-1- CWP No.64/2001 MMPL Vs. State & Ors. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R D.B. Civil Writ Petition No.64 of 2001. Manglam Marbles Private Limited VERSUS State of Rajasthan & Others Date of Order :::: 02.11.2010. Hon'ble Mr. Justice Dalip Singh Hon'ble Mr. Justice S.S. Kothari Mr. Nitin Jain, Counsel for the Petitioner Mr. A. Kaushik, Counsel for the respondents. **** By the Court :- Heard learned counsel for the parties. It has been brought to the notice of the Court that the petitions seeking identical relief were filed before this Court and after the Constitution of the Rajasthan Taxation Tribunal the matters were sent before the said Tribunal for adjudication. Thereafter with the revocation of the Constitution of the Tribunal the matters were sent back to this Court. It is not in dispute that some of the matters with the identical relief in identical circumstances came up for consideration before this Court as in the case of Exclusive Marbles & Granites (Private) Ltd. Vs. The State of Rajasthan & Others (S.B. Civil Writ Petition No.114 of 2001) decided on 23rd September, 2010 wherein this Court after examining the entire -2- CWP No.64/2001 MMPL Vs. State & Ors. matter and relying upon the judgment in the case of M/s. Jai Marbles Private Limited Vs. The State of Rajasthan and Others (S.B. Civil Writ Petition No.2792/2001) decided on 09.03.2010 held as follows : (8) Before proceeding further, it is relevant to quote para 9 of the judgment of this Court in M/s.Jai Marbles Private Limited Vs. The State of Rajasthan and Others (supra). The same is as under :- “(9) In my view, prior to the issuance of the notification dated 06.12.1990, 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 06.12.1990. The retrospective operation of Clause (5) of the Exemption Notification dated 06.12.1990 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 06.12.1990 to make it effective from 06.12.1990. 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 Vs. 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 -3- CWP No.64/2001 MMPL Vs. State & Ors. 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. In view of the above directions given in identical petitions and the fact that the respondents have not challenged the aforesaid judgments either in Ms. Jai Marbles Private Limited (supra) or in the case of Exclusive Marbles & Granites (Private) Ltd. (supra) and the matter has been remanded to the Assistant Commissioner, Commercial Taxes, we would, accordingly, allow this petition, set aside the impugned order dated 02.11.1993, Annexure-7 and remand the matter back to the Assistant Commissioner, Commercial Taxes concerned with the directions to pass appropriate orders 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 06.12.1990. This petition stands allowed as above. There shall be no order as to costs. (S.S. Kothari) J. (Dalip Singh) J. Ashok/