JUDGMENT
Ramesh Ranganathan, J.
1. The order of the third respondent, in PR No. 2/2005-06 dated May 18, 2005, imposing penalty of Rs. 49,59,358 on the petitioner for having effected purchase of cement valued at Rs. 61,99,198 from M/s. India Cements Ltd., against Form-G, though cement was made ineligible for purchase at concessional rate of tax under Section 5-B of the Andhra Pradesh General Sales Tax Act, 1957 (APGST Act) and in terms of G.O. Ms. No. 496, dated July 17, 2001, (See [2001] 123 STC Statutes 102.) is challenged in these writ petitions, as illegal and without jurisdiction consequent upon the repeal of the APGST Act on April 1, 2005 by Section 80 of the Andhra Pradesh Value Added Tax Act, 2005 (VAT Act).
2. The facts, to the extent necessary, for the purpose of this writ petition, are that the petitioner, a limited company undertaking works contracts in different parts of Andhra Pradesh, was initially an assessee on the file of the second respondent and from the assessment year 2001-02 came to be assessed by the third respondent. The petitioner-company submitted an application in form G-1, as envisaged in Section 5-B of the APGST Act, and the second respondent issued a certificate of registration as manufacturer under Section 5-B of the APGST Act in form G-2 on March 18, 2002. This certificate, which remained in force till March 31, 2005, facilitated the petitioner to purchase the raw materials mentioned therein at a concessional rate of tax of 4 per cent with effect from March 18, 2002.
3. During the assessment year 2004-05, the petitioner purchased cement for Rs. 61,99,198 by issuing “G” declaration forms. The petitioner contends that since the APGST Act, on its being repealed and replaced by the VAT Act, ceased to remain in force from April 1, 2005, proceedings not initiated prior to its repeal could not be initiated thereafter.
4. The third respondent issued penalty notice, on April 12, 2005, that purchase of cement by the petitioner-company from resident registered dealers at concessional rates against form G declaration was illegal and impermissible, despite the said commodity being included in the G-2 certificate in view of the prohibition on purchase of cement as against “G” forms, as provided in G.O. Ms. No. 496 dated July 17, 2001. In reply to the show cause notice dated April 12, 2005, the petitioner submitted its objections on April 30, 2005 pursuant to which the impugned proceedings dated May 18, 2005 came to be passed by the third respondent levying penalty of Rs. 49,59,358 equivalent to five times the tax due on the value of cement purchased by the petitioner.
5. The petitioner contends that the action of the third respondent in initiating proceedings by issuance of show cause notice dated April 12, 2005, and passing the impugned order dated May 18, 2005, under the repealed APGST Act, long after its repeal and commencement of VAT Act, was without jurisdiction and without authority of law. Reliance is placed on Section 80 of the VAT Act, 2005 to contend that only action done or proceedings initiated/commenced before repeal of the APGST Act but pending at the commencement of the VAT Act, 2005 is protected thereunder and not action initiated after repeal of the APGST Act, 1957. The petitioner also relies on the judgment of the Punjab and Haryana High Court in Hindustan Construction Company v. State of Haryana [2005] 141 STC 119; [2005] 1 VST 105 in support of his submission that no action can be initiated under the APGST Act after its repeal.
6. While admitting that the petitioner had preferred an appeal, against the order of the third respondent dated May 18, 2005, to the fourth respondent, that the stay application filed along with the appeal was rejected on June 30, 2005 and on such rejection the third respondent had issued notice on July 13, 2005 directing the petitioner to deposit the disputed tax within seven days of receipt of notice failing which, the petitioner was informed that, coercive action under the Revenue Recovery Act would be initiated against him, it is nonetheless contended that since the statutory appeal was filed inadvertently and as the appeal itself was incompetent in view of the repeal of the APGST Act, no useful purpose would be served in pursuing the appeal.
7. The short question, which therefore, arises for consideration is as to whether the third respondent was entitled to initiate and complete penalty proceedings under the APGST Act subsequent to its repeal and the introduction of AP VAT Act, 2005 with effect from April 1, 2005.
Section 80 of the AP VAT Act, 2005 reads as under:
“80. Repeal Act VI of 1957. — (1) The Andhra Pradesh General Sales Tax Act, 1957 is hereby repealed:
Provided that such repeal shall not affect the previous operation of the said Act or section or any right, title, obligation or liability already acquired, accrued or incurred thereunder, and subject thereto, anything done or any action taken (including any appointment, notification, notice, order, rule, form, regulation, certificate, licence or permit) in the exercise of any power conferred by or under the said Act or section shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act was in force on the date on which such thing was done or action was taken; and all arrears of tax and other amounts due at the commencement of this Act may be recovered as if they had accrued under this Act.
(2) Notwithstanding anything contained in Sub-section (1), any application, appeal, revision or other proceeding made or preferred to any officer or authority under the said Act or section and pending at the commencement of this Act, shall, after such commencement, be transferred to and disposed of by the officer or authority who would have had jurisdiction to entertain such application, appeal, revision or other proceeding under the Act if it had been in force on the date on which such application, appeal, revision or other proceeding was made or preferred.
(3) Upon such repeal of the Andhra Pradesh General Sales Tax Act, 1957 the provisions of Sections 8, 8-A, 9 and 18 of the Andhra Pradesh General Clauses Act, 1891 shall apply.
Section 80(3) of the AP VAT Act, 2005, provides for the application of Section 8 of the Andhra Pradesh General Clauses Act, 1891 on the repeal of the APGST Act, 1957. Section 8 of the A.P. General Clauses Act, 1891 reads as under:
“Effect of repealing an Act. — Where any Act to which this Chapter applies, repeals any other enactment, then the repeal shall not:
(a) affect anything done or any offence committed, or any fine or penalty incurred or any proceedings begun before the commencement of the repealing Act; or
(b) revive anything not in force or existing at the time at which the repeal takes effect; or
(c) affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed; or
(d) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(e) affect any fine, penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(f) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, any such fine, penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed.”
8. Even in the absence of a provision similar to Section 80(3) of the A.P. Value Added Tax Act, 2005, it has been held that Section 8 of the Andhra Pradesh General Clauses Act, 1891, which is analogous to Section 6 of the General Clauses Act, is not confined to mere repeal of a statute but extends to a repeal followed by fresh legislation, unless a different intention appears from the new enactment and that it is for the court to enquire whether the fresh legislation had preserved the rights and liabilities created under the old statute or whether their intendment was to obliterate them [State of Punjab v. Mohar Singh AIR 1955 SC 84 and State of Andhra v. Dakarapu Ramaswami (1958) 2 Andhra Weekly Reporter 79]. This difficulty does not, however, arise in the present case, inasmuch as Section 80(3) of the AP VAT Act, 2005 specifically makes Section 8 of the A.P. General Clauses Act, 1891 applicable on the repeal of the APGST Act.
9. In Hindustan Construction Company [2005] 141 STC 119; [2005] 1 VST 105, the Haryana General Sales Tax Act, 1973 was repealed under Section 61(1) of the Haryana Value Added Tax Act, 2003 (See [2003] 130 STC Statutes (Suppl. B) 227.). While Section 61(2)(a) of the Haryana VAT Act, 2003 is similar to Section 80(2) of the A.P. VAT Act, 2005, there is no reference in the said judgment to any provision similar to that of Section 80(3) of the A.P. VAT Act, 2005. It is in such circumstances that Section 4 of the Punjab General Clauses Act, (similar to Section 8 of the A.P. General Clauses Act), was held inapplicable and it was held that while enacting Section 61 of the Haryana VAT Act, 2003, a different intention had been expressed by the State Legislature and that the effect of the repealed clause in Section 61 clearly excludes the operation of Section 4 of the Punjab General Clauses Act. Since Section 80(3) of the A.P. VAT Act, 2005 makes Section 8 of the A.P. General Clauses Act, applicable on the repeal of the APGST Act, 1957, reliance placed, on the judgment of the Punjab and Haryana High Court in Hindustan Construction Company’s case [2005] 141 STC 119; [2005] 1 VST 105, is of no avail.
10. A reading of Clauses (d), (e) and (f) of Section 8 of the A.P. General Clauses Act makes it clear that repeal of the APGST Act, 1957 would not affect any obligation or liability incurred under the said Act; or affect any fine, penalty or punishment incurred in respect of any offence committed under the said Act; or affect any legal proceeding in respect of any such liability, fine, penalty or punishment, that any legal proceedings may be instituted (emphasis supplied), continued or enforced (emphasis supplied) and that any such fine, penalty or punishment may be imposed as if the repealing Act had not been passed. It is thus obvious that in view of Section 8 of the A.P. General Clauses Act, 1891, having been made specifically applicable under Section 80(3) of the VAT Act, upon the repeal of the APGST Act, the third respondent was not prohibited from initiating penalty proceedings under the repealed APGST Act, 1957, even after the A.P. Value Added Tax Act, 2005 came into force.
11. The writ petition, as filed, is wholly misconceived and the same is accordingly dismissed. Needless to state that since the only question which has been decided in this writ petition is the jurisdiction of the third respondent to initiate penalty proceedings against the petitioner under the repealed APGST Act even after April 1, 2005, all other questions raised by the petitioner in the appeal filed by it before the fourth respondent are required to be considered on their own merits. There shall be no order as to costs.
