REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1538 OF 2009
[ARISING OUT OF S.L.P. (CIVIL) NO. 25483 OF 2007]
M/S BOC INDIA LTD. ... APPELLANT
Versus
STATE OF JHARKHAND & ORS. ... RESPONDENTS
WITH
CIVIL APPEAL NO. 1540 OF 2009
[ARISING OUT OF S.L.P. (CIVIL) NO. 3045 OF 2008]
M/S TATA STEEL LTD. ... APPELLANT
Versus
STATE OF JHARKHAND & ORS. ... RESPONDENTS
JUDGMENT
S.B. SINHA, J.
1. Leave granted.
2. These two appeals arising out of a judgment and order dated
2.11.2007 rendered by the High Court of Jharkhand at Ranchi in Writ
2
Petition (T) No. 4693 of 2005 were taken up for hearing together and are
being disposed of by this common judgment.
3. The factual matrix involved is not in dispute.
M/s Tata Iron & Steel Company Limited (TISCO) produces steel.
For the said purpose, it purchases oxygen gas from M/s B.O.C. India Ltd.
(BOC), the producer and supplier, for industrial and medical use. BOC
began supply of oxygen gas to TISCO from the year 1993.
Indisputably, TISCO applied for and was granted a registration
certificate in terms of the provisions of Section 13(1)(b) of the Bihar
Finance Act, 1981 (hereinafter called and referred to as, “the Act”). The said
certificate originally was granted on 16.3.1983. Indisputably, it was
renewed from time to time; it covered the period in question, namely, 2001-
02, having been renewed till 31.5.2004.
Indisputably, in terms of the provisions of the Act and the rules
framed thereunder, a dealer is required to show the list of goods which were
taxable at 1% as also the list of those goods which were taxable at 3%.
Oxygen was shown in the list of goods taxable at 3% as specified in
Annexure `B’ appended to the registration certificate.
3
4. We may at this stage notice the relevant statutory provisions, namely,
Sections 13(1)(b), 14 (2) and 54 of the Act, which read as under:
“13. Special rate of tax on certain sales or
purchases.- (1) Notwithstanding anything
contained in this part but subject to such
conditions and restrictions as may be prescribed.(a) …
(b) Sales to or purchases by a registered dealer of goods
required by him directly for use in the manufacture or
processing of any goods for sale.14. Registration of dealers. (1) …
(2) Every dealer required by sub-section (1) to
be in possession of a registration certificate shall
apply for the same in the prescribed manner to the
prescribed authority, and the said authority shall,
on being satisfied that the application is in order,
register the applicant and grant him a registration
certificate within prescribed time in the prescribed
manner and in the prescribed form specifying
therein the goods or class or description of goods
which the dealer sells or purchase and such other
particulars as may be prescribed.Provided that no application referred to in
this sub-section shall be considered and be deemed
valid, unless the applicant furnishes correctly all
the prescribed particulars and, such other
particulars as may be required by the prescribed
authority in this behalf;Provided further that where a dealer
required by sub-section (1) to be in possession of a
registration certificate applies for such a certificate
4within the prescribed time-limit and in the
prescribed manner and the application is otherwise
valid in accordance with the first proviso of this
sub-section, he shall be deemed to be in
possession of a valid registration certificate from
the date he so applied for the purposes of
exercising all the rights and performing all the
duties and bearing all the liabilities under this part
and the rules made thereunder:Provided also that where a dealer carries on
any business of sale or purchase of goods, in
violation of the express and specific provisions of
any law of the State or the Union, then
notwithstanding anything to the contrary
contained in this part and without prejudice to his
liability to pay tax, the prescribed authority shall
refuse to grant him a registration certificate.54. Furnishing of information by dealers.-
If any dealer liable to pay tax under this
part-(a) disposes of his business or any part of
his business, whether by sale or
otherwise, or(b) acquires any business or part of any
business, whether by purchase or
otherwise, or(c) effects any other change in the
ownership or constitution of the
business, or(d) discontinues his business or shifts his
place of business, or(e) changes the name, style or nature of
his business or effects any change in
the class or description of goods
which he sells, or
5(f) starts a new business or joins another
business either singly or jointly with
other persons, or(g) effects any change in the particulars
furnished in an application made
under Section 14 or declaration
furnished under Section 15,
He shall, within seven days of the occurring of any
of the events aforesaid inform the prescribed
authority accordingly, and, if any such dealer dies
without doing so, his executor, administrator,
successor-in-interest or legal representative, as the
case may be, shall within fifteen days of the
dealer’s death, inform the said authority
accordingly.”5. The State in exercise of its rule making power made rules known as
Bihar Sales Tax Rules, 1983. Rules 3(9), 6(1)(b), 6(4) thereof read as under:
“3(9) (a) Every dealer to whom the provisions
of section 54 apply shall inform, in writing, the
appropriate authority prescribed in sub-rule (3)
about the complete details necessitating action
under Section 54.(b) Where the information furnished by a
dealer under section 54 or otherwise received by
the authority prescribed under sub-rule (3)
necessitates amendment of the registration
certificate of the dealer the said authority shall,
where the dealer has not submitted the certificate
for amendment, direct him to produce the
certificate and he shall comply with such direction.
On receipt of the certificate the said authority
shall, after such verification as may be necessary,
amend the certificate suitably.6
(c) Where the information furnished by a
dealer under Section 54 or otherwise received by
the authority prescribed in sub-rule (3)
necessitates amendment in a declaration furnished
under Section 15 the dealer shall furnish to the
said authority a revised declaration until such
revised declaration is furnished to the said
authority the original declaration shall continue to
be deemed valid and binding.6. Certificate under section 13.- (1) An
application for certificate under sub-section (1) of
Section 13 shall be made–(a) …..
(b) In Form III, where the certificate is
required for making purchases covered by clause(b) or (c) of the said sub-section, such application
shall be made separately in respect of every place
of business;(2) ………..
(3) ………..
(4) (a) On receipt of an application in Form
II or III if the appropriate authority prescribed in
clause (a) or (b) of sub-rule (3), as the case may
be, after verification of the particulars furnished
by the applicant or after making or causing to be
made such enquiry as it may deem necessary, is
satisfied that the application is in order, it shall
grant a certificate in Form VIA or VIB, as the case
may be.(b) On receipt of an application in Form
IV, if the Joint Commissioner of the Division,
after verification of the particulars furnished by
the applicant, or after making or causing to be
made such enquiry as he may deem necessary, is
satisfied that the application is in order he shall,
subject to the provisions of clause (a) of sub-rule
(6), grant to the applicant a certificate in Form
7VIC. A copy of the certificate so granted shall
also be sent forthwith to the Commercial Taxes
Officer in-charge of the sub-circle, if the business
is intended to be established within the local limits
of a sub-circle, and to the Deputy Commissioner
or Assistant Commissioner or Commercial Taxes
officer in charge of the Circle in other cases.”6. In terms of the said rules, application for grant of certificate is to be
filed in Form III wherein inter alia particulars of the goods which the dealer
may be permitted to purchase at special rate of tax in terms of clause (b) or
(c) of sub-Section (1) of Section 13 of the Act are required to be shown. A
registration certificate is granted in terms of Form VIB. Clause (3) whereof
reads as under:
“(3) Particulars of the goods which the holder of
the certificate is permitted to purchase at special
rate of tax, under clause (b) or (c) of sub-section
(1) of section 13._______________________________________
Description of goods. Particular purpose for
which Required
________________________________________
1 2
________________________________________
”7. Indisputably, the State from time to time issued several notifications,
one of such notification being dated 15.12.1976 in terms whereof tax at the
8rate of three per centum was prescribed in respect of the goods required
directly for use in manufacture. However, by reason of S.O. No. 604 dated
12.4.1982, the rate of sales tax on Industrial raw materials (inputs) payable
under Section 13(1)(b) of the Act was fixed at one per centum. By a
Notification being S.O. 1096 dated 9.9.1983, it was provided:
“S.O. 1096 the 9th September, 1983- In
exercise of the powers conferred by sub-section
(1) of Section 13 of the Bihar Finance Act, 1981
Part 1 (Bihar Act No. 5, 1981) and in supersession
of Finance (Commercial Taxes) Department
notification No. S.O. 604, dated the 12th April,
1982, the Governor of Bihar is pleased to direct
that the rate of sales tax payable under clause (b)
of sub-section (1) of Section 13 of the said Act on
the raw materials required directly for use in the
manufacture or processing of goods for sale in the
State or in course if inter-state trade or commerce,
excluding such raw materials which have already
undergone any manufacturing or production
process and which are required for further
assembly therewith shall be at the rate of two per
centum.”8. Yet again, by reason of S.O. 154 dated 3.2.1986 sales tax on sale of
the raw materials required directly for use in the manufacture or processing
of goods for sale excluding such raw materials which have already
undergone any manufacturing or production process and which are required
for further assembly therewith shall be at the rate of two per centum.
99. Concededly, TISCO never applied for amendment or modification of
the Registration Certificate. Oxygen gas continued to be allowed to remain
in Annexure `B’ of the Registration Certificate wherefor sales tax was
payable at the rate of three per centum. Indisputably again, till the
Assessment Year 2002-2003 for supply of oxygen gas to TISCO, BOC also
used to charge sales tax at the rate of three per centum. However, the said
purported mistake was sought to be rectified by BOC in terms of the said
Notification dated 3.2.1986 charging two per centum sales tax on the
supplies of oxygen gas made to TISCO. TISCO issued a declaration in
terms of Form IX of the Rules. BOC also deposited tax at the rate of two
per cent on the sale of industrial gases to TISCO.
10. The Deputy Commissioner of Commercial Tax issued a notice to
BOC on or about 20.4.2005, stating:
“It is informed that you have deposited tax @ 2%
on the sale of industrial gases to M/s TISCO Ltd.
Because the Hon’ble Supreme Court has dismissed
the SLP) No. 15419/2004, filed on your behalf,
vide order dated 30.3.2005.Hence, you are directed to produce the evidence
before the undersigned of deposit of the balance
admitted tax of Rs.1,02,45,572/- by 20.5.2005,
otherwise the proceedings for imposition of
penalty will be initiated against you u/s 16(9) of
Bihar Finance Act, 1981 as adopted by Jharkhand”10
Another notice dated 29.6.2005 was also issued, stating:
“In spite of informing you by this office’s letter
No. 188 dated 20.4.2005 the balance amount of
Rs.1,02,45,572/- being admitted tax has not been
deposited by you till date.Again, you are directed to produce the evidence
before the undersigned of deposit of the balance
admitted tax of Rs.1,02,45,572/- by 15.7.2005,
otherwise the proceedings for imposition of
penalty will be initiated against you u/s 16 (9) of
Bihar Finance Act, 1981 as adopted by
Jharkhand.”11. BOC in its letter dated dated 15.7.2005, addressed to the Deputy
Commissioner, Commercial Taxes, Jamshedpur Circule, Jamshedpur,
stated:
“After receiving the said letter/notice dated
29.06.05, we had taken up the matter with Tata
Steel i.e. our purchaser who is the registered
dealer for purchasing of the said Industrial Gases
including Oxygen. It has been informed by Tata
Steel that the Tata Steel is using those industrial
gases including oxygen as their raw material for
manufacturing of steel products and is covered
under Notification S.O. No.1096 dated 09.09.83,
hence the concessional rate of sales tax @ 2% is
applicable. This has already been informed earlier
by them vide their letter No.
ACCTS/ST/990/115/05 dated 31.05.05 (copy
enclosed) explaining the matter in this context.
For paying the concessional rate of sales tax
against supply/sale of Industrial Gases including
Oxygen to Tata Steel, Tata Steel has submitted
Form IX for availing the concessional rate of sales
11tax against supply of such industrial gases
including oxygen, a copy of which is enclosed
herewith.In view of the above, we request you to withdraw
your letter No. 2137 dated 29.06.05 demanding
differential rate of tax @ 1% totaling to
Rs.1,02,45,572/- and drop the case accordingly.”
The demand was again raised on BOC by the Deputy Commissioner
of Commercial Taxes, Jamshedpur Circle, Jamshedpur by its letter dated
22.7.2005 opining that TISCO was liable to pay concessional purchase tax
at the rate of three per cent on Oxygen gas. BOC was, therefore, directed to
produce the evidence of deposit of the balance differential amount of
Rs.1,02,45,572/- by 18.8.2005 failing which other modes of recovery would
be adopted.
12. Questioning the validity and/or legality of the said notice, a Writ
Petition was filed before the High Court of Jharkhad at Ranchi, which by
reason of the impugned judgment has been dismissed, holding that BOC has
no locus standi to file writ petition as admittedly tax was payable by TISCO;
being authorized to purchase at the concessional rate of three per cent and
not at the rate of two per cent and, thus, the demand made by the respondent
was unassailable, the selling dealer being bound by the certificate granted to
12
it under Section 13(1)(b) of the Act. It was also held that whether oxygen
gas is a raw material or not cannot be decided/determined in writ application
filed by BOC as TISCO alone is competent to explain to the prescribed
authority as to how, which had all along treated and mentioned as goods as
per Annexure `B’, could be treated as raw material. In view of the order of
this Court in the case of Tata Iron & Steel Co. Ltd. vs. State of Jharkhand &
ors. [(2005) 4 SCC 272], the writ petition was also held to be not
maintainable as TISCO cannot take a different stand to the effect that
oxygen gas was used by it as a raw material.
It was furthermore held:
“As per the registration certificate issued under
Section 13(1)(b) of the Act, Oxygen Gas was
treated as goods as mentioned in Annexure – B.
Endorsing the same, the purchasing dealer has
been paying the tax at the concessional rate of 3%
for a long number of years treating Oxygen Gas as
goods. The selling dealer is bound by the said
certificate. Accordingly, he has been collecting
sales tax @ 3% from the beginning till 2000 and
thereafter he started collecting sales tax @ 2%
treating the same as raw material. Neither the
purchasing dealer, nor the selling dealer can
decide the nature of the goods on their own, unless
the certificate is modified by the prescribed
authority to that effect, treating Oxygen Gas as
raw material, on being approached by purchasing
dealer. The purchasing dealer has to pay sales tax
@ 3% treating Oxygen Gas as goods mentioned in
Annexure – B and the selling dealer has to merely
13collect and deposit the same as per the certificate
with the Government. Unless it is established
before the prescribed authority, which, in turn,
will decide the nature of the goods, the purchasing
dealer cannot claim payment of sales tax at the
concessional rate of 2% treating Oxygen Gas as
raw material under the garb of the two
notifications dated 9.9.1983 and 3.2.1986.
Therefore, demand notices are perfectly justified.”
13. Mr. S. Ganesh, learned Senior Counsel appearing on behalf of BOC
and Mr. Shyam Divan, learned Senior Counsel appearing on behalf of
TISCO would contend:
i. As oxygen gas is injected to the furnace through lance directly
as would appear from diagram mentioned in Encyclopaedia
Britannica, there cannot be any doubt whatsoever that it is used
as a raw material for the purpose of manufacture of steel.
ii. Basic Oxygen Steelmaking (BOS) being a method of
steelmaking in which carbon-rich molten iron is made into steel
as by blowing oxygen through molten pig iron, the carbon
content of the alloy is lowered and changes the material into
low-carbon steel as would appear from the Wikipedia, the
impugned judgment cannot be sustained.
14
iii. For the purpose of arriving at a finding as to whether a material
used for a finished product would be a raw material or not, it is
not necessary that the item should continue to remain a part of
the finished product as even in a case where it has been burnt
down in the chemical process required for manufacturing the
end product, the same would continue to be a raw material.
iv. Section 13(1)(b) of the Act read with the notification providing
only for the conditions that the assessee must sell raw material
to a registered dealer; and it must be used for
processing/manufacturing of goods meant for sale; BOC,
being the assessee, is not concerned as to whether in the
registration certificate issued to TISCO, oxygen gas has been
shown in Annexure `A’ or Annexure `B’
v. BOC being an assessee having been made liable to pay tax had
the requisite locus standi to maintain the writ application.
vi. Special Leave Petition filed by TISCO questioning the
applicability of industrial policy, the decision of this Court in
Tata Iron & Steel Co. Ltd. vs. State of Jharkhand & ors. [supra]
cannot have any application in the instant case as payment of
15
tax being governed by notification, the principles of res
judicata and/or estoppel would not apply.
14. Mr. B.B. Singh, learned counsel appearing on behalf of the
respondents, on the other hand, would contend:
i. The procedure for claiming special rate of tax on all materials
and/or on raw materials having been provided for in the Act
and/or Rules framed thereunder, the same were required to be
complied with by the assessee for claiming the benefit thereof.
ii. TISCO which is a consumer of oxygen gas having never raised
any contention that the rate of tax in respect of oxygen would
be two per cent and not three per cent, BOC cannot be said to
have any locus standi to plead the case of TISCO as ultimately
the liability would be that of latter.
iii. The procedure laid down in the Act as also the rules framed
thereunder being mandatory in nature, it was obligatory on the
part of the TISCO to comply with requirements of the
provisions thereof scrupulously.
16
iv. TISCO having not challenged the demand made by the
authorities by way of a writ petition, the Special Leave Petition
filed by it is not maintainable.
15. We may, at the outset, place on record that since Mr. B.B. Singh
conceded that the decision of this Court in Tata Iron & Steel Co. Ltd. vs.
State of Jharkhand & ors. [supra] has no application to the issues involved
herein, we are not called upon to deal therewith.
16. BOC admittedly is the manufacturer of oxygen gas. It is a dealer
within the meaning of the provisions of the Act being a supplier of its
product. It, thus, comes within the purview of `dealer’ as contained in
Section 2(e) of the Act as it carries on the business of buying, selling,
supplying or distributing goods for cash or for deferred payment or for
commission, remuneration or other valuable consideration. It is an assessee.
It even as an agent of the State is bound to collect taxes on its behalf and
deposit the same in accordance with law. Non-compliance thereof would
lead to penal actions. Even in the demand made by the Deputy
Commissioner, Commercial Taxes, Jamshedpur Circle, Jamshedpur dated
22.7.2005 it was threatened with proceedings for recovery of the differential
amount unless it produced the evidence of deposit thereof.
17
17. Thus, a demand has been made on BOC. Hence, the opinion of the
High Court that it did not have any locus standi to maintain the writ
application cannot be accepted. It may be true that the consumer of oxygen
gas is TISCO. It was also entitled to purchase the said goods at a
concessional rate. If the material is used for manufacture, the rate of tax is
three per cent whereas if the material is used as raw material for processing
and/or manufacturing of the end product, indisputably, the rate of tax would
be two per cent. Ultimately, BOC may be entitled to recover the differential
amount of tax from TISCO, but, the same by itself would not mean that it is
a busybody. Not only the penal proceedings but also other proceedings
could be initiated against it for non-deposit of the aggregate amount of tax
within the prescribed period. If an order of assessment is passed against the
assessee, the only remedy before it is to prefer an appeal/revision in terms of
the provisions of the Act. Thus, in our opinion, it was a person aggrieved to
maintain a writ application.
18. In the matter of The Trade Mark No. 70,078 of Wright, Crossley, and
Co. (1898) 15 RPC 131, it was stated:
“I think, notwithstanding what was said in that
case, and has been said in other cases dealing with
Trade Marks , that an applicant in order to show
that he is a person aggrieved, must show that in
some possible way he may be damaged or injured
18if the Trade Mark is allowed to stand; and by
`possible’ I mean possible in a practical sense, and
not merely in a fantastic view.
[See Kabushiki Kaisha Toshiba vs. TOSIBA Appliances Co. and Ors.
[2008 (8) SCALE 354]
19. If it is to be held that the assessee is a person aggrieved to question
the validity of the demand raised on it, it will have the locus standi to
maintain a writ petition.
20. The expression “raw material” is not defined. It has to be given its
meaning as is understood in the common parlance of those who deal with
the matter.
Oxygen gas when used would admittedly be burnt up. Would it mean
that it ceases to be a raw material is the question?
In Collector of Central Excise, New Delhi vs. M/s Ballarpur
Industries Ltd. [(1989) 4 SCC 566] on which reliance has been placed upon,
Venkatachaliah, J. (as His Lordship then was) speaking for a bench was
considering a case where the input of sodium sulphate in the manufacture of
paper was held to continue to be a “raw material” by reason of the fact that
19
in the course of the chemical reactions this ingredient is consumed and
burnt up, holding:
“14. The ingredients, used in the chemical
technology of manufacture of any end-product
might comprise, amongst others, of those which
may retain their dominant individual identity and
character throughout the process and also in the
end-product; those which, as a result of interaction
with other chemicals or ingredients, might
themselves undergo chemical or qualitative
changes and in such altered form find themselves
in the end-product; those which, like catalytic
agents, while influencing and accelerating the
chemical reactions, however, may themselves
remain uninfluenced and unaltered and remain
independent of and outside the end-products and
those, as here, which might be burnt-up or
consumed in the chemical reactions. The question
in the present case i whether the ingredients of the
last mentioned class qualify themselves as and are
eligible to be called “Raw-Material” for the end-
product. One of the valid tests, in our opinion,
could be that the ingredient should be so essential
for the chemical processes culminating in the
emergence of the desired end-product, that having
regard to its importance in and indispensability for
the process, it could be said that its very
consumption on burning-up is its quality and value
as raw-materials. In such a case, the relevant test is
not its absence in the end-product, but the
dependence of the end-product for its essential
presence at the delivery end of the process. The
ingredient goes into the making of the end-product
in the sense that without its absence the presence
of the end-product, as such, is rendered
impossible. This quality should coalesce with the
requirement that its utilisation is in the
20manufacturing process as distinct from the
manufacturing apparatus.”
21. Yet again, in the case of Tata Engineering & Locomotive Company
Limited vs. State of Bihar & Anr. [(1994) 6 SCC 479], this Court while
interpreting the provisions of Section 13(1)(b) of the Act itself, held that
batteries, tyres and tubes which are by themselves finished products would
be raw-material when they are fitted in a vehicle, stating:
“What requires consideration, therefore, is
whether items such as tyres, tubes, batteries etc.
purchased by the appellant for use in the
manufacture of vehicles which are otherwise
finished products could avail of concessional rate
of tax at 1%. That would depend on the
construction and understanding of the expression
‘industrial raw-material (inputs)’ used in the
Notification. The word ‘raw-material’ has not been
defined in the Act. It has, therefore, to be
understood in the ordinary and well accepted
connotation of it in the common parlance of the
persons who deal with it. According to dictionary,
it means ‘something which is used for
manufacturing or producing the good’. The
ordinary common sense understanding of it is that
it is something from which another new or distinct
commodity can be produced.”
21
22. Mr. B.B. Singh, however, rightly pointed out that the question as to
whether the oxygen gas is a raw material or not had not been raised before
the Assessing Authority. For the first time, before this Court, a question of
fact has been raised. We cannot, for arriving at such a finding as to whether
the same is correct or not, rely on Wikipedia alone, on which reliance has
been placed.
{See Commissioner of Customs, Bangalore vs. ACER India (P) Ltd. [(2008)
1 SCC 382] and Ponds India Limited vs. Commissioner of Trade Tax,
Lucknow [(2008) 8 SCC 369]}
23. We do not know what are the manufacturing processes involved and
what role oxygen gas has to play in the matter of manufacturing of steel. It
is also not possible for us to base our decision solely on the basis of a
diagram contained in Encyclopaedia Britannica. Whether oxygen gas can be
considered to be a raw material is essentially a question of fact. Evidence is
required to be adduced. Such evidence although may be in possession of
TISCO. In the event, such a question is raised by the assessee, namely,
BOC, the Assessing Authority must go therein. For the purpose of claiming
exemption from payment of tax and/or special rate of tax applicable to a
particular gas or commodity or goods, the assessee itself must bring on
record sufficient materials to show that it comes within the purview of the
22
notification. Both in M/s Ballarpur Industries Ltd (supra) and Tata
Engineering & Locomotive Company Limited [supra], the question as to
whether sodium sulphate and/or batteries, tyres, tubes were raw materials or
not could be determined by this Court as such a question had been raised by
the Assessing Authority.
24. We may, however, must place on record that we do not agree with
Mr. B.B. Singh that the principle that as a procedure has been prescribed in
the statute, the same must be followed or no benefit would be available to
the assessee as is said to have been held by this Court in Narbada Prasad vs.
Chhagan Lal & Ors. [(1969) 1 SCR 499] and in Kunwar Pal Singh (dead) by
L.Rs. etc. etc. vs. State of U.P. & ors. [(2007) 5 SCC 85]. The said
decisions cannot have any application in the facts of the present case.
In Narbada Prasad vs. Chhagan Lal & Ors [supra], this Court was
dealing with a matter concerning Representation of the People Act in regard
to filing of an election petition as in the election petition essential facts as
specified therein was required to be pleaded in the manner laid down
therein.
In Kunwar Pal Singh (dead) by L.Rs. etc. etc. vs. State of U.P. & ors.
[(2007) 5 SCC 85], this Court was dealing with the provisions of the Land
23
Acquisition Act. Keeping in view the fact that the same was barred by
limitation, this Court held:
“The principle is well settled that where any
statutory provision provides a particular manner
for doing a particular act, then, theat thing or act
must be done in accordance with the manner
prescribed therefor in the Act.”
25. For the self same reasons, we are of the opinion, that it is not
necessary to go into the question as to whether a person even if he proves
that he inadvertently did not claim the benefit of a notification would
depend upon the facts and circumstances of each case as no such rule in
absolute terms can be laid down therefor.
26. We may, however, notice that this Court in Share Medical Care vs.
Union of India & ors. [(2007) 4 SCC 573] has opined as under:
“15. From the above decisions, it is clear that
even if an applicant does not claim benefit under a
particular notification at the initial stage, he is not
debarred, prohibited or estopped from claiming
such benefit at a later stage.”
24
27. For the reasons aforementioned, the impugned judgment cannot be
sustained. It is set aside accordingly. The appeals are allowed. The
demand made on the appellant is also set aside. The question, as to whether
the oxygen gas is a raw material for the manufacture of steel or not may be
determined by the Assessing Authority on the basis of the material(s), which
may be brought on record by the parties. All contentions raised by the
parties on the said question shall remain open. The Assessing Authority is
hereby directed to give an opportunity to the parties to adduce evidence in
this behalf. All other consequential proceedings may follow on the basis of
the determination on the said question.
In the facts and circumstances of the case, there shall be no order as
to costs.
……………………………….J.
[S.B. Sinha]
……………………………….J.
[Cyriac Joseph]
New Delhi;
MARCH 05, 2009