1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.5529/2001 M/s.Rajasthan Cement Udyog, Makrana Versus The State of Rajasthan and others DATE OF ORDER --- September 24,2010 PRESENT HON’BLE MR.JUSTICE PREM SHANKER ASOPA Mr.Vivek Singhal, for the petitioner Mr.K. Verma, Dy. Govt. Counsel BY THE COURT (1) By this writ petition, the petitioner has sought a direction that the judgment of the Supreme Court dated 21.3.1997, in Shri Digvijay Cement Co. and others V. State of Rajasthan and others (Civil Appeal No.2145 of 1997) reported in (1997) 5 SCC 406 be declared to be prospective in its operation and further, sought setting aside the impugned asessment order and further direction that the respondents be restrained from acting in pursuance to or in furtherance of the assessment order made pursuant to the said judgment and creation of demand dated 23.7.2008 (Anx.3) after assessment (Anx.1 and 2) (2) The facts in brief, of the case are that the petitioner firm which is manufacturer of Cement, had applied for the benefit of Sales Tax Incentive Schemen, 1987 and was granted the said benefit of incentive under the Sales Tax Incentive Scheme for Industries, 1987. Intra State sale as well as Inter- State sale of cement manufactured by it were being made by the petitioner and required sales tax returns were also submitted by him. The petitioner was granted benefit of 75% of the total tax liability and the balance of 25% had to be deposited by the petitioner. (3) The petitioner further stated in the writ petition that during the assessent year 1995-96 (1.4.1995 to 31.3.1996), the petitioner has made sale 2 of Rs.1,70,02,236.00, out of which, the sale in the course of inter state trade or commerce was Rs.1,34,17,266/- and the intra state sale was of Rs.35,84,970/-. The assessment order for the assessment year 1995-96 was passed on 18.3.1998, u/s 29(6) of the Rajasthan Sales Tax Act and under Sec. 9(3) of the Central Sales Tax Act. The assessing authority levied additional tax on the inter State sales in absence of `C' Form. The tax @ 16% was levied on the inter State sale turnover of Rs.1,20,88,836/- for which C-form was not produced and after adjusting 75% incntive benefit demand for balance 25% along with interest was raised against the petitioner. The respondent No. 3 thereafter issued a notice of demand asking the petitioner to deposit the total demand failing which the assets of the petitioner will be attached or the amount would be recovered directly from the Bank. . (4) It is then stated in the writ petition that the State Government had issued a notification dated 7.3.1994 wherein the manufacturers/traders were allowed to sell cement in the course of inter State trade or commerce @ 4% without furnishing declaration in Form-C or certificate in Form D on condition. The petitioner had made the sales in accordance with the notification fulfilling all the conditions and the inter State sale of the petitioner was liable to be taxed @ 4% and not 16% as levied by the assessing authority. (5) Counsel for both the parties submit that the judgment dated 21.3.1997 passed by the Supreme Court in Shree Digvijay Cement Co.Ltd. V. State, (1997) 106 STC 11 (SC) = (1997) 5 SCC 406 (3 Judges' Bench) has been over ruled by the Constitution Bench of the Supreme Court in a later judgment dated 17.12.1999 reported in (2000) 11 SCC 395. (6) I have gone through record of the case and further considered submission of counsel for the parties. (7) This Court has disposed of identical writ petition M/s.Superfine Cement Private Limited V. State of Rajasthan and another (SBCWP No.5534/2001, decided on 13.5.2010) after setting aside the re-assessment 3 order dated 25.4.1998 and remanding the case to the Commercial Taxes Officer. Relevant paras 10 and 11 of the aforesaid judgment in M/s.Superfine Cement Private Limited V. State of Rajasthan and another are as under: “(10) On the basis of the aforesaid judgment dated 17.12.1999, of the Constitution Bench of the Supreme Court reported in (2000) 117 STC 395 (5 Judges' Bench), this Court in similar case of M/s.Madhu Cement Pvt.Ltd. V. State of Rajasthan (CWP No. 5503/2001, decided on 8.2.2008), while remanding the case to the Commercial Taxes Officer concerned to consider the judgment of the Constitution Bench of the Supreme Court reported in (2000) 117 STC 395 (5 Judges' Bench), disposed of the writ petition and ordered as under: “In view of above, the aforesaid impugned order dated 27.3.1998 passed by the C.T.O. Special Circle-5, Jaipur is set aside and the matter is remanded back to the CTO, Special Circle-5, Jaipur to decide the same after considering the judgment of Constitution Bench, reported in (2000) 117 STC 395. Accordingly, the writ petition is disposed of.” (11) Accordingly, I dispose of the present writ petition, set aside the re-assessment order dated 25.4.1998 and remand the case to the Commercial Taxes Officer, Nagaur Circle, Nagaur with the direction to decide the same after considering the judgment of Constitution Bench, reported in (2000) 117 STC 395.” (8) In view of the above, sales tax assessment orders dated 18.3.1998 (Annexure-1 and 2) are set aside and the matter is remanded back to the Commercial Taxes Officer, Circle–A, Makrana with the direction to decide the same after considering the judgment of the Constitution Bench of the Supreme Court reported in (2000) 117 STC 395. (9) The writ petition is disposed of. (Prem Shanker Asopa) J. गोpa ल