Bihar Hard Coke Manufacturing Company vs The State of Bihar and Others

B.P. Singh and S.B. Sinha, JJ.—These two applications involving common questions of law and fact were heard together and are being disposed of by this common judgment.

The Petitioner in C.W. J.C. No. 2574/89 (R) has, inter alia, prayed for quashing of the order dated 20.6.1989 as contained in Annexure-5 to the writ application and the writ application and the order dated 5.6.1989 as contained in Annexure 5/A to the writ application, whereby the Respondent No. 3 imposed a penalty of Rs. 3,81,584,64 paisa, and the Petitioner of C.W. J.C. No. 1574 of 1989 (R) has inter alia, prayed for issuance of a writ of certiorari for quashing the order dated 7.7.1989 passed by the Respondent No. 2, whereby and where under he imposed a sum of Rs. 3,85,788.51 paisa by way of penalty.

Mr. B.P. Rajgharia, the learned Counsel appearing on behalf of the Petitioners in both the aforementioned writ applications, mainly submitted that coal and coke being the same commodity in terms of Sections 14 and 15 of the Central Sales Tax Act, and in view of the notification issued u/s 11(2) of the Bihar Finance Act, 1981, the Petitioners having paid tax on purchase of coal were not liable to pay any further tax on hard coke manufactured by them.

The learned Counsel, in this connection, has referred to a Division Bench decision of this Court in Anil Hard Coke Industries and Others Vs. The State of Bihar and Others, . The learned Counsel further submitted that in any event, in the instant case, the question of concealment of income does not arise as the Petitioners have shown amount of sale in their return and the question as to whether sales tax would be chargeable in terms of Bihar Finance Act or Central Sales Tax Act does not amount to any concealment so as to attract the provisions of Section 20(1) of the Bihar Finance Act.

The learned Counsel further submitted that in the instant case, there was no mens rea on the part of the Petitioners, and as such no penalty could have been imposed upon them.

The learned Counsel, in this connection, has placed heavy reliance on Hindustan Steel Ltd. Vs. State of Orissa, ; Cement Marketing Co. of India Ltd. Vs. Assistant Commissioner of Sales Tax, Indore and Others, and also in 1985 B.R.L.J. page 7.

Mr. S.B. Gadodia, the learned Government Advocate appearing on behalf of the Respondents on the other hand submitted that in the instant case, the transactions involved are not intra-State transactions but inter-State transactions.

The learned Counsel, in this connection, has drawn our attention to the impugned orders and submitted that from a perusal thereof, it would appear that the Petitioners despite notices did not produce the books of account in order to show that the transactions involved inter-State sale or intra-State sale, and, in that view of the matter, the Respondent No. 3 had no other option but to proceed to hold on the basis of the road permits issued to the Assessee that the transactions involved are inter-State sales and not intra-State sales.

The learned Counsel submitted that in terms of the provisions contained in the Central Sales Tax Act, an Assessee is only entitled to reimbursement in respect of tax paid by him while making purchase of coal from the amount of tax recovered by the Petitioners from their purchasers.

The learned Counsel, in this connection has drawn our attention to the fact that in terms of the provisions of the Central Sales Tax Act, the amount of tax leviable to an unregistered dealer would be 8 percent whereas in case of production of declaration in the prescribed form i.e. in form C, the tax payable would be 4%.

The learned Counsel further submitted that in any event, the question as to whether penalty should have been imposed or not being essentially a question of fact, the orders ought to have been challenged by the Petitioners in appeal, and there is no reason to interfere with the orders of penalty passed by a competent authority in exercise of its statutory power.

The learned Counsel further submitted that in Anil Hard Coke Industry''s case (supra), this Court has not decided as to what would be the position in relation to an inter-State sale. He, therefore, drew our attention to the provisions contained in Sections 3, 6, 6A, 8, 9, 14 and 15 of the Central Sales Tax Act as also Rule 12 of the Central Sales Tax Rules.

The learned Counsel further submitted that in the instant case the penalty imposed is justified in view of the fact that the Petitioners did not submit the books of account before the Respondent No. 3.

In view of the Division Bench decision of this Court in Anil Hard Coke Industries and Ors. v. The State of Bihar and Ors., there cannot be any doubt whatsoever that in terms of the notification dated 26th September, 1977 issued by the State of Bihar under Sections 11 and 12(2) of the Bihar Finance Act, 1981 that coal includes hard coke. There is also no doubt whatsoever that once a tax on purchase of coal is paid no further sales tax is payable on coke in respect of an intra-State sale.

However, in Anil Hard Coke Industries case (supra), the Division Bench has not laid down any law as to what would happen in respect of an inter-State sale.

Before proceeding further, the reliever provisions of the Central Sales Tax Act, namely Sections 3, 6, 6A, 8, 9, 14, and 15 may b considered.

Section 3 of the Central Sales Ta provides as to when a sale or purchase of good can be said to take place in the course of inter State trade or commerce and in terms of aforementioned provision a sale or purchase goods shall be deemed to take place in the course of inter-State trade or commerce.�

A. Occasions, the movement of good from one State to another or,

B. Is effected by a transfer of document title to the goods during their movement from one State to another.

Section 6 provides for the liabilities tax on inter-State sales.

In terms of Section 6(1-A) a statutt mandate has been created to the effect the dealer shall be liable to pay any tax under said Act on a sale of any goods effected by in the course of inter-State trade or comer notwithstanding that no tax would have been leviable under the sales tax law of the appropriate State if that sale had taken place in that State.

Section 6A provides for burden of proc case of transfer of goods claimed other than by way of sale. Section 8 prescribes the rate if tax of sale in the inter-State trade or commerce.

It is accepted by all concerned that inter-State sales of hard coke which be taxed at 4 per cent and inter-State sales of hard coke not supported by �C� forms would be taxed at 8 per cent.

Section 9 provides for levy and collection of tax and penalties.

By reason of Section 14 some goods are declared to be of special importance in inter-State trade or commerce. Clause 1A of Section 14 reads as follows:

Coal, including coke in all its forms but excluding charcoal:

Provided that during the period commencing on 23rd day of Ferbruary, 1967 and ending with the date of commencement of Section 11 of the Central Sales Tax (Amendment) Act, 1973 (61 of 1972) this clause shall have effect subject to the modification that the words ''but excluding charcoal'' shall be omitted.

Section 15 reads as follows:

Restrictions and conditions in regard to sale or purchase of declared goods within a State.-Every sales tax law of a state shall in so far as it imposes or authorizes the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions namely:

(a) the tax payable under that law in respect of any sale or purchase of such goods inside the state shall not exceed four percent of the sale or purchase price there of and such tax shall not be levied at more than one stage:

(b) where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter-State trade or commerce, (and tax has been paid under this Act in respect of the sale of such goods in the course of inter-State trade or commerce, the tax levied under such law shall be reimbursed to the person making such sale in the course of inter-State trade or commerce in such manner and subject to such conditions as may be provided in any law in force in that State:

(c) Where a tax has been levied under that law in respect of the sale or purchase inside the State of any paddy referred to in Sub-clause (i) of Clause (1) of Section 14, the tax leviable on rice procured out of such paddy shall be reduced by the amount of tax levied on such paddy;

(d) each of the pulses referred to in Cluase (vi) of Section 14, whether whole or separared, and whether with or without husk, shall be treated as single commodity for the purpose of levy of tax under that law.

From a perusal of the Section 15(b) of the said Act, it appears that the said provisions for reimbursement to the person making a sale in the course of inter-State trade or commerce, to the extent of the tax paid by him.

As noticed hereinbefore, there can not be any doubt that in view of the decision in Anil Hard Coke Industry Case, Hard Coke must be deemed to be included within the definition of coal.

However, from a perusal of the aforementioned decision, it dies mot appear that the Bench deciding the aforementioned case tool into consideration the provision of Central Sales Tax Act, 1956 as referred to hereinbefore and the implications thereof.

It was held that once sales tax was collected on coal, mo further tax can be collected on the sale of hard coke manufactured from such coal. In such a situation, the provisions of the Central Sales Tax appear to be absolutely clear and unambiguous by reason where of such a manufacturer and seller of hard coke would be reimbursed to the extent it had paid tax on purchase of coal from which hard coke is manufactured.

It is true that in a given case, if the declaration in form �C� is produced, depending upon the value of the goods, no tax may ultimately be held to be payable, and as such the entire amount of tax which has been paid by the dealer at the time of the purchase of coal may have to be reimbursed to him while he is assessed under the Central Sales Tax Act. The position however would be different in a case where no declaration in form ''C is produced by the dealer. In such a case the rate of tax on the good sold would be 8 percent, and in that view of the matter, the Assessee will only be reimbursed to the extent of 4 per cent of tax which he has paid at the time of purchase of the coal on the value thereof.

It is well known that a decision is an authority for what it decides and not what can logically be deduced from it.

Reference in this connection may be made to Quim Versus Letham 1909 1 (All ELR 1).

In Anil Hard Coke Industries case (supra), this Court declared that hard coke is also coal. There cannot be any dispute so far at that proposition is concerned, but the said decision is an authority only for that purpose and cannot be stated as an authority with regard to the quantum of tax payable under the Central Sales Tax Act, as the rate of tax would vary in terms of Section 8 of Central Sales Tax Act, depending upon the fact as to whether in relation to a particular transaction declaration in form ''C had been issued or not.

In this view of the matter, there can not be any doubt that the dealers are not absolved from filing a true and correct return both under Bihar Finance Act, 1951 and also under the Central Sales Tax Act, 1956, so as to enable the assessing authority to come to a conclusion as to what extent the dealer is liable to be reimbursed in case of an inter-State transaction or sale.

In the instant case, despite notices, the dealers have not produced their books of accounts. It may be that if the books of accounts had been produced, it would have been possible for the Assessee to show that the transactions in question, despite issuance of road permits in the prescribed form, do not involve inter-State sales but only intra-State sales. It is also true, as has been submitted by Sri Rajgharia, that the assessing authority need not impose penalty only because it is lawful to do so.

However, it may be mentioned that recently, the Supreme Court in Gujarat Travancore Agency, Cochin Vs. Commissioner of Income Tax, Kerala, Ernakulam, , held that mens rea is not always necessary to be proved before an order of penalty can be passed.

However, in view of the order proposed to be passed by us, it is not necessary to deal with the said question in details.

An Assessee has admittedly an alternative remedy to prefer an appeal, before the prescribed authority. The liability to pay sales tax is creation of statute. Sales Tax Laws are self-contained codes.

In Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa and Others, , it has been held as follows:

Under the scheme of the Act, there is a hierarchy of authorities before which the Petitioners can get adequate redress against the wrongful acts complained of. The Petitioners have the right to prefer an appeal before the prescribed authority under Sub-section (3) of Section 23 of the Act. If the Petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under Sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court u/s 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This Rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 CBNS 336 in the following passage:

There are three classes of cases in which a liability may be established founded upon statute.... But there is a third class, viz, where a liability riot existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it...the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.

The rule laid down in this passage was approved by the House of the Lords in Neville v. London Express Newspaper Ltd. 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant & Co. 1935 ACC 532 and AIR 1940 105 (Privy Council) , it bas also been held to be equally applicable to enforcement of rights, and has been followed by this Court. The High Court was, therefore, justified in dismissing the writ petitions in limine.

Recently the Supreme Court again in Andhra Pradesh State Electricity Board Vs. Union of India (UOI) and Another, at page 1022 held that the right to prefer an appeal may be hedged by conditions.

Taking thus into consideration the facts and circumstances of the case, particularly, in view of the fact that the Petitioners did not produce their books of accounts before the assessing authority, we are not inclined to entertain salute writ applications, and observed that the Petitioners, if they are so advised may take recourse to the alternative remedy provided for under the Act itself.

In this view of the matter, in our opinion, it is not necessary to discuss other points raised at the Bar.

These applications are dismissed at this stage.

However, in the facts and circumstances of these cases, there will be no order as to costs.