Mittal Metals and Another vs State of U.P. and Another

Rajes Kumar, J.—By means of the present writ petition, the petitioners are seeking the following reliefs :

(i) that a suitable writ, order or direction in the nature of certiorari be issued quashing the imposition of tax at the higher rate of four per cent by the order dated February 26, 2001 for the assessment year 1998-99 so far as petitioner No. 2 is concerned.

(ii) that a suitable writ, order or direction in the nature of mandamus be issued directing the refund of the excess tax realised from petitioner No. 2 in respect of the iron scrap which is iron and steel as defined u/s 14(iv)(i) of the Central Sales Tax Act which were imported from outside the State of U. P. and sold within the State of U. P.

(iii) that a suitable writ, order or direction in the nature of certiorari be issued declaring entry No. 6(b) and 6(a) of the Notification No. 1626 dated May 21, 1994 as invalid and void.

(iv) that a suitable writ, order or direction in the nature of mandamus or prohibition be issued restraining/prohibiting the respondents from realising any tax to the imported iron and steel as defined u/s 14 of the Central Sales Tax Act and which are sold within the State of U. P. as local sales within the State of U. P. u/s 3A at a higher rate of tax prior to the issuance of the notification dated May 22, 1998.

(v) that any other suitable writ, order or direction which this honourable court may deem fit and proper in the circumstances of the case be also issued in favour of the petitioner.

(vi) that costs of the petition be awarded to the petitioners as against the respondents.

Brief facts giving rise to the present writ petition are that the petitioners are registered dealers both under the U. P. Trade Tax Act as well as under the Central Sales Tax Act. Petitioner No. 1 was carrying on the business of purchase and sale of iron scrap and petitioner No. 2 was also carrying on the business of manufacture and sale of iron and steel, which are manufactured from the raw material on which the tax has been paid within the State of U. P. as well as iron and steel purchased from outside the State of U. P.

As per notification No. TT-2-1626/XI-7(159)/91-U. P. Act- 15/48-order-94, dated May 21, 1994 issued u/s 3A of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, "the Act"), under entry 6(a) "iron and steel" as defined in section 14 of the Central Sales Tax Act, 1956 (hereinafter referred to as, "the Central Act") if manufactured from the raw material on which tax has been paid within the State under the U.P. Trade Tax Act, 1948 was liable to tax at the point of manufacturer or importer at two per cent and under entry 6(b) "iron and steel" as defined in section 14 of the Central Sales Tax Act, 1956 other than that mentioned in sub-item (a) was liable to tax at the point of manufacturer or importer at four per cent.

By means of the present writ petition, the petitioners are challenging the validity of entry 6(b) of the above notification on the ground that it is violative of articles 301 and 304 of the Constitution of India and the assessment order passed for the assessment year 1998-99, in which four per cent tax has been levied on the sale of iron and steel imported from outside the State of U. P. and sold within the State of U. P.

The contention of the petitioners is that such iron and steel are also be taxed at two per cent, which is applicable to the items mentioned in entry 6(a) of Notification No. 1626, dated May 21, 1994.

Heard Sri Bharat Ji Agrawal, learned Senior Advocate, assisted by Sri Piyush Agrawal, learned counsel for the petitioners and Sri S. P. Kesarwani, learned Additional Chief Standing Counsel.

The learned counsel for the petitioners submitted that the issue involved is almost covered by the decision of the apex court in the case of Anand Commercial Agencies v. Commercial Tax Officer, Hyderabad reported in (1997) 107 STC 586; (1998) UPTC 227, wherein the similar entry 24 of the First Schedule to the Andhra Pradesh General Sales Tax Act, 1957 in relation to the groundnut oil or refined oil, has been considered by the apex court, wherein the apex court held that clause (a) of entry 24 is violative of the provisions of articles 301 to 304 of the Constitution of India in so far as it imposes a higher rate of tax on groundnut oil or refined oil which has been obtained from groundnuts that have not been taxed under the Andhra Pradesh Act. It has been declared that the groundnut oil imported by the assessee from Karnataka for sale in Andhra Pradesh cannot be taxed at a higher rate than the rate prescribed in clause (b) of entry 24 of the First Schedule to the Andhra Pradesh Act. He also relied upon the decision of the apex court in the case of State of Uttar Pradesh and another Vs. M/s. Laxmi Paper Mart and others, .

Sri S. P. Kesarwani, learned Additional Chief Standing Counsel, submitted that the intent of the Legislature was to levy tax at four per cent on all iron and steel, in case, where the iron and steel was manufactured out of the raw material on which the tax was paid, it was made taxable at two per cent because the raw material has already been subjected to tax at two per cent in view of Notification No. 1626 dated May 21, 1994 issued in exercise of power u/s 4B of the Act while in the case of other iron and steel covered under entry 6(b), such goods were not subjected to tax within the State of U. P. Therefore, entry 6(b) of Notification No. 1626, dated May 21, 1994 cannot be said to be discriminator)'' and violative of article 14 of the Constitution of India and cannot be said to be violative of articles 301 to 304 of the Constitution of India. He placed reliance upon the decision of the apex court in the case of Video Electronics Pvt. Ltd. v. State of Punjab reported in (1990) 77 STC 82; (1990) UPTC 571 (pages 99 and 106 of 77 STC), (paras 21 and 33). He submitted that prior to Ma;'' 21, 1994 all iron and steel were liable to tax at four per cent under the notification issued u/s 3A of the Act and prior to May 21, 1994 under the notification issued u/s 4B of the Act raw material used in the manufacturing of iron and steel was completely exempted to tax. He submitted that all the raw materials were subjected to tax prior to May 21, 1994 at four per cent and by the impugned notification it has been subjected to tax at four per cent, therefore, the grievance appears to be against the lower rate of tax levied on the sale of iron and steel manufactured out of raw material on which tax had already been paid. He submitted that the main grievance of the petitioners appears to be refund of the amount deposited in excess of two per cent, which cannot be refunded because the petitioners have charged four per cent tax from its customers. As an alternative submission, he submitted that in any case, the entry 6(b) be declared invalid prospectively and not retrospectively. In support of the contention, he placed reliance on the decision of the apex court in the case of Devi Dass Gopal Krishen Ltd. v. State of Jammu and Kashmir reported in [2001] 121 STC 388; [2000] 3 JT Supp. 306.

We have heard learned counsel for the parties and gone through the records.

Iron and steel is one of the declared commodity u/s 14 of the Central Act. It is defined in clause (iv) of section 14 of the Central Act which includes the pig iron and cast iron including ingot moulds, bottom plates, iron scrap, caste iron scrap, runner scrap and iron skull scrap, etc. u/s 15 of the Central Act, the tax on the declared goods cannot be levied more than four per cent. Prior to May 21, 1994 iron and steel was liable to tax under Notification No. ST-II-5782/X-10(1)-80-U. P. Act XV-48-Order-81, dated September 7, 1981, which reads as follows :

In exercise of the powers under clause (a) of sub-section (1) of section 3A of the U. P. Sales Tax Act, 1948 (U.P. Act No. XV of 1948), read with section 21 of the U. P. General Clauses Act, 1904 (U. P. Act No. 1 of 1904), and in supersession of all previous notifications issued u/s 3AA of the said Act as it stood before its amendment by the Uttar Pradesh Sales Tax (Amendment and Validation) Ordinance, 1981 (U. P. Ordinance No. 12 of 1981), the Governor is pleased to declare that, with effect from September 7, 1981, the turnover in respect of the goods mentioned in column 2 of the list below shall be liable to tax at the point of sale specified in column 3 of the said list at the rate specified against each in column 4 thereof :

LIST

''M'' stands for sale by manufacturer in Uttar Pradesh

''I'' stands for sale by the importer in Uttar Pradesh

Sl. No.

Description of Goods

Point of tax

Rate of tax

1

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

Sale to consumer

4 per cent.

2

Cotton as defined in section 14 of the Central Sales Tax Act, 1956.

Sale to consumer

4 per cent.

3

Cotton yarn but not including cotton yarn waste.

M or 1

2 per cent.

4

Crude oil as defined in section 14 of the Central Sales Tax Act, 1956.

Sale to consumer

4 per cent.

5

Hides and skins, whether in a raw or dressed state.

Sale to consumer

4 per cent.

6

lion ad steel as defined in section 14 of the Central Sales Tax Act, 1956.

M or 1

4 per cent.

The entry 6(b) of Notification No. 1626, dated May 21, 1994 issued u/s 3A of the Act, which is impugned reads as follows :

S. No.

Description of goods

Point of tax

Rate of tax

6

(a) Iron and steel as defined in section 14 of the Central Sales Tax Act, 1956 if manufactured from the raw material on which tax has been paid within the State under the Uttar Pradesh Trade Tax Act, 1948.

M or 1

2 per cent.

(b) Iron and steel as defined in section 14 of the Central Sales Tax Act, 1956 other than that mentioned in sub-item (a) above.

M or 1

4 per cent.

The aforesaid notification has been amended by notification dated June 1, 1998, by which all iron and steel have been subjected to tax at four per cent. Therefore, the dispute relates to the period April 1, 1998 to May 31, 1998.

We need not to stay much in the matter and examine the rival submissions in detail, as it appears that the controversy involved in the present writ petition is covered by the decision of the apex court in the case of Anand Commercial Agencies v. Commercial Tax Officer, Hyderabad [1997] 107 STC 586; [1998] UPTC 227. In the aforesaid case, the appellant was carrying on the business of groundnut oil. Entry 24 of the First Schedule to the Andhra Pradesh General Sales Tax Act reads as follows :

"S. No.

Description of Goods

Point of levy

Rate of tax

(1)

(2)

(3)

(4)

24

Groundnut oil or refined oil: (1024)

(a) Groundnut oil or refined oil not covered by sub-item (b) below.

(b) Groundnut oil or refined oil obtained from groundnut that has met tax under the Act.

At the point of first sale in the State At the point of first sale in the State

6� paise in the rupee

2� paise in the rupee."

The case of the assessee was that levy of tax on the oil imported from Karnataka into Andhra Pradesh at a rate higher than the rate at which the oil manufactured in the Andhra Pradesh is taxed is discriminatory and violative of the assessee''s right of freedom of trade and commerce throughout India and as such violative of articles 301 and 304 of the Constitution of India. Under the aforesaid entry, the oil imported from Karnataka into Andhra Pradesh was liable to tax at the point of manufacturer or importer at the rate six and half paisa in the rupee. The oil manufactured in Andhra Pradesh was liable to tax at the point of first sale at the rate two and half paisa in the rupee. The apex court examined the constitutional provisions and various decisions including the decision of the apex court in the case of Video Electronics Pvt. Ltd. v. State of Punjab [1990] 77 STC 82; [1990] UPTC 571 and held as follows (at page 594 of 107 STC) :

We are of the view that the contention of the appellant is not without substance. What has been done by entry 24 of the First Schedule is to impose a lower rate of duty on groundnut oil or refined oil obtained from groundnuts that have been taxed under the A. P. Act. The contention that groundnut oil manufactured in Andhra Pradesh has not generally been charged at a lower rate of tax has not been substantiated by any fact or figure. It is not the case of the State that only a small portion of the oil manufactured by local manufacturers is produced from groundnut purchased in Andhra Pradesh. Unless that can be established, it cannot be held that groundnut oil or refined oil within the State is generally charged at the same rate as the imported oil. The only justification that has been made out for this discrimination is that groundnut out of which the oil is manufactured locally has already born tax. The appellant''s contention, which has not been denied by the State, is that the oil manufactured in Karnataka which was imported into Andhra Pradesh was manufactured out of groundnuts which had also borne tax under the Karnataka Sales Tax Act. Therefore, it cannot be said that oil manufacturers in Andhra Pradesh are in a disadvantageous position and had to be compensated by a lower rate of tax. The State of Andhra Pradesh has not been able to make out any special case for imposing a lower rate of tax on groundnut oil produced within the State.

Clause (a) of the First Schedule to the Andhra Pradesh General Sales Tax Act is declared violative of the provisions of articles 301 to 304 in so far as it imposes a higher rate of tax on groundnut oil or refined oil which has been obtained from groundnuts that have not been taxed under the Andhra Pradesh Act. It is declared that the groundnut oil imported by the appellant from Karnataka for sale in Andhra Pradesh cannot be taxed at a rate higher than the rate prescribed in clause (b) of entry 24 of the First Schedule to the Andhra Pradesh Act.

Entry No. 6 of the Notification No. 1626, dated May 21, 1994 which is impugned in the present writ petition is similar to entry 24 of the First Schedule to the Andhra Pradesh General Sales Tax Act.

For the reasons given by the Apex Court, we are of the view that entry 6(b) of Notification No. 1626, dated May 21, 1994 referred hereinabove is declared violative of articles 301 to 304 in so far it imposes higher rate of tax on the iron and steel than the iron and steel manufactured out of raw material purchased, on which tax has been paid within the State of U. P., it is declared that iron and steel imported by the petitioner from outside the State of U. P. and sold inside the State of U. P. cannot be taxed at the rate higher than the rate prescribed in clause (a) of entry 6 of the above notification. The assessment order for the assessment year 1998-99 is liable to be set aside to this extent.

So far as the claim of refund of the excess amount deposited is concerned, the assessing authority may examine the claim of the refund in accordance to the provisions of sections 29 and 29A of the Act.

In the result, the writ petition is allowed as stated above. There shall be no order as to costs.