IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.11520 of 2006 (O&M) Date of decision: 3.8.2010 Jai Bharat Gum & Chemicals Ltd. -----Petitioner. Vs. The State of Haryana and others. -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Mr. Sandeep Goyal, Advocate for the petitioner. Mr. Ajay Gupta, Addl.A.G., Haryana. --- ADARSH KUMAR GOEL, J. 1. This petition seeks quashing of order dated 15.2.2006, Annexure P-12, passed by the Haryana Tax Tribunal. 2. The petitioner is a dealer under the provisions of the Haryana Value Added Tax Act, 2003 (for short, “the Act”). It is manufacturer of ‘guar gum’, for which it uses raw material ‘guar’. In the process of manufacture, ‘guar churi’ is a by-product. The product ‘guar gum’ is exported by the dealer and the same does not attract tax under the Act. Tax paid at the time of purchase of raw material is refundable if sale does not take place in the State. The petitioner claimed refund on the tax paid at the time purchase of the raw material on the ground that the said material was not CWP No.11520 of 2006 sold in the State. The said claim was rejected, but on appeal, plea of the petitioner was upheld by the appellate authority. Inspite of order of the appellate authority dated 18.6.2004 being in favour of the petitioner, in proceedings for obtaining refund, it was held by the revisional authority vide order date 18.10.2007 that the petitioner will not be entitled to refund. This view has been upheld by the Tribunal. The finding recorded by the Tribunal is as under:- “The learned counsel for the appellant submitted that this case is covered by entry at Sr.No.5 Clause IV which reads “goods other than goods mentioned at serial No.1 and 2 of schedule E which used in the manufacture of packing of taxable goods which are exported out of state or disposed of otherwise than by sale.” Input tax credit shall be nil. “Manufacture” was not defined in the Haryana General Sales Tax Act, 1973 (hereinafter to be referred to as the 1973 Act). In the 1973 Act, no methodology was given as regards computation of purchase tax if to be rebated or set off or refunded or adjusted except in rule 24 B, which was done away with and replaced by formula devised under Section 15 A with effect from 19.10.2000 as regards the method as to how purchase tax is to be rebated, or set off, refunded or adjusted. Insertion of the definition of “Manufacture” in Section 2 (X), insertion of Section 2 (W) defining input tax insertion of Section 20 relating to refund to be read with rule 41, schedule E, Section 8 first proviso relating to the determination of input tax credit in the VAT Act was with a view to dispel the impression that the entire input tax credit 2 CWP No.11520 of 2006 will be given to a VAT dealer at the time of computation of input tax credit if these are the facts, instead no input tax credit will be given if part of the goods and gone into the manufacturing of tax free goods such as by product or waste product. It seems that while introducing these provisions in the VAT Act, legislature wanted to set at rest the view taken earlier as to how purchase tax on the purchase of raw material is to be adjusted/refunded, when raw material produces two commodities one taxable and the other non taxable. These provisions aim at allowing pro rata refund. Decision rendered in 85 STC 220 cannot help this VAT because of the new scheme devised in the VAT Act in the matter of computation of input tax credit, so far as his case is concerned.” 3. We have heard learned counsel for the parties. 4. Learned counsel for the petitioner submits that irrespective of merits of the case, the refund has to follow order of the appellate authority and in proceedings for determining refund, only question was of quantification of refund. Reliance has been placed on judgment of this Court dated 7.5.2009 in C.W.P. No.19941 of 2005 M/s Raghbar Dass Hukam Chand v. State of Haryana and others, taking view to this effect. Relevant observations are:- “........Therefore, we are of the view that on principle as well as on precedent, it stands established that an officer exercising the power of determining the amount of refund cannot exercise the power of review 3 CWP No.11520 of 2006 or appeal or revision. Such an officer has to respect the order of assessment and then is required to proceed to determine the amount of refund. The provisions of Section 43 read with Rule 36 postulate the limits of their power as already noticed and, therefore, the orders passed by the DETC are liable to be set aside.” 5. The matter, thus, being covered in favour of the petitioner by above observations, this writ petition has to be allowed. 6. Accordingly, we allow this petition and set aside the impugned order. It is made clear that this will not affect the merits of liability of the petitioner in pending appeal. (ADARSH KUMAR GOEL) JUDGE August 03, 2010 ( AJAY KUMAR MITTAL ) ashwani JUDGE 4