1 CWP No.114/2001 Sales Tax exemption notification IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.114/2001 Exclusive Marble & Granites (Private) Ltd. Versus The State of Rajasthan and others DATE OF ORDER --- September 23,2010 PRESENT HON’BLE MR.JUSTICE PREM SHANKER ASOPA Mr.Nitin Jain, for the petitioner Mr.R.B.Mathur, for the respondents BY THE COURT (1) Counsel for both the parties submit that initially the present writ petition was registered as DBCWP No.843/1993 and on 10.3.1993, it was admitted. Subsequently, on constitution of the Rajasthan Taxation Tribunal, the writ petition was transferred to the Rajasthan Taxation Tribunal. Thereafter, on abolition of the Rajasthan Taxation Tribunal, the case was again transferred to this Court and was again registered as SBCWP No.114/2001. (2) By this writ petition, the petitioner has prayed that Clause(5) of the exemption Notification dated 6.12.1990 (Schedule-A) be declared unconstitutional and violative of Article 14 of the Constitution of India and has further prayed for quashing the order dated 8.10.1992 (Anx.7) passed by the Assistant Commissioner, Commercial Taxes, Circle-E, Jaipur as also for a direction to refund the amount of Rs.69,880/- on account of exemption of sales tax. (3) Briefly stated the facts of the case are that the petitioner company, which is a mineral based industry, purchased two machineries on different dates during the period between 1.4.1990 and 6.12.1990 vide bills dated 31.8.1990 and 5.9.1990 when the matter of exemption of sales tax to the 2 CWP No.114/2001 Sales Tax exemption notification mineral based industry was going on and ultimately, the notification was issued on 6.12.1990 which was made effective from 1.4.1990. (4) The case of the petitioner is that since the benefit of exemption of tax has been granted from 1.4.1990, therefore, the seller who has deposited tax in the department and the petitioner being purchaser of the machineries was entitled to get the refund of the same and for this purpose, the petitioner filed an application u/s 23(B) of the Rajasthan Sales Tax Act, 1954 (in short `the Act of 1954'), which was rejected on 8.10.1992 (Anx.7). (5) Submission of counsel for the petitioner is that the retrospective operation of Clause (5) of the exemption notification dated 6.12.1990 from 1.4.1990 to neither charge nor demand any sales tax is contrary to the provisions of the Act of 1954 inasmuch as in case the sale of machines was effected without charging or demanding any sales tax, then, the dealer was required to face penal consequences as per the Act of 1954, therefore, Clause (5) of the exemption notification dated 6.12.1990 is to be made effective from 6.12.1990 and the same cannot be insisted upon the sale transactions which took place from 1.4.1990 to 6.12.1990. Counsel further submits that in this particular case, the sale transactions took place in between 1.4.1990 and 6.12.1990, therefore, the order dated 8.10.1992 refusing to refund the sales tax on the ground of deposit of the tax by the seller without claiming any exemption is arbitrary. In support of his aforesaid submissions, counsel for the petitioner has placed reliance on the judgment of this Court in M/s.Jai Marbles Private Limited V. The State of Rajasthan and others (SBCWP No.2792/2001, decided on 9.3.2010). (6) Counsel for the respondents submits that Clause (5) of the exemption Notification dated 6.12.1990 is legal and valid. (7) I have gone through record of the case and further considered rival submission of counsel for the parties. 3 CWP No.114/2001 Sales Tax exemption notification (8) Before proceeding further, it is relevant to quote para 9 of the judgment of this Court in M/s.Jai Marbles Private Limited V. The State of Rajasthan and others (supra). The same is as under: “(9) In my view, prior to the issuance of the notification dated 6.12.1990, the dealer was not expected not to charge or demand the sales tax on the sale of the goods and the compliance of the notification could only be insisted upon from 6.12.1990. The retrospective operation of Clause (5) of the Exemption Notification dated 6.12.1990 from 1.4.1990, to neither charge nor demand any tax, is contrary to the Act of 1954 and in case the sale of the machines was effected without charging or demanding any sales tax, then the dealer-seller was required to face penal consequences as per the Act of 1954. There is no infirmity in Clause (5) of the Exemption Notification dated 6.12.1990 to make it effective from 6.12.1990. Here, in the instant case, since the sale in question was completed on 9.6.1990 and 18.7.1990, when the complete amount along with tax was paid, in respect of the sale transaction dated 22.5.1990 and 30.6.1990, which is prior to 6.12.1990, therefore, the compliance of Clause (5) of the Exemption Notification dated 6.12.1990 could not be insisted upon. “ (9) In my view, the controversy involved in the present case is covered by the aforesaid judgment of this Court in M/s.Jai Marbles Private Limited V. The State of Rajasthan and others and the order dated 8.10.1992 (Anx.7) is liable to be quashed and set aside & the matter deserves to be remanded back. (10) Accordingly, the writ petition is partly allowed, the order dated 8.10.1992 (Anx.7) is quashed and set aside & the matter is remanded back to the Assistant Commissioner, Commercial Taxes, Circle-E, Jaipur with the further direction to pass appropriate order on the application of the petitioner for refund of the sales tax, without insisting upon the compliance of Clause (5) of the exemption notification dated 6.12.1990. No order as to costs. (Prem Shanker Asopa) J. गोpa ल