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Thursday, March 31, 2016

Whether or not tax should be paid on subsequent sales/purchase in the other State cannot be made subject matter of Rule 28A or the notification. Inter-State sale from the State of Haryana will be only once or not a repeated one. Therefore, there is no requirement of reference to subsequent sale. In this context, it is rightly submitted by the assessee that there is only one inter-State sale from the State of Haryana and the interpretation as suggested by the revenue would tantamount to making the exempted goods chargeable to tax, and the said goods would cease to enjoy the competitive edge given to the manufacturer in the State of Haryana. It will be counter-productive. In view of aforesaid analysis, we allow the appeals and set aside all the impugned orders and hold that assessees shall reap the benefit of the notification dated 04.09.1995 as interpreted by us. There shall be no order as to costs.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 1410 OF 2007


M/s. CASIO India Co. Pvt. Ltd.               ...  Appellant

                                Versus
State of Haryana                          ... Respondent

                                    With

                        Civil Appeal No. 1411 of 2007

                        Civil Appeal No. 5450 of 2013




                               J U D G M E N T



Dipak Misra, J.

      Regard being had to the similitude of the issue in  all  the  appeals,
they were heard together and disposed  of  by  a  common  judgment.  As  the
principal principle that constitutes the bedrock  of  the  decision  in  the
subject matter of assail in Civil Appeal No. 1410 of 2007, we  shall  advert
to the facts exposited therein and also dwell  upon  the  legal  issue  and,
needless to say, that would govern the fate of all the appeals.
2.    Presently to the layout of facts in Civil Appeal  No.  1410  of  2007.
The appellant-company is engaged in the business of manufacture and sale  of
Radio Pagers having its unit at plot No. 4, Phase-I, Udyog  Vihar,  Gurgaon,
Haryana. It is registered under the provisions of Haryana General Sales  Tax
Act, 1973 (for short, “the Act”), Haryana  General  Sales  Tax  Rules,  1975
(for short, “the Rules”) and the Central Sales Tax Act, 1956  (for  brevity,
“CST Act”)  In the  year 1995-96, the  assessee-company  after  purchase  of
Radio Pagers from M/s Bharati Telecom Limited was  also  engaged  in  inter-
state sale of the said Radio Pagers and in course of the  said  transaction,
did  not  charge  any  sales  tax  from  the  purchasers  on  the  basis  of
Notification  No.  SO  89/CA.74/56/S.8/95  dated  04.09.1995  issued   under
Section 8(5) of the CST Act read with  Rule  28A(4)(c)  of  the  Rules.  The
appellant filed its return and claimed exemption  placing  reliance  on  the
said notification, but the claim of exemption put forth by the assessee  was
not accepted by the assessing officer vide assessment  order  dated  October
05, 2001.  Being  aggrieved  by  the  order  of  assessment,  the  appellant
preferred an appeal  before  the  Joint  Excise  and  Taxation  Commissioner
(Appeal), Rohtak Circle, Rohtak who dismissed the appeal  vide  order  dated
May 2, 2002.
3.    Being dissatisfied with the order  passed  in  appeal,  the  appellant
knocked at the doors of the Sales Tax Tribunal, Chandigarh (for  short  ‘the
tribunal’) which dismissed the appeal by its order dated September 9,  2002.
 The dismissal of the appeal by the  tribunal  compelled  the  appellant  to
prefer Writ Petition No. 2346 of 2003, seeking a direction to  the  tribunal
to make a reference to the High Court. The High Court accepting  the  prayer
of the assessee called for a reference from the tribunal, and  the  tribunal
vide its order  dated  14.10.2003  in  S.T.M.  No.  82  of  2002-03  made  a
reference to the High Court for its opinion.
4.    After stating the case, the tribunal referred the following  questions
for the opinion of the High Court:-
“(i) Whether the notification dated 04.09.1995 issued under Section 8(5)  of
the CST Act is relatable to the exemption of goods  or  the  person  selling
it?
(ii) Whether in view of  the  notification  dated  04.09.1995  issued  under
Section 8(5) of the CST Act and Rule  28A  of  the  Rules,  the  inter-state
sales of the goods manufactured by an “exempted unit”,  even  by  any  other
dealer, is exempted from the levy of the Central Sales Act?”
5.    Before the High Court it  was  contended  by  the  assessee  that  the
notification dated 04.09.1995 issued by the State  Government  provides  for
grant of exemption on the  sale  of  goods  manufactured  in  the  State  of
Haryana by any dealer holding valid exemption certificate under Rule  28  of
the Rules and not to the dealer  and,  therefore,  the  goods  sold  by  the
assessee in the course of inter-state trade were not  liable  to  be  taxed.
In support of the said proposition, reliance  was  placed  on  International
Cotton Corporation (P)  Ltd.  v.  Commercial  Tax  Officer,  Hubli[1],  Pine
Chemicals Ltd. and others v. Assessing Authority and  others[2],  Khadi  and
Village Soap Industries Association and another  v.  State  of  Haryana  and
others[3],  State  of  Rajasthan  v.  Sarvotam  Vegetables  Products[4]  and
Commissioner of Sales Tax v. Industrial Coal Enterprises[5].
6.    On behalf of the revenue,  it  was  urged  that  the  notification  in
question provided  for  grant  of  exemption  only  on  the  sale  of  goods
manufactured in the State by a dealer holding  valid  exemption  certificate
under Rule 28 of the Rules, subject to the condition that  such  dealer  had
not charged tax under the CST Act on the sale of goods manufactured  by  it,
and not in respect of the sale of goods by other dealers in  the  course  of
inter-state trade.  It was the stand of the revenue that  the  assessee  had
not been granted exemption certificate under Rule 28A of the  Rules  and  as
such, the goods sold by it in course of inter-state trade were not  exempted
from the tax under the CST Act merely because the same  had  been  purchased
from  M/s  Bharati  Telecom  Limited  which  possesses  a  valid   exemption
certificate.  Reliance was placed on the decision of  this  Court  in  State
Level Committee and another v. Morgardhsammar India Ltd.[6].
7.    The High Court referred to Section 8(2A) and 5  of  the  CST  Act  and
Rule 28A(2)(n) and (4)(c) of the Rules and  notification  dated  04.09.1995;
distinguished the authorities cited by the assessee and came  to  hold  that
the expression “notional sales tax liability”  as  used  in  Rule  28A(2)(n)
takes within its fold not only the amount of tax payable  on  the  sales  of
finished goods of the eligible industrial unit under the Act  but  also  the
amount of tax payable under the CST Act on the sales  of  finished  products
of the eligible industrial units made in the course  of  inter-state   trade
or commerce and branch transfers or consignment sales outside the  State  of
Haryana. Reference was made to clause (c) of sub-rule (4)  of  Rule  28A  of
the Rules to opine that the scope of exemption was  extended  to  the  goods
manufactured by an eligible industrial unit availing  exemption  under  Rule
28A at all successive stage(s) of sale or purchase subject to the  condition
that  the  dealer  effecting  successive  purchase  or  sale  furnishing   a
certificate in form ST-14A  which  is  required  to  be  obtained  from  the
assessing authority duly filled in and signed by the  registered  dealer  to
whom such goods were sold.  Thereafter, the High Court  analysed  the  Rules
and in that context stated thus:-
“A reading of the provisions reproduced  above  shows  that  the  expression
“notional sales tax liability” takes within its fold not only the amount  of
tax payable on the sales of finished goods of the eligible  industrial  unit
under the State Act, but also the amount of tax payable  under  the  Central
Act on the sales of finished products of the eligible industrial  unit  made
in the course of inter-state trade  or  commerce  and  branch  transfers  or
consignment sales outside the State of Haryana (Rule 28A  (2)  (n)).  Clause
(c) of  sub-rule (4) of Rule 28A extends  the  scope  of  exemption  to  the
goods manufactured by an eligible industrial unit availing  exemption  under
Rule 28A at all successive stage(s) of  sale  or  purchase  subject  to  the
condition that the dealer effecting successive purchase  or  sale  furnishes
to the Assessing a certificate in  form  ST-14A  which  is  required  to  be
obtained from the Assessing Authority duly  filled  in  and  signed  by  the
Registered dealer to whom such goods were sold. Sub-rule  (6)  of  Rule  28A
lays down the mechanism for grant of exemption/entitlement certificate. Sub-
rule (7) envisages renewal  of  exemption  certificate  and  lays  down  the
procedure for grant of renewal. Section 8(2A) of the Central Act contains  a
non-obstante clause. It lays down that  notwithstanding  anything  contained
in Section 6(1A) or sub-section (1) or clause  (b)  of  sub-Section  (2)  of
Section 8, the tax payable  under  the  Central  Act  by  a  dealer  on  his
turnover in so far as the turnover or a part thereof relates to the sale  of
any goods, the sale or purchase of which is  exempted  from  tax  under  the
State Act or is subjected to tax at a rate lower than 4%  shall  be  nil  or
shall be calculated at the lower rate.  Sub-section (5) of  Section  8  also
begins with a non-obstante clause.  It  empowers  the  State  Government  to
grant exemption from payment of tax or levy of tax at a lower  rate  on  the
dealer having his place of business in respect of the sales made by  him  in
the course of inter-State trade or commerce.  It  also  empowers  the  State
Government to direct that no tax shall be payable under the Central  Act  or
tax shall be calculated at lower rates in respect of all sales of  goods  or
classes of goods as may be specified in the notification which are  made  in
the course of inter-State trade or commerce by any dealer having  his  place
of business in the State or class of dealers specified in the  notification.
Notification dated 4.9.1995 declares that no tax shall be payable under  the
Central Act w.e.f. 1.4.1988 on the sale of goods manufactured in  the  State
of Haryana by any dealer holding a valid exemption  certificate  under  Rule
28A of the Rules, provided that such dealer has not charged  tax  under  the
Central Act on the sale of goods manufactured by him.”

8.    After so stating, the High Court referred to  the  notification  dated
04.09.1995 and observed that it was not happily worded  and  thereafter,  it
proceeded to hold that the tribunal was correct  in  following  its  earlier
order for arriving at the conclusion that the notification  did  not  exempt
the goods sold in the course of  inter-state  trade  by  dealer  other  than
those who held valid exemption certificate granted under  Rule  28A  of  the
Rules.  It further ruled that if the State Government wanted to  extend  the
benefit of exemption from payment of tax under the CST Act to  the  sale  of
goods effected by a dealer in the course of inter-state  trade  irrespective
of the fact that such dealer did not hold valid exemption certificate  under
Rule 28A of the Rules, then it would have incorporated the language of  Rule
28A(4)(c) of the Rules in the notification and would not have  put  a  rider
that such dealer should not have charged tax under the CST Act on  the  sale
of goods manufactured by it.
9.    Thus, the ultimate conclusion recorded  by  the  High  Court  is  that
successive sales of goods manufactured by  dealer  holding  valid  exemption
certificate were exempt from payment of sales  tax  so  long  as  they  were
inter-state sales but in respect of sale of goods by a  dealer  not  holding
exemption certificate under Rule 28A in the  course  of  inter-state  trade,
the benefit of exemption envisaged under notification dated  04.09.1995  was
not available to such dealer.  The Division Bench proceeded to clarify  that
in respect of stages of sale which are exempt from payment of tax under  the
Act are covered by Rule 28A(4)(c)  but  notification  dated  04.09.1995  was
applicable only to sale of goods manufactured by the  exempted  unit.  Being
of this view, it answered  the  reference  in  favour  of  the  revenue  and
against the assessee.
10.   Mr. Balbir Singh, learned senior counsel appearing for the  appellant,
has submitted that though the notification was made under the  CST  Act,  it
exempts goods as well as manufacture.  Learned senior counsel  would  submit
that on a plain reading of the notification, it  is  demonstrable  that  the
exemption is on the sale of goods and there  is  no  reference  to  unit  or
category of dealers for the purpose of extending  the  exemption.  Once  the
language is clear, submits Mr. Singh, there is no  scope  of  searching  for
intendment and, in fact, a bare perusal of the  notification  is  sufficient
to  determine  its  applicability  or  non-applicability.  To  sustain   the
submission, he has drawn our attention to the authority in Govt.  of  A.P  &
others. v. P. Laxmi Devi[7]; Ranbaxy Laboratories Ltd.  v.  Union  of  India
and others[8]; Bansal Wires Industries Ltd. &  another  v.  State  of  Uttar
Pradesh and others[9] and Parle Biscuits  (P)  Ltd.  v.  State  of  Bihar  &
others[10].  Learned senior counsel has  further  contended  that  the  High
Court has committed an error in noting that in the  notification,  there  is
no similar expression as used in Rule 28A(4)  of  the  Rules.  According  to
him, the reasoning given by the High Court  is  fallacious  on  two  scores,
namely, (i) Rule 28A(4)(c) of the Rules exempts all  subsequent  sales  made
in the State of Haryana, as one product can be  sold  any  number  of  times
within the State, whereas there can be only one inter-state  sale  from  the
State of Haryana, and consequently there is no requirement of any  reference
to  subsequent  sale  in  notification  dated  04.09.1995;  and  (ii)   Rule
28A(4)(c) of the Rules provides  a  mechanism  to  confirm  that  goods  are
manufactured by a person holding exemption certificate in terms of Rule  28A
by providing the requirement to  furnish   a  certificate  in  the  form  of
certificate ST-14A.  Section 8(5) of the CST Act  mandates  the  requirement
of issuance of Form C by the buying dealer which is  to  be  issued  by  the
sales tax authorities of  purchasing  State  and,  therefore,  there  is  no
requirement for such mechanism to be provided in  the  notification.  It  is
highlighted by him that if the interpretation placed by the  High  Court  is
accepted, it would tantamount to making exempted  goods  chargeable  to  tax
and further, the goods  manufactured  by  eligible  manufacturer  would  not
remain competitive in spite of exemption being given  to  such  manufacturer
unless all subsequent stages including inter-state  sales  are  exempt  from
payment of tax. The emphasis is on exemption at subsequent stages  including
inter-state sale. Mr. Singh has drawn immense inspiration from  the  proviso
to the notification dated 04.09.1995  to  bolster  the  submission  that  it
restrains the eligible manufacturer from charging any tax on  its  sales  as
otherwise it would amount to unjust enrichment.
11.    Mr.  Sanjay  Kumar  Visen,  learned  counsel   for   the   respective
respondent(s), per contra, while supporting the order  passed  by  the  High
Court,  would  submit  that  benefit  of  exemption  has  been  granted  for
promoting new industry in the State and this is in consonance with Rule  28A
of the Rules which provides  unit  holding  a  valid  exemption  certificate
which sells goods purchased by it in the State without charging any tax  and
the said Rule  also  exempts  all  subsequent  intra-state  sales  as  such.
Elaborating further, it is urged that notification dated  04.09.1995  issued
under sub-section (5) of Section 8 of the CST Act can extend the benefit  of
tax exemption to only such inter-state sales of goods  which  are  purchased
inside the State by a unit holding valid exemption  certificate  and  hence,
the exemption from CST Act is subject  to  the  condition  that  the  dealer
effecting  inter-state  sale  should  hold  a  valid  exemption  certificate
irrespective of the goods sold  in  the  course  of  inter-state  trade  and
commerce and purchased by him inside  the  State.    Learned  counsel  would
submit that while interpreting a notification of the present nature,  strict
interpretation has to be followed as per law laid  down  by  this  Court  in
NOVOPAN India Ltd., Hyderabad v. Collector of Central  Excise  and  Customs,
Hyderabad[11].
12.   To understand the controversy in proper perspective, it  is  necessary
to refer to Section 8(2A) and 5 of the CST Act. They read as follows:-
“(2A) Notwithstanding anything contained in sub-section (1-A) of  Section  6
or sub-section (1) or clause (b) of sub-section (2)  of  this  Section,  the
tax payable under this Act by a dealer on his turnover  in  so  far  as  the
turnover or any part thereof relates to the sale of any goods, the sale  or,
as the case may be, the purchase of which is, under the  sales  tax  law  of
the  appropriate  State,  exempt  from  tax  generally  or  subject  to  tax
generally at a rate which is lower than four percent (whether called  a  tax
or fee or by any other name), shall be nil, or as the case may be, shall  be
calculated at the lower rate.

     xx              xx               xx                xx
(5)  Notwithstanding  anything  contained  in  this   Section,   the   State
Government may, if it is satisfied that it is necessary  so  to  do  in  the
public interest, by notification in the official  gazette,  and  subject  to
such conditions as may be specified therein, direct

(a) that no tax under this Act shall be payable by  any  dealer  having  his
place of business in the State in respect  of  the  sales  by  him,  in  the
course of inter-state trade or commerce, from any such place of business  of
any such goods or classes of goods as may be specified in the  notification,
or that the tax on such sales shall be calculated at such lower  rates  than
those specified in sub-section (1) or sub-section(2) as may be mentioned  in
the notification.

(b) That in respect of all sales of goods or sales of such classes of  goods
as may be specified in the notification, which are made  in  the  course  of
inter-state trade or commerce, by any dealer having his  place  of  business
in the State or by any class of such dealers as  may  be  specified  in  the
notification to any person or to such class of persons as may  be  specified
in the notification, no tax under this Act shall be payable or  the  tax  on
such sales shall be calculated at such lower rates than those  specified  in
sub-section(1) or sub-section (2) as may be mentioned in the  notification.”


      The aforesaid  provision  clearly  enables  the  State  Government  to
exempt the tax payable under the CST  Act  in  public  interest  by  issuing
appropriate notification.  For the said purpose, the  State  Government  has
to be satisfied and is also entitled to impose conditions which have  to  be
specified in the notification.
13.   Keeping in view the aforesaid provision and the notification which  we
shall refer to hereinafter, the factual score is to be  appreciated.  It  is
not in dispute that the appellant had sold the goods in question which  were
manufactured by M/s  Bharati  Telecom  Limited  that  was  holding  a  valid
exemption certificate under Rule  28A  of  the  Rules.   The  appellant  had
claimed central sales tax exemption of such goods in terms  of  notification
dated 04.09.1995 by urging that such exemption was in  respect  of  sale  of
goods which were manufactured by any dealer in  the  State  of  Haryana  who
held a valid exemption certificate. The core  controversy  pertains  to  the
interpretation of notification dated 04.09.1995 which  has  been  issued  by
the competent authority in exercise of power under Section 8(5) of  the  CST
Act. It reads as follows:-
                        “Notification dated 4.9.1995”
“No.S.O.89/CA. 74/56/S.8/95 dated 4.9.1995
– In exercise of the powers conferred by sub-section (5)  of  Section  8  of
the Central Sales Tax Act, 1956 the  Governor  of  Haryana  being  satisfied
that it is necessary so to do in the public interest,  hereby  directs  that
no tax under the said Act shall be payable with  effect  from  1.4.1988,  on
the sale of goods, manufactured in  the  State  of  Haryana  by  any  dealer
holding a valid  exemption  certificate  under  Rule  28-A  of  the  Haryana
General Sales Tax Rules, 1975 during the period of exemption: provided  that
no tax under the said Act has been charged by such dealer  on  the  sale  of
goods manufactured by him.”


14.    The  above  notification  has  been  issued  in  exercise  of  powers
conferred by sub-section (5) to Section 8 of the CST Act by the Governor  of
Haryana in public interest.  As per the  notification,  no  tax  is  payable
under the aforesaid Act w.e.f. 1st April, 1988 on sale of goods  during  the
period of exemption that are manufactured in the State  of  Haryana  by  any
dealer, who holds a valid  exemption  certificate  under  Rule  28A  of  the
Rules. Proviso to the said notification stipulates that the  dealers  should
have also not charged any tax under the Central Sales Tax Act  on  the  sale
of goods manufactured by him.
15.   As mentioned earlier, sub-section (5) to Section  8  of  the  CST  Act
begins with the non-obstante clause and empowers State Governments to  issue
a notification in the official gazette subject to the  condition(s)  as  may
be specified and under clause (a) direct that no tax  shall  be  payable  by
any dealer having his place of business in the State in respect of  sale  in
the course of inter-state trade or commerce, etc. and under  clause  (b)  in
respect of all sales of goods or classes of goods,  etc.  In  this  context,
Rule 28A is extremely relevant.  The said Rule, as per  heading  relates  to
class of industries, period and  other  conditions  for  exemption/deferment
from payment of tax.  Sub-rule 1, 2(f), (j),  (k),  (l),  (n)  clauses  (i),
(ii), (iii), (4)(a) and sub-rule  4(2)(c)  of  Rule  28A  are  relevant  and
reproduced below:-

“Sub-Rule (1): The industries covered under this rule shall not be  entitled
to  any  deferment  or  exemption  from  payment  of  tax  under  any  other
provisions of these rules.

Rule 2(f): ‘Eligible industrial unit’ means:
(i) a new industrial unit or expansion or diversification  of  the  existing
unit, which-
(I) has obtained certificate of registration under the Act;
(II) is not a public sector undertaking where the  Central  Government  held
51 per cent or more shares;

2(j): “eligibility certificate” means a certificate granted  in  Form  ST-72
by the appropriate screening committee to an eligible  industrial  unit  for
the purpose of grant of exemption deferment;

(k) “exemption certificate” means a certificate granted  in  Form  ST-73  by
the Deputy Excise and Taxation Commissioner of the district to the  eligible
industrial unit holding eligibility certificate which entitles the  unit  to
avail of exemption from the payment of sales or purchase  tax  or  both,  as
the case may be;

(l) “entitlement certificate” a certificate granted in  Form  ST-72  by  the
Deputy Excise and Taxation Commissioner of  the  district  to  the  eligible
industrial unit holding eligibility certificate which  entitles  it  to  get
deferment of sales tax.

(n) “notional sales tax liability” means –
(i) amount of tax payable on the sales of finished products of the  eligible
industrial unit under the local sales tax law but for an exemption  computed
at the maximum rates specified under the local sales tax law  as  applicable
from time to time; and

Explanation: The sales  made  on  consignment  basis  within  the  State  of
Haryana or branch transfer within the State of Haryana shall also be  deemed
to be sales made within the State and liable to tax;

(ii) amount of tax payable under the Central Sales Tax  Act,  1956,  on  the
sales of finished products of the  eligible  industrial  unit  made  in  the
course of inter-State  trade  or  commerce  computed  at  the  rate  of  tax
applicable to such sales as if these were made against certificate  in  Form
C on the basis that the sales are eligible to tax under the said Act.

Explanation: The branch transfers or consignment sales outside the State  of
Haryana shall be deemed to be sale in the course  of  inter-State  trade  or
commerce.

Note:- The expression and terms, if any appearing in this rule  not  defined
above shall unless the context otherwise requires carry the same meaning  as
assigned to them under the Act and rules made there under.

(3) Option – An eligible industrial unit may opt either to avail benefit  of
tax exemption or deferment.  Option once exercised  shall  be  final  except
that it can be changed once from exemption to deferment  for  the  remaining
period and balanced quantum of benefit.

(4)(a) Subject to  other  provisions  of  this  rule,  the  benefit  of  tax
exemption or deferment  shall  be  given  to  an  eligible  industrial  unit
holding exemption or entitlement certificate, as the  case  may  be  to  the
extent, for the period, from year to year in various zones from the date  of
commercial production or from the date of  issue  of  entitlement  exemption
certificate as may be opted as under.

4(2)(c) The goods manufactured  by  an  eligible  industrial  unit  availing
exemption under this rule shall be exempt from the levy of tax  at  all  the
successive stage(s) of sale or purchase subject to the  condition  that  the
dealer affecting the successive purchase or sale furnishes to the  assessing
authority a certificate in Form ST-14A to be  obtained  from  the  assessing
authority as against payment of such sum  as  may  be  fixed  by  the  State
Government from time to time, duly filled in and signed  by  the  registered
dealer by whom such goods were purchased.”

16.   Sub-rule (1) makes it clear that industries  are  covered  under  this
rule and the said industries would not  be  entitled  to  any  deferment  or
exemption from payment of tax under any other  provisions  of  these  rules.
The expression ‘eligible industrial unit’ is defined in clause (f)  to  sub-
rule (2).  Similarly,  ‘eligibility certificate’,  ‘exemption  certificate’,
etc. are defined in clauses (j) and (k) to sub-rule (2).  Clause (n) to sub-
rule (2) defines the expression ‘notional sales tax  liability’  and  clause
(ii) states that the amount of tax payable under the CST  Act  on  sales  of
finished product of eligible industrial unit made in the  course  of  inter-
state trade or commerce shall be computed at the rate of tax  applicable  as
if the sales were made against form ‘C’.  In other words, inter-state  trade
or commerce of finished  products  of  eligible  industrial  units  will  be
treated as notional sales tax liability. The reference in this clause is  to
the eligible industrial unit and sales of  finished  products  made  by  the
said units, which are sold in the course of inter-state trade or commerce.
17.   The purport and impact of Rule 28-A  is  with  reference  to  eligible
industrial unit, is not only clear from the definition clauses which  define
eligibility certificate, exemption certificate, etc. but also from  sub-rule
(4)(a) which stipulates that the  benefit  of  tax  exemption  or  deferment
shall  be  given  to  an  eligible  industrial  unit  holding  exemption  or
entitlement certificate for the period specified.  Clause  (c)  to  sub-rule
(4)(2) postulates that goods manufactured by  an  eligible  industrial  unit
availing of exemption under this Rule shall be exempt from levy  of  tax  on
all successive stage/stages of sale  or  purchase,  subject  to  the  dealer
affecting the said purchase or sale furnishing a certificate in the form  of
ST-14A obtained from the assessing authority.  This clause  has  the  effect
of granting exemption from levy of tax at all successive stages of sale  and
purchase in intra-state trade or commerce i.e. within the State of  Haryana.
 To put it differently, it extends the benefit granted under clause  (n)(ii)
which relates to inter-state  trade  or  commerce  to  intra-state  sale  or
purchase.  Such sales may be one or successive and  tax  at  all  stages  is
exempt.  The exemption, therefore, is good specific, subject  of  course  to
other conditions being satisfied.
18.   It is not disputed that on all  intra-state  sales  no  tax  has  been
charged as  the  said  transactions  were  treated  as  exempt  by  the  tax
authorities.  However, in the course of inter-state sales, it  is  submitted
by the revenue that the exemption would be limited  and  available  only  if
the manufacturer i.e. the eligible industrial  unit  makes  sale  in  inter-
state trade or commerce, but if a third party, who had  procured  the  goods
from the eligible industrial unit makes  inter-state  sale,  such  trade  or
commerce would not be exempt. The  contention  of  the  State  suffers  from
incorrect appreciation  and  understanding  of  the  purport  and  objective
behind Rule 28A and the notification in question.  The basic  objective  and
purpose is to exempt the goods manufactured  in  the  State  when  they  are
further transferred in the course of inter-state  or  intra-state  trade  or
commerce.  Therefore, reference is made to the eligible industries  and  the
goods manufactured by the said industries, which are entitled to  exemption.
The exemption notification refers to the sale of  goods  manufactured  by  a
dealer holding a valid exemption certificate. The emphasis is on  the  goods
manufactured. However, it  is  confined  by  the  condition  that  the  said
manufacture should be within the exemption period and by  a  dealer  holding
an exemption certificate.
19.   We have reproduced the exemption notification above  and  referred  to
the language employed.  At this juncture,  it  is  absolutely  necessary  to
understand the language employed in the proviso  to  the  notification.   If
there  was  no  proviso  to  the  notification  there  would  have  been  no
difficulty whatsoever in  holding  that  the  exemption  is  qua  the  goods
manufactured and was not curtailed or restricted to the sales  made  by  the
manufacturer dealer and would not apply to the second  or  subsequent  sales
made by a trader, who buys the goods from the manufacturer-dealer and  sells
the same in the course of inter-state trade or commerce.   It  is  pertinent
to note that, clause (ii)  of  sub-rule  (n)  refers  to  sale  of  finished
products in the course of inter-state trade or commerce where  the  finished
products  are  manufactured  by  eligible  industrial  unit.   There  is  no
stipulation that only the first sale or the sale by the eligible  industrial
unit in Inter State or Trade would be exempt. The confusion  arises,  as  it
seems to us, in the proviso  to  the  notification  which  states  that  the
manufacturer-dealer should not  have  charged  tax.   It  needs  no  special
emphasis to mention that provisos can serve various  purposes.   The  normal
function is to qualify something enacted therein but for  the  said  proviso
would fall within the purview of the enactment.  It  is  in  the  nature  of
exception. [See : Kedarnath Jute Manufacturing Co.  Ltd  v.  Commercial  Tax
Officer[12]].  Hidayatullah, J. (as his Lordship then was) in  Shah  Bhojraj
Kuverji Oil Mills and Ginning Factory v. Subhash  Chandra  Yograj  Sinha[13]
had observed that a proviso is generally added to an  enactment  to  qualify
or create an exception to what is in the enactment, and the proviso  is  not
interpreted as stating a general rule.  Further, except for instances  dealt
with in the proviso, the same should not be used for interpreting  the  main
provision/enactment, so as to exclude something by implication.   It  is  by
nature of an addendum or dealing with a subject matter which is  foreign  to
the main  enactment.  (See  :  CIT,  Mysore  etc.  v  Indo  Mercantile  Bank
Ltd[14]). Proviso  should  not  be  normally  construed  as  nullifying  the
enactment or as taking away completely a right conferred.
20.   Read in this manner, we do not think the proviso  should  be  given  a
greater or more significant role in interpretation of the main part  of  the
notification, except as carving out an  exception.   It  means  and  implies
that the requirement of the proviso should be satisfied  i.e.  manufacturing
dealer should not have charged the tax.  The proviso would  not  scuttle  or
negate the main provision by holding  that  the  first  transaction  by  the
eligible manufacturing dealer in the  course  by  way  of  inter-state  sale
would be exempt but if the inter-state sale  is  made  by  trader/purchaser,
the same would not be exempt.  That will not be  the  correct  understanding
of the proviso.  Giving over due and extended implied interpretation to  the
proviso in the notification  will  nullify  and  unreasonably  restrict  the
general and plain words of the main notification.  Such construction is  not
warranted.
21.    Quite  apart  from   the   above,   Rule   28A(4)(c)   supports   the
interpretation and does not counter it.  The said rule  exempts  all  intra-
state sales including  subsequent  sales.   The  reason  for  enacting  this
clause is obvious.  The intention is to exempt all subsequent stages in  the
State of Haryana and the eligible product can be sold  a  number  of  times,
without payment of  tax.   Intra-state  sales  refer  to  sale  between  two
parties within the State of  Haryana.  Inter-state  transaction  results  in
movement of goods from State of Haryana  to  another  State.   Thus,  clause
(ii) of sub-rule 2(4) refers  to  inter-state  trade  or  commerce  and  the
notification does  not  refer  to  subsequent  sales  as  in  case  of  Rule
28A(4)(c).  Whether or not tax should be paid on  subsequent  sales/purchase
in the other State cannot  be  made  subject  matter  of  Rule  28A  or  the
notification. Inter-State sale from the State of Haryana will be  only  once
or not a repeated one.  Therefore, there is no requirement of  reference  to
subsequent sale.  In this context, it is rightly submitted by  the  assessee
that there is only one inter-State sale from the State of  Haryana  and  the
interpretation as suggested by the revenue would tantamount  to  making  the
exempted goods chargeable to tax, and the said goods would  cease  to  enjoy
the competitive edge given to the manufacturer in the State of Haryana.   It
will be counter-productive.
22.   In view of aforesaid analysis, we allow the appeals and set aside  all
the impugned orders and hold that assessees shall reap the  benefit  of  the
notification dated 04.09.1995  as interpreted by  us.   There  shall  be  no
order as to costs.

                                           ...............................J.
                                            [Dipak Misra]



                                           ...............................J.
    [Shiva Kirti Singh]

New Delhi.
March 29, 2016.


-----------------------
[1]    (1975) 35 STC 1
[2]    (1992) 85 STC 432
[3]    (1992) 85 STC 432
[4]    (1996) 101 STC 547
[5]    (1999) 114 STC 365
[6]    (1996) 101 STC 1
[7]    (2008) 4 SCC 720
[8]    (2011) 10 SCC 292
[9]    (2011) 6 SCC 545
[10]   (2005) 9 SCC 669
[11]   (1994) Suppl. 3 SCC 606
[12]   AIR 1966 SC 12
[13]   AIR 1961 SC 1596
[14]   AIR 1959 SC 713

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