover of the goods
In this connection we may refer to two decisions of this Court reported as Indian Aluminium Cables Ltd  Anr
vs State of Haryana 38 211 STC 108 and Industrial Cables India Ltd vs Assessing Authority
1986 sup
SCC 695
The question for consideration in this case was whether the transaction of sale which would be covered by section 5 2a iv of the Punjab Sales Tax Act could be said to be exempt from tax generally within the meaning of section 82a of the 
Section 5 2A in effect provided that in determining the taxable turnover of a dealer his turnover on iv sales to any undertaking supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the Indian Electricity Act 1910IX of 1910 of goods for use by it in the generation or distribution of such energy is to be deducted
That is to say that the transaction covered by this clause are exempt from Punjab Sales Tax Act
As may be seen from the provision the two conditions relate to the purchaser company being a licensed undertaking supplying electrical energy to the public and the goods sold are for use by the said undertaking in generation or distribution of such energy
This court rejected the contention of the dealer that they are descriptive of the goods and not conditions and held that they are conditions under which exemption is granted and that therefore section 82A of the was not attracted
As may be seen the two conditions are attached to the sale of the dealer who is liable to pay sales tax
The description of the person who is to be the purchaser is not intended to identify the seller but relate to a condition of the sale being to a person of that description
The condition that the goods sold are for use by the licensed undertaking in the generation or distribution of electrical energy is again a condition attached to the sale and not identification of the goods 
The goods are already identified
If the same goods had been sold to a person who is not a licensed undertaking andor not for purposes of use in the generation or distribution of electrical energy the transaction would be liable to levy of tax under local Sales Tax Law
If the conditions specified are satisfied then that transaction which would have otherwise formed part of the taxable turnover is allowed to be deducted from the total taxable turnover
Clearly therefore they are specified circumstances or specified conditions within the meaning of the explanation to section 82A of the and therefore cannot be treated as exempted from tax generally
There is also another judgment of this Court namely International Cotton Corporation P Ltd vs Commercial Tax Officer  Ors 35 STC 1 wherein they have generally considered the scope of section 8 2A of the 
After a consideration of the arguments the learned Judges observed 212 Reading section 61 A and section 82A together along with the explanation the conclusion deducible would be this Where the intra state sales of certain goods are liable to tax even though only at one point whether of purchase or of sale a subsequent inter state sale of the same commodity is liable to tax but where that commodity is not liable to tax at all if it were an intra state sale the inter state sale of a particular commodity is taxable at a lower rate than 3 per cent then the tax on the inter state sale of tax commodity will be at that lower rate
A sale or purchase of any goods shall not be exempt from tax in respect of inter state sales of those commodities if as an inter state sale the purchase or sale of those commodities is exempt only in specific circumstances or under specified conditions or is leviable on the sale or purchase at specified stages
On this interpretation section 6A as well as section 8 2A can stand together In view of the pronouncement of this Court in above decisions and on our interpretation we do not consider it necessary to refer to the decisions of the High Courts cited at the bar
In the result we hold that the dealer Pine Chemicals is entitled to claim the benefit of exemption under GO 159 dated 2631971 and GO 414 Ind dated 2581971 in respect of his turnover on inter state sales and the benefit of exemption is available for a period of five years from the commencement of commercial production
Mr Verma learned counsel appearing for the State Government then contended that the said Government orders were superseded by SRO 80 dated 1231982 hereinafter referred to as SRO 8082 and Vanaspati Ghee has been made liable to tax at the rate of eight per cent
The goods manufactured by Ms Pine Chemicals are also made taxable as falling under the residuary item at the rate of 8 per cent
SRO 80 dated 12th March 1982 reads as follows In exercise of the powers conferred by sub section 1 of section 4 of the Jammu  Kashmir General Sales Tax Act 1962 XX of 1962 and in supersession of all the previous notifications issued on the subject the Government hereby direct that the tax on the taxable turnover shall be payable at the rates specified in schedule A 1 to A XI annexed hereto  Further the Government in exercise of the powers conferred by section 5 of the said Act and in supersession of all the previous notifications issued on the subject hereby direct that the goods 213 persons and classes of persons as specified in Schedule B annexed hereto shall be exempt from payment of tax leviable under said Act
Explanation Nothing contained in schedule B  shall be deemed to exempt any goods specified in Schedule A I to A XI both inclusive
This notification shall come into force with effect from 1 4 1982
By order of the Government of Jammu  Kashmir
 It then sets out the description of the goods and the rates at which they are taxable in Schedule A Annexures I to XI
Items 1 to 3 schedule A Annexures IV reads SCHEDULE A IV Goods chargeable to tax at 8 1
Hydrogenated vegetable oil Vanaspati and palm oil of all sorts
Lubricants
All goods other than items 1  2 above and those specified in other Schedules
x x x In Schedule B goods except under section 5 of the General Sales Tax Act are set out
Vanaspati Ghee is not one of the items of goods exempted under Schedule B
The learned counsel for the appellants contended that the second paragraph in the SRO only superseded the notification  under Section 5 of the General Sales Tax Act made earlier and did not supersede and did not have the effect of superseding the Government orders made in pursuance of policy decisions taken by the Cabinet exempting from payment of tax as an incentive to the industries
In any case the exemption for five years granted under the said Government orders could not be withdrawn so far as the appellants are concerned both on the ground that SRO 8082 was prospective in operation and also on the ground of promissory estoppel
214 There could be no doubt that SRO 8082 was prospective in operation
We have noticed in the earlier part of this judgment that the Government seems to have been following as a pattern that is in the case of incentives to industries the exemption orders had taken the form of a Government order
Government order 159 and 414 were also in pursuance of a Cabinet decision
SRO 8082 though a Government notification under the Business Rules it is issued by the Ministry concerned
In the circumstances we have also a serious doubt whether the said incentives could have been superseded by the said SRO 8082
In this connection we may also refer to Government order No 54 Ind of 1983 dated 2621983 again an order made in pursuance of Cabinet decision which reads as follows CIVIL SECRETARIAT INDUSTRIES  COMMERCE DEPARTMENT GOVERNMENT OF JAMMU AND KASHMIR Incentives for development of LargeMediumSmall Scale and Tiny Sector Industries in Jammu  Kashmir
Cabinet Decision No 57 dated 521983 GOVERNMENT ORDER NO
54 IND OF 1983 Dated 26 2 1983 In supersession of all previous orders it is ordered that the package of incentives as per Annexure to this order will now be applicable to the existing and new Large MediumSmall Scale and Tiny Industrial Units
Such of the Industrial Units which have partly availed of the package of incentives sanctioned under Government Order No 391 Ind
of 1972 dated 2161972 and subsequent orders issued in amplification thereof as well as such units which have become entitled to the availment of the earlier package of incentives shall have the option to get benefit under the new package of incentives sanctioned hereunder for the remaining period of their entitlement
215 3
X X X 4
X X X 5
X X X 6
X X X By order of the Government of Jammu  Kashmir
JA Khan Secretary to Government Industries and Commerce Department
 The annexures to this order contain the incentives benefits privileges and priorities given to large medium and small scale industries and tiny industries
So far as sales tax payable by large and medium scale industries which is relevant for our purpose paragraph XIIXIII states as follows XIIXIII
GSTCSTAdditional Toll Tax on SSI Units and MediumLarge Units i No GST shall be charged on any raw material purchased by any industrial units except on items brought on a negative list
ii X X X iii X X X iv An equivalent amount of loan would be granted interest free to Medium and Large Units for a period of 10 years against GSTCST paid in the State each installment of loan shall be recoverable in 7 years after a moratorium of 3 years the total amount of tax loan at any point of time not to exceed 33 of capital investment or Rs 25 Lakhs whichever is less
Penal rate of interest may be prescribed for delay in repayment of loan
v X X X vi X X X 216 It may be seen that paragraph I of this order refers to supersession of all previous orders  and then speaks of package of incentives and then states as applicable to existing large and medium scale industries also
If SRO 8082 had superseded GO 159 and 414 does it mean that this Government order has superseded SRO 8082 and if that is so what are incentives available after SRO 8082 to the existing industries This Government order is thus consistent with the pattern followed and deals only with incentives to industries
In the second paragraph an option has been given to the industry which has not utilised the full benefit of the earlier exemption either to continue to enjoy the earlier exemption given by way of incentive or to opt for the scheme of incentive under the new Government order
Thus all these provisions are consistent with the case of the appellants that neither SRO 8082 superseded GO 159 and 414 nor Government order 54 dated 2621983 took their right to continue to enjoy the exemption benefit for the total period of five years as provided in the said Government orders
The learned counsel for the appellants also contended that they are entitled to enjoy the benefit for the full period of five years both on law as also on the ground of estoppel
We have already noticed that in Bakhul Oil case supra this Court held that in the case of a grant of exemption without specifying any period for which the exemption is available the Government could withdraw the same at any time
Though in that case on facts no further question can arise since it was held that the dealer was not entitled to the benefit of the subsequent notification giving the exemption for a period of five years on the ground that the notification was prospective in operation and therefore not applicable to the dealer in that case this Court made certain further observations to the effect that even in the case of exemption for a particular period it could be withdrawn at any time subject of course to the plea of estoppel
In Pournami Oil Mills case also the learned Judges appear to have given the benefit of exemptions for the full period even after the withdrawal on the basis that the industry was set up in pursuance of some representation made by the Government amounting to estoppel
In the present appeals also there are lot of materials to show that the Government made representations to industry that they would give tax exemptions and other incentives and invited entrepreneurs to establish their industries in J  K Relying on those representations each of these appellants have set up their industries
It is not necessary to set out these factual details in the judgment
Suffice it to say that we have carefully considered all the materials and are of the view that the appellants acting on the representations had set up their industries
Therefore they are entitled to claim the benefit of the exemption for the entire period of five years calculated 217 as per the terms of the Government orders even if it were to be held that SRO 8082 superseded the earlier exemption orders
It was then contended by Mr Verma learned counsel appearing for the State that in the assessment order relating to Assessment Year 1981 82 for the period from 191981 to 3081982 in the case of KC Vanaspati there is a finding that the assessee had collected sales tax in respect of their sales turnover for which the exemption is now claimed and that under section 8 B of the JK General Sales Tax Act the said amount is refundable to the Government
As has already been seen there was an assessment order for the period covering from 2nd September 1981 to 30th September 1981 which was the subject matter of Writ Petition No 52 of 1982
The same period merged in the assessment order 191981 to 3081982 and consolidated assessment order was made and that was subject matter of Writ Petition No 882 of 1984
Both these assessment orders were regular assessment orders and they are not section 8 B orders of the Local Act
They were made on the findings that Government Orders 159 and 414 above referred to are not exemption orders and the assessee could not be said to have acted upon any representation by the Government that they are exemption orders on the ground that if they had relied on those orders as exemption orders they would not have collected any tax in respect of their sales and that therefore the Government was not precluded by any principle of promissory estoppel from assessing their sales turnover
The assessees had challenged these assessment orders mainly on the ground that the Government orders were exemption orders and that in any case the State is precluded from levying any sales tax on the ground of promissory estoppel
The learned Judges of the High Court held as already stated that the said Government orders were not exemption orders but were only in the nature of declaration of intention to exempt the said industries from payment of sales tax and that the assessee had also not established any right for non payment of tax on any ground of promissory estoppel
For holding that the assessees could not be said to have relied on any representation from the Government that they would be exempted from payment of tax the learned Judges relied on the facts that the assessees had collected sales tax or the sales tax element had gone into the fixation of price of Vanaspati Ghee showing thereby that the appellants had not relied on any representation from the Government that their sales are exempt from payment of tax
Since the assessment orders were regular assessment orders on the ground that their sales are taxable sales the question of applicability of section 8 B of the local Act does not arise
That question arises in view of our finding that their sales turnover are exempt but still under section 8 B of the Local Tax they are liable to refund any money collected by way of a tax
Since 218 neither the High Court had any occasion to decide this question of applicability of section 8 B of the Local Act on the basis that the sales turnover were exempt from payment of tax nor the assessing authorities had any opportunity to decide or made any order under section 8 B of the Local Act separately we think that the entire question relating to the applicability of section 8 B of the Local Act and even the question whether there was any collection of sales tax will have to be left open
The learned counsel Mr Verma strenuously contended that there is a finding in the assessment orders that the appellants had collected tax and that finding had not been either challenged or set a side by the High Court and that therefore they should be directed to refund the amount collected
We are not able to agree with this contention of the learned counsel
As already stated the assessment order itself was questioned in the writ petitions filed by the assessees
The High Court had proceeded on the basis that the Government orders are not exemption orders and that the Government also was not precluded from collecting tax on any ground of promissory estoppel and that therefore the question of applicability of section 8B of the Local Act did not arise before the High Court
It may be mentioned it is not the case of the State that they had collected any amount in excess of the percentage of sales tax ie collectable in respect of taxable Vanaspati sales
In the light of our findings that the sales were exempt the question now arises whether the assessees had collected any tax and whether the amount was collected by way of tax and whether any element of sales tax has merged in the fixation of the price and that amounts to collection of sales tax
These questions will have to be decided if the State considers that the assessees had collected sales tax in separate proceedings that may have to be initiated under Section 8 B of the Local Act or when the State demands payment of the money under section 8 B of the Local Act
Suffice it so say that we are unable to agree with the observations of the learned Judges of the High Court that merely because in the balance sheet a reserve fund is made for payment of sales tax or on basis of a letter of Kashmir Vanaspati giving a break up of the sales price of Rs 238 it can be said to be conclusively established that sales tax had been collected
Any way we do not want to say anything because the matter will have to be considered by the authorities concerned in case they want to invoke Section 8 B of the Local Act on the basis that the said government orders gave exemption from payment of sales tax in respect of these assessees for a period of five years as we have held
In this view we are also not going into the question as to the validity of section 8 B of the Local Act and we leave open that question which was outlined before us
Thus interpretation of section 8 B of the Local Act and the question of fact of collection and the liability to refund all have to wait till a demand is made by the competent authority for refund of the amounts 219 in exercise of their power under section 8 B of the Local Act
The assessees have made some deposits in pursuance of interim orders made by this Court pending the appeals
It is also stated that during the pendency some other amounts were also paid by the assessees in addition to the amounts paid as per the directions given by the Court
The refunds of this money and the liability of the State Government to pay any interest while refunding the deposits will all have to await the demand if any that may be made by the Government under section 8 B of the Local Act
However we make it clear that the stay of refund of money collected as aforesaid will be only for a period of six months by which time the Department should initiate proceedings if any under Section 8 B of the Local Act if so advised
To sum up  GO 159 Ind dated 2631971 and GO 414 dated 2581971 are exemption from payment of sales tax orders referable to the powers of the Government under Section 5 of the J  K General Sales Tax Act and that exemption covers the entire series was available only for a period of five years from the date of commissioning of the industries and not for ten years
The benefit of the exemption under the said Government orders are also available in respect of the inter State sales of the same commodities for a period of five years from the commencement of the commercial production
The appeals are accordingly allowed to the extent mentioned above
However there will be no order as to costs
VPR Appeal allowed


Summary:
The appellant in Criminal Appeal No 55389 was prose cuted for selling adulterated supari with admixture of saccharin
He filed a petition in the Kerala High Court under section 482 of the Criminal Procedure Code for quash ing the criminal proceedings which was dismissed by a single judge
Against the decision of the single judge an appeal was filed in this Court
The appellant In Criminal Appeal No 28391 was also prosecuted for selling adulterated Supari but was acquitted by the Chief Judicial Magistrate Palakkad
On appeal the Kerala High Court set aside his acquittal and convicted him under section 161 a i of the Prevention of Food Adul teration Act and sentenced him to imprisonment for 6 months and a fine of Rs1000
Against the order the Kerala High Court an appeal was filed in this Court
The appellant In Criminal Appeal No 28491 was con victed ruder section 7i and v read with sections 16i a ii of the prevention of Food Adulteration Act for sale of adulterated supari with admixture of saccharin
He filed a Revision Petition in the Kerala High Court and a Single Judge dismissed the same
Against the order of the Single Judge an appeal was filed in this Court
The facts in the connected civil appeal Nos 3708 1389 are that a batch of writ petitions was filed in the Andhra Pradesh High 391 Court for a declaration that the admixture of saccharin in supari was in accordance with Rule 44 of the Prevention of Food Adulteration Rules 1955 and for restraining the re spondents from interfering with the business of sale of supari
A Division Bench of the High Court allowed the writ petitions
Against the decision of the Division Bench Union of India has filed appeals in this Court
Civil Appeal No 189791 is directed against the order of the Division Bench of the Kerala High Court which held that the learned Single Judge should have declined jurisdic tion for the reason that the relief claimed was of a general character for a declaration that the admixture of saccharin in Roja Scented betelnut is not a blanket ban under Rule 47 read with Appendix B  of the Prevention of Food Adultera tion Rules 1955
Criminal Appeal No 72291 is directed against the order of the High Court of Kerala setting aside the order of acquittal passed by the trial court and remanding the matter to the trial court for fresh disposal according to law
The High Court did not agree with the submission that the arti cle of Supari was not adulterated as saccharin could be added to Supari
Accordingly it held that saccharin could not be added to supari and consequently remanded the matter to the trial court for fresh disposal according to law
In appeals to this court it was contended on behalf of the accused that on the construction of Rule 44c it per mits sale of Article of food which contains artificial sweetener with the standard as laid down in Appendix B  to Prevention of Food Adulteration Rules 1955
Disposing the appeals this Court FIELD 1
Rule 44g of the Prevention of Food Adultera tion Rules 1955 indicates that sale of any article of food which contains artificial sweetener is banned
The ban is lifted only if such artificial sweetener is permitted to be added to the article of food for which standards have been laid down in Appendix B  to the Rules
Rule 47 in other form specifically bars saccharin or any other article of artificial sweetener to be added in any article of food except where the addition of such artificial sweetener is permitted in accordance with the standards laid down in Appendix  B 
Thus both Rules 44g and 47 constitute a total blanket ban on the addition of any artificial sweeten er including saccharin to any article of food 392 unless standards for that article of food is prescribed which authorises the use of such an artificial sweetener
398 G 399 A B 2
The prescription of standard of saccharin or any artificial sweetener in Appendix B  is really irrelevant
It is not the question of standard being prescribed for saccharin which is irrelevant what is relevant is the stand ard being prescribed in Appendix B  of the article of food which is being sold and which standard permits user of saccharin
This is the real intention of the legislature while enacting Rule 44g of the Rules
399 E F 3
What one has to see is the article of food in which the artificial sweetener is sought to be added
The article which was being sold should contain a standard and the standard should permit artificial sweetener to be added
If the standards for that article of food is provided in Appen dix B  to the Rules and such standards permit the addition of saccharin or any other artificial sweetener then and then only saccharin or any other artificial sweetener could be added and not otherwise
399 A C 4
Admittedly no standard has been laid down for Pan Masala or Supari ie the article of food which was being sold
Therefore the exception permitted by clause g of Rule 44 has no application and no relevance
398 H 399 A Pyarali K Tejani vs Mahadeo Ramchandra Dange and Ors   explained and applied
State of Maharashtra vs Ranjitbhai Babubhai Suratwalla  Thummalapudi Venkata Gopala Rao vs The State
 Ms Wahab and Co a proprie tary concern represented by its  proprietor NA Wahab son of N Mohammad Sheriff vs Food lnspector
Tiruchirappalli Municipal Corpn Trichy
1990 LW Crl 437 Kailash vs The State of Rajasthan  State of Assam vs Ram Karani anti Ors 1987 3 All India Prevention of Food Adulleration Journal 153 Ujjain Municipal Corpn
 Ujjain vs Chetan Das 1985 I FAC 46 overruled
State by public prosecutor vs
KR Balakrishnan  Food Inspector vs Usman  Krishna Chandra In jail vs State of Uttar pradesh  approved