IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA STR No.2 of 2008 Decided on: September 08, 2011 Excise & Taxation Commissioner, Himachal Pradesh ..Applicant Versus M/S Superior Carbonate & Chemicals, Satiwala, District Sirmaur, H.P. ..Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr.Justice Dev Darshan Sud, Judge. Whether approved for reporting? For the Applicant : Mr.M.M.Khanna, Senior Advocate with Mr.Vayur Gautam, Advocate. For the Respondent : Mr.R.K.Sharma, Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General Justice R.B. Misra,J (Oral) . The present STR has been preferred by the Excise & Taxation Commissioner, Himachal Pradesh (the applicant herein) under Section 33 (1) of the H.P. General Sales Tax Act, 1968 (in short 'Sales Tax Act') along with an application for condonation of delay under Section 5 of the Limitation Act. The STR was admitted for the consideration of following substantial questions of law:- 1 1. Whether the lower rate of tax applicable under notification dated 23.7.1997 issued under the H.P. GST Act, 1968 to give concession to Small Scale Industries only, would automatically qualify to the lower rate applicable generally for the purpose of Section 8 (2-A) of the GST Act, 1956 and the explanation given thereunder? 2. Whether the dealer is not required to submit the mandatory 'C' forms to claim the concessional rate of tax? 3. Whether the provision of H.P. GST Act, 1968 to claim exemption from tax generally or subject to tax generally at a lower rate would apply automatically under the CST Act and the explanation given to Section 8(2-A) of CST Act, 1956 is to be taken as non-existent? 2. In order to adjudicate present STR, it is necessary to give the brief facts of the case. M/S Superior Carbonate & Chemicals, Satiwala, District Sirmaur (H.P.) (the respondent herein), manufacturer and supplier of calcium carbonate, was assessed @ 1% for the year 1998-99. The Assessing Authority reassessed on its turnover levying sales tax @ 10% on the sales made outside the State by the respondent for which 'C' Forms were not produced by the dealer. The appeal filed by the respondent against the order of the Assessing Authority before the Additional Excise & Taxation Commissioner-cum-First Appellate Authority (SZ), Shimla, was dismissed. Being aggrieved, the respondent filed an appeal before Financial Commissioner (Appeals) which was accepted vide order dated 26.05.2006. The State/Excise & Taxation Commissioner, however, has preferred the present STR against above impugned order dated 26.5.2006 in the month of July, 2008, 2 along with an application under Section 5 of the Limitation Act, for condonation of delay. 3. The substantial questions of law, as indicated above, could be entertained only when the application for condonation of such delay is allowed. If the application for condonation of delay is not entertained, in such a situation, no fruitful purpose would be served in adjudicating the substantial questions of law. 4. As has been submitted by Mr.M.M.Khanna, learned Senior Advocate, similar issues came for consideration before this Court where this Court (DB) has already taken a view in Excise and Taxation Commissioner, Shimla Versus Suraj Industries Ltd. (2010) 31 VST 367 (H.P.), as under:- “A plain reading of section 33(1) of the Himachal Pradesh General Sales Tax Act, 1968 reveals that within 60 days from passing of the order of the Financial Commissioner, the dealer or the Commissioner may, by application in writing, require the Financial Commissioner to refer to the High Court any question of law arising out of such order. It is very clear that the Act prescribes a period of only 60 days. The provisions of Section 30(4) specifically empower the appellate authority to condone delay in filing appeals but the Act has prescribed the period of limitation of 60 days under Section 33(1) and that is not subject-matter of condonation even for reasons to be recorded. The Himachal Pradesh General Sales Tax Act, 1968 being a specific Act or statute has prescribed limitation period under Section 33(1) for making 3 statement of case to the High Court by the Financial Commissioner. Such statutory prescribed period is a requirement under law which could override the provision of Section 5 of the Limitation Act, 1963 and condonation of delay could only be upto 60 days for making statement of case to the High Court. Where the application under Section 33 (1) for making a statement of case to the High Court was moved before the Tribunal with inordinate delay”: This Court (DB) has held in Suraj Industries Ltd. (supra) that STR (Sales Tax Reference) could not have been made beyond the period prescribed under Section 33(1) 'Sales Tax Act'. 5. Mr.M.M.Khanna, learned Senior Advocate has further submitted that to the best of his knowledge the above view has not been upset by the Hon'ble Supreme Court. Mr.Khanna, learned Senior Advocate has further submitted that in view of the decision of Hon'ble Supreme Court in Commissioner of Customs and Central Excise Versus Hongo India Private Limited and Another, (2009) 5 SCC 791, the above view taken by this Court (DB) in Suraj Industries Ltd. (supra) is also strengthened. In all fairness, learned Senior Additional Advocate General, appearing on behalf of the State (Excise & Taxation Commissioner, Himachal Pradesh), is not in a position to controvert the submissions advanced by Mr.Khanna, learned Senior Advocate, for and on behalf of the respondent. In these 4 facts and circumstances, the STR in question, being devoid of legal force, is accordingly dismissed without answering or adjudicating the substantial questions of law, indicated above. ( R.B. Misra ) Judge (Dev Darshan Sud) Judge September 08, 2011 (Purohit) 5