PNP 1 WP10340-24.6.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10340 OF 2010 M/s.Vamsi Labs Limited ..Petitioner. versus The Maharashtra Sales Tax Tribunal and others ..Respondents. ..... Mr. C.B. Thakkar with Mr. M.M. Vaidya for the Petitioner. Mr. V.A. Sonpal, A Panel counsel for Respondents 2 and 3. ...... CORAM : DR.D.Y.CHANDRACHUD & ANOOP V. MOHTA, JJ. 24 June 2011. P.C. : 1. Rule, by consent returnable forthwith. With the consent of Counsel and at their request the Petition is taken up for hearing and final disposal. 2. The Petitioner established a unit in a backward area of the State of Maharashtra. On 5 August 1992 the Western Maharashtra Development Corporation Limited which was the implementing agency issued an eligibility certificate under a Package Scheme of Incentives of 1988. The Deputy Commissioner of Sales Tax issued an entitlement certificate on 8 September 1992 which was valid from 15 August 1992 to 14 August 2001. Thereafter the Petitioner undertook an expansion in its production capacity. A new eligibility certificate was granted on 23 March 1995 while the Deputy Commissioner of PNP 2 WP10340-24.6.sxw Sales Tax granted an entitlement certificate on 27 March 1996. The entitlement certificate was effective from 1 April 1995. The Petitioner claims to have entered into correspondence with effect from 21 March 1997 for an alteration in the effective date of the entitlement certificate dated 27 March 1996, from 1 April 1995 to 1 April 1993. The representation of the Petitioner was initially rejected on 23 February 1998 by the Assistant Commissioner. The Deputy Commissioner rejected a similar request made by the petitioner on 31 May 2001. Against the order rejecting the request passed by the Deputy Commissioner the Petitioner filed an appeal before the Maharashtra Sales Tax Tribunal. In appeal, the Petitioner took out an application for condonation of delay (Misc. Application 26 of 2003). According to the Petitioner written submissions were filed before the Tribunal contending that there was in fact no delay and a miscellaneous application may not be necessary. On 12 February 2007 an application was filed by the Petitioner before the Tribunal that the Miscellaneous Application for condonation of delay be treated as withdrawn and the appeal be considered to be in time. 3. By an order dated 30 August 2008 the Tribunal dismissed the application for condonation. The Tribunal also considered the merits of the Petitioner s case for a change in the effective date of the ’ entitlement certificate and rejected that request as well. Thereupon the Petitioner submitted a rectification application which was also dismissed on 21 April 2009. These proceedings have been instituted thereafter. 4. The Petitioner has challenged (i) The order of the Tribunal on – PNP 3 WP10340-24.6.sxw the rectification application dated 21 April 2009, and (ii) The order of the Tribunal dated 30 August 2008 on the Miscellaneous Application. In the alternative, the Petitioner has prayed that permission should be granted to withdraw the Miscellaneous Application for condonation of delay. By an amendment to the Petition the Petitioner has sought leave to maintain the appeal before the Tribunal against the rejection order dated 31 May 2001. 5. The Petitioner initially filed an appeal, Appeal 118 of 2001 against the order of the Deputy Commissioner of Sales Tax dated 31 May 2001. From the acknowledgment which is annexed at Exhibit D to these proceedings it would appear that the appeal was filed on 24 July 2001. The appeal which was filed on 24 July 2001 against the order of the Deputy Commissioner of Sales Tax dated 31 May 2001 was within limitation, that not being a position in dispute. However, in a Miscellaneous Application ( M.A. 26 of 2003) the Petitioner requested the Tribunal to consider the appeal as one against the original entitlement certificate dated 27 March 1996 and on that basis sought the condonation of delay of over five years in filing the appeal. The Tribunal by its judgment dated 30 August 2008 allowed the application of the Petitioner to consider the appeal which was filed against the rejection letter of the Deputy Commissioner of Sales Tax dated 31 May 2001 into an appeal against the entitlement certificate dated 27 March 1996. The application for condonation of delay was dismissed. Consequently, the appeal was rejected as barred by limitation. However, the Tribunal has also made observations on the merits of the claim of the Petitioner though on a closer reading of the order of the Tribunal it would appear that this is in relation PNP 4 WP10340-24.6.sxw to the merits of the claim for condonation. The Petitioner is before the Court in these proceedings under Article 226 of the Constitution. 6. Counsel appearing on behalf of the Petitioner submitted that the appeal was initially filed against the order of the Deputy Commissioner of Sales Tax on 31 May 2001. The Petitioner had requested the Tribunal in a Miscellaneous Application to permit the appeal to be converted into an appeal against the entitlement certificate of 27 March 1996 and on that basis an application for condonation of delay had been filed. However, on 12 March 2007 the Petitioner filed an application for withdrawal of the application filed for the conversion of the appeal, as noted earlier, and for condonation. The Tribunal took note of the fact that the application was, as a matter of fact, filed before it and formed part of the record of the case. In that view of the matter, it was urged, that the Tribunal ought to have allowed the Petitioner to withdraw Miscellaneous Application 26 of 2003 and to proceed on the basis that the appeal was preferred against the order of the Deputy Commissioner of Sales Tax dated 31 May 2001. No prejudice, it was urged, will be caused to the revenue by allowing the application since the Petitioner would either stand or fall by its case that it was aggrieved by the order of the Deputy Commissioner of Sales Tax dated 31 May 2001. 7. On the other hand, Counsel appearing on behalf of the Respondents submitted that the Tribunal had dismissed the application for condonation for good and valid reasons in its order dated 30 August 2008 and there was no reason for the Tribunal to PNP 5 WP10340-24.6.sxw exercise the power of rectification. Consequently, it was submitted that the rectification application was legitimately dismissed and no interference of the Court is accordingly warranted. 8. The record before the Court would indicate that the appeal which was originally filed by the Petitioner before the Tribunal was against the order of the Deputy Commissioner of Sales Tax dated 31 May 2001 refusing to accede to the request of the Petitioner for making the entitlement certificate effective from 1 April 1993 instead of 1 April 1995. The appeal was filed on 24 July 2001. On 15 January 2003 the Petitioner moved an application stating that the appeal may be considered to be one against the original certificate of entitlement dated 27 March 1996. On that basis, the Petitioner sought that the delay in filing the appeal should be condoned. On 12 February 2007 the Petitioner filed an application before the Tribunal recording that the case of the Petitioner was similar to a decision of the Tribunal in Ajay Windecor Products Pvt. Ltd. (Appeal 40 of 2005 decided on 6 June 2006) by which the Tribunal while entertaining an appeal against a rejection by the Deputy Commissioner of Sales Tax had granted relief in terms similar to that sought by the Petitioner. The Petitioner therefore prayed that the appeal may be considered to be within time and accordingly Miscellaneous Application 26 of 2003 may be permitted to be withdrawn. The Tribunal in its judgment dated 21 April 2009 observed that the application dated 12 February 2007 did not bear the signature of the President or its member before whom the application was claimed to have been submitted. Nor was there any mentioned in the Roznama about the filing of the application. The contention of the Petitioner that the application PNP 6 WP10340-24.6.sxw dated 12 February 2007 had been submitted during the sitting of the Tribunal at Solapur could therefore not be confirmed. The Tribunal observed that however, it proceeded on the basis that the application had been submitted to the office of the Tribunal and remained to be properly registered by the registry. As a matter of fact, the application together with a copy of the Tribunal s judgment in Ajay ’ Windecor Product was found in the record of the appeal / Miscellaneous Application. However, the Tribunal observed that Counsel appearing on behalf of the Petitioner had not brought to its notice the fact of the filing of the application when it heard the appeal and passed the judgment dated 30 August 2008. For this reason, the Tribunal dismissed the application for rectification. 9. On the record of the proceedings before this Court, Counsel appearing on behalf of the Petitioner has filed his personal affidavit dated 13 December 2010 stating that the learned advocate had appeared before the Tribunal at its sitting at Solapur on 13 February 2007 when he had filed an application dated 12 February 2007. The affidavit thereupon purports to set out what transpired at the hearing at Solapur and thereafter subsequently before the Tribunal. We do no propose to enter into the controversy on whether the existence of the application dated 12 February 2007 was pointed out to the Tribunal when it proceeded to dispose of the application for condonation of delay. The Tribunal has itself proceeded on the basis that such an application was pending. In that view of the matter, it would be appropriate and proper that the Petitioner who wishes to withdraw the application for condonation should be permitted to do so. PNP 7 WP10340-24.6.sxw 10. During the course of the present proceedings, learned counsel submitted that the Petitioner seeks to press the challenge only confined to the order of the Deputy Commissioner of Sales Tax dated 31 May 2001. In the circumstances, consequent upon the withdrawal of Miscellaneous Application 26 of 2003, the appeal of the Petitioner would only be confined to the correctness of the order passed by the Deputy Commissioner of Sales Tax on 31 May 2001. The Petitioner should, in our view, be permitted to urge that challenge before the Tribunal. Since the Petitioner seeks only to challenge the order of the Deputy Commissioner of Sales Tax dated 31 May 2001, the Tribunal upon remand of these proceedings will hear the Petitioner on the issue as confined to the aforesaid challenge. All the rights and contentions of the parties in that regard including such objections which the revenue may have on all counts including limitation are kept open. 11. We accordingly issue the following directions : (i) The impugned orders of the Maharashtra Sales Tax Tribunal dated 30 August 2008 and 21 April 2009 are set aside; (ii) Appeal 118 of 2001 is restored to the file of the Tribunal for fresh consideration; (iii)In terms of the statement made before the Court on behalf of the Petitioner, it is clarified that the appeal shall only relate to the challenge of the Petitioner to the order of the Deputy Commissioner of Sales Tax dated 31 May 2001; (iv)All the rights and contentions of the parties are kept open to be urged before and decided by the Tribunal. PNP 8 WP10340-24.6.sxw Rule is made absolute in the aforesaid terms. There shall be no order as to costs. (Dr. D.Y. Chandrachud, J.) (Anoop V. Mohta J.)