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Friday, October 7, 2016

it is a settled legal position that there cannot be any estoppel against law. When there is a legal provision to the effect that when tea is used as raw material, no tax exemption would be available under the provisions of the Act, none can claim tax exemption in respect of sales tax payable on purchase or sale of tea. It is true that an eligibility certificate had been issued to the appellant-Company in pursuance of the 1986 Incentive Scheme of Government of Assam but when the said Scheme was given a statutory form under the Act, ‘tea’ had been excluded from the definition of raw material and therefore, on the basis of the eligibility certificate issued under the 1986 Incentive Scheme of Government of Assam, the appellant cannot claim any benefit. It is also pertinent to note that the respondent-Authorities have rightly held that the appellant was not in the business of ‘manufacturing’ tea but was merely blending and packing tea, which does not amount to ‘manufacturing’ of tea. We find substance in the said stand taken by the respondent-Authorities as the said view has been fortified by a decision of this Court in Commissioner of Income Tax, Kerala v. Tara Agencies 2007 (6) SCC 429.

                                                              NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2806 of 2009





M/s Dugar Tea Industries Pvt. Ltd ...Appellant


               Versus

State of Assam & Ors.            ...Respondents


                                    WITH
                        CIVIL APPEAL NO.3246 OF 2009
                     CIVIL APPEAL NOS.3247-3253 OF 2009
                     CIVIL APPEAL NOS.3254-3262 OF 2009
                     CIVIL APPEAL NOS.3264-3266 OF 2009



                      J U D G M E N T



ANIL R. DAVE, J.




1. Being aggrieved by the common judgment  delivered  by  the  Gauhati  High
Court on 14th November, 2006, the appellants have approached this  Court  by
way of these appeals.

2.    The facts giving rise to the present litigation, in  a  nutshell,  are
as under:

      As the legal issues involved in  all  of  the  aforesaid  appeals  are
same, for the purpose of convenience, we have taken facts from Civil  Appeal
No.2806 of 2009.

3.    The appellant is a private limited company engaged in the business  of
blending and packing of tea.  After some  modernisation,  it  commenced  its
production in April, 1988.  The  case  of  the  appellant-Company  was  with
regard to availing sales tax concession declared  by  the  respondent-State.
Before going through the relevant provisions, we may record  the  fact  that
the respondent-State had notified its Industrial Policy in 1982,  which  had
thereafter been revised in 1986.  The said Policy had been framed so  as  to
increase economic and industrial growth in the State.

4.    In pursuance of the aforestated Policy, the  respondent-State  enacted
Assam Industries (Sales Tax Concession) Act, 1987 (hereinafter  referred  to
as “the Act”).  By  virtue  of  the  provisions  of  the  Act,  certain  new
industries, subject to certain conditions, were to be given  exemption  from
payment of sales tax but the exemption was not to be  given  in  respect  of
certain commodities.

5.    The case of the  appellant-Company  was  that  the  Company  was  made
eligible for certain concessions  in  pursuance  of  the  Industrial  Policy
framed by the government, which had been declared in  1982,  but  ultimately
the benefits had been denied to the company under the Act.

6.    The reason for not giving the benefits under the  Act,  as  stated  by
the respondent- Authorities, was that ‘tea’ was a raw material,  in  respect
of which no exemption was to be given and the appellant-Company  was  merely
blending and packing tea and was not having any manufacturing activity.

7.    As the sales tax exemption had been denied to  the  appellant-Company,
the appellant-Company filed petitions  before  the  High  Court  challenging
denial of the tax exemption but the petitions had been rejected by a  common
Judgment dated 9th September, 2003 and being aggrieved by the  rejection  of
the petitions, the appellant-Company had  also  filed  writ  appeals,  which
have been dismissed by a common Judgment dated 14th November, 2006, and  the
said judgment has been challenged in these appeals.

8.     The  learned  counsel  appearing  for  the  appellant-Company  mainly
submitted  that  the  appellant-Company  had  been  given   an   eligibility
certificate dated  7th  July,  1988  under  the  1982  Incentive  Scheme  of
Government of Assam as amended in 1986. By virtue of  the  said  certificate
dated 7th July, 1988, exemption in respect of payment of sales tax had  been
granted to the appellant-Company w.e.f. 14th  April,  1988  to  13th  April,
1993, as the appellant- Company was  eligible  to  get  the  exemption  from
payment of sales tax under  the  1986  Incentive  Scheme  of  Government  of
Assam.

9.    The learned counsel  further  submitted  that  as  per  the  exemption
granted under the eligibility  certificate,  the  respondent-State  and  the
Sales Tax Authorities of the respondent-State were bound to  give  exemption
from payment of sales tax to the  appellant,  but  the  appellant  had  been
denied the  exemption,  which  was  neither  fair  nor  legal.   He  further
submitted that as  per  the  conditions  incorporated  in  the  scheme,  the
appellant-Company had already made  investments  and  had  already  employed
local persons of the State of Assam in service.  Having  complied  with  all
the  conditions,  the  eligibility  certificate  had  been  issued  to   the
appellant-Company and therefore,  the  respondent-Authorities  are  estopped
from denying the benefit which had been assured to it under the  eligibility
certificate dated  7th  July,  1988.   The  learned  counsel  cited  several
judgments to substantiate his case that once an assurance was given  to  the
appellant under  the  eligibility  certificate  that  the  appellant-Company
would be enjoying exemption under the 1986 Incentive  Scheme  of  Government
of Assam, the exemption could not have been  withdrawn  by  the  respondent-
Authorities.

10.   On the other  hand,  the  learned  counsel  appearing  for  the  State
Authorities supported the judgments delivered by the  learned  Single  Judge
as well as by the Division Bench of the High Court.

11.   The learned counsel  submitted  that  there  cannot  be  any  estoppel
against legal provisions.  He further submitted that as  per  Rule  2(f)  of
Assam Industries (Sales Tax Concession) Rules, 1988, ‘tea’ is  not  the  raw
material in respect of which exemption from payment of sales tax  is  to  be
granted.  In view of the aforestated statutory provision and in view of  the
fact that tea was the ‘raw material’ which was being used by the  appellant-
Company for the purpose of blending  and  packing,  the  appellant  was  not
entitled to any exemption.

12.   Moreover, he submitted that the appellant- Company  was  not  involved
in any manufacturing activity. It was merely blending and  packing  tea  and
blending as well as packing of tea was  not  a  manufacturing  activity  and
therefore, also the appellant was not entitled to  the  benefit  claimed  by
it.

13.   The  learned  counsel  thereafter  submitted  that  according  to  the
provisions of Section 4 of the  Act,  Certificate  of  Authorisation  should
have been procured by the appellant for availing the benefit under the  Act.
 Such a Certificate of Authorisation had never been issued to the appellant-
Company and therefore, the appellant was not entitled to  the  exemption  in
respect of payment of sales tax claimed by it.

14.   For the aforestated reasons, the learned counsel  submitted  that  the
appeals deserved to be dismissed.

15.   We have heard the learned counsel at length and  have  considered  the
relevant legal provisions and the  judgments  referred  to  by  the  learned
counsel.

16.   Upon perusal of the record and the law laid down by this Court in  the
light of the facts of the  case,  we  are  of  the  opinion  that  the  view
expressed by the Courts below cannot be said to be incorrect.

17.   Rule 2(f) of the Assam Industries (Sales Tax Concession)  Rules,  1986
reads as under:-

“2(f) ‘Raw material’ means any material or commodity capable of  being  used
for  manufacture  of  any  other  product  specified  in  any  authorisation
certificate as intended by the holder for use by him as raw material in  the
manufacture of goods in the State for sale by him but shall not include  the
following commodities namely :

tea, (b) coal, (c) liquefied petroleum gas, (d) plywood, (e) petrol,  diesel
oil and lubricants.”



    In view of the aforestated Rule, it is crystal clear that tea is not  to
be included in “raw material” and therefore, no exemption  could  have  been
claimed by the Appellant Company in respect of ‘tea’ as a raw  material  for
purchase as well as sale of tea.  It is also  pertinent  to  note  that  the
appellant had earlier preferred Civil Rule No.4162 of 1991 before  the  High
Court challenging validity of the  aforestated  Rule.   The  learned  Single
Judge, while rejecting the petition, vide  order  dated  17th  August,  1988
held that Rule 2(f) of the 1988 Rules was legal and valid and  the  plea  of
promissory estoppel raised by the appellant was also not accepted.   Against
the said judgment, no appeal was filed by the appellant and  therefore,  the
said issue had attained finality.

18.    Another  important  thing  is   with   regard   to   certificate   of
authorisation.

19.   It is an admitted fact that so as to avail the benefit as per  Section
4 of the Act, certificate of authorisation is  a  must.   The  said  Section
reads as under:

“4.   Certificate of authorisation –

(1) A person undertaking to manufacture in the State such goods, as  may  be
prescribed,  may  make  an  application  in  the  prescribed  form  to   the
prescribed authority and within the prescribed time  for  a  certificate  of
authorisation for the purposes of sub-section (1) of section 3.

(2)   If the authority to whom an application is made under sub-section  (1)
is satisfied that the application is in conformity with  the  provisions  of
the Act and the rules made there under it shall grant  to  the  applicant  a
certificate of authorisation in the prescribed form which shall specify  the
class or classes of goods for purposes of sub-section (1) of section  3  and
the period for which it shall remain valid.

(3)   A certificate  of  authorisation  granted  under  this  section  shall
remain valid for a period of five years  from  the  date  of  completion  of
effective steps for setting up the industrial unit in respect of  which  the
certificate is granted.

(4)   No certificate of authorisation shall  be  granted  under  sub-section
(2) except in respect of such raw materials as may be prescribed.

(5)   A certificate of authorisation granted under this section may:-

(a)   be amended by the authority granting it if he is satisfied  either  on
the application of the holder or, where no such application has  been  made,
after due notice to the holder, that by reason of the holder having  changed
the name, place or nature of his business or the class or classes  of  goods
bought, sold or manufactured by him or for any other reason the  certificate
of authorisation granted to him required to be amended; or

(b)   be cancelled by the authority  granting  it,  where  he  is  satisfied
after due notice to the holder that  the  holder  has  ceased  to  carry  on
business or for any other sufficient reason.”



20.   As stated hereinabove, it is an admitted fact that no  certificate  of
authorisation, as provided under the Act,  had  ever  been  granted  to  the
appellant-Company and therefore, in  our  opinion,  the  courts  below  were
absolutely right to the effect that the appellant was not  entitled  to  any
sales tax exemption.

21.   So far as the averments with regard to estoppel are concerned,  it  is
a settled legal position that there cannot  be  any  estoppel  against  law.
When there is a legal provision to the effect that when tea is used  as  raw
material, no tax exemption would be available under the  provisions  of  the
Act, none can claim tax  exemption  in  respect  of  sales  tax  payable  on
purchase or sale of tea.  It is true that  an  eligibility  certificate  had
been issued to the appellant-Company in  pursuance  of  the  1986  Incentive
Scheme of Government  of  Assam  but  when  the  said  Scheme  was  given  a
statutory form under the Act, ‘tea’ had been excluded  from  the  definition
of raw material and therefore, on the basis of the  eligibility  certificate
issued  under  the  1986  Incentive  Scheme  of  Government  of  Assam,  the
appellant cannot claim any benefit.

22.   It is also pertinent to  note  that  the  respondent-Authorities  have
rightly held that the appellant was not in the business  of  ‘manufacturing’
tea but was merely blending and  packing  tea,  which  does  not  amount  to
‘manufacturing’ of tea.  We find substance in the said stand  taken  by  the
respondent-Authorities as the said view has been fortified by a decision  of
this Court in Commissioner of Income Tax, Kerala v. Tara Agencies  2007  (6)
SCC 429.

23.   For the aforestated reasons assigned by  the  State  in  the  impugned
order passed as well as in the judgments delivered by  the  High  Court,  we
cannot find fault with the impugned judgment and  therefore,  these  appeals
deserve dismissal.

24.   The appeals are accordingly dismissed.  However,  there  shall  be  no
order as to costs.




................................J.
                                     (ANIL R. DAVE)



                              ................................J.
                                           (SHIVA        KIRTI        SINGH)

NEW DELHI;
OCTOBER 06, 2016.

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