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1994 DIGILAW 84 (KER)

Unique Thread Mills v. Sales Tax Officer

1994-02-17

T.L.VISWANATHA IYER

body1994
Judgment :- Petitioner is a small scale industrial unit engaged in the manufacture of sewing thread, out of cotton yarn purchased by it. It has been registered as a small scale industrial unit by proceedings Ext. P1 dated 3-1-1992 of the second respondent, the General Manager of the District Industries Centre, Palakkad. It is stated that the unit was actually set up on 30-11-1990. It is claimed to be an industrial unit set up by women, the entrepreneurs as well as the workers, permanent as well as casual, being only women. It has been recognised as such, and given the benefit of certain subsidy schemes and others, by proceedings Exts. P2 and P3, of the second respondent. 2. Petitioner made an application to the second respondent for the issue of eligibility certificate, to get exemption from payment of sales tax as per the Notification, SRO.No. 969/80 dated 29-9-1980 issued by the Government under S. K) of the Kerala General Sales Tax Act, 1963. Under this notification, Women's Industrial Units, Mini 1 ml us tries and Small Scale Units of Harijans, set upon or after 1-4-1979 are entitled to exemption from payment of lax on the turnover of sale of the goods produced by them, for a period of six years from the date of commencement of the sale of the goods, subject to .the conditions mentioned therein. One of these conditions is that the unit should produce the proceedings of the General Manager, District Industries Centre, declaring its eligibility for exemption from payment of sales tax. Petitioner claimed the benefit of this Notification as a women's Industrial unit and applied to the second respondent for issue of the eligibility certificate. But it was informed by the proceedings Ext. P5 dated 19-4-1993 that the "District Level Committee for granting sales lax exemption" had rejected its case, at the meeting held on 6-3-1993. Petitioner has challenged the proceedings Ext. P5 in this writ petition, mainly on two grounds. Firstly. it is stated that its application should have been dealt with by the second respondent - General Manager of the District Industries Centre - and not by the District Level Committee of which the second respondent is only a member. Secondly it is stated that Ext. P5 was passed without affording the petitioner an opportunity of being heard and that it does not disclose the reason why the petitioner's application was rejected. Secondly it is stated that Ext. P5 was passed without affording the petitioner an opportunity of being heard and that it does not disclose the reason why the petitioner's application was rejected. The power has therefore been exercised arbitrarily. I find force in both the contentions. So far as the second aspect is concerned, admittedly no opportunity was afforded to the petitioner to be heard. Ext.P5 does not also inform the petitioner the reason why its unit is held not entitled to the exemption. The reason has not been explained even by a counter affidavit in this Court. This is not proper. 3. Coming to the first contention, the claim of the petitioner for exemption is under the statutory notification SRO.No. 969/80 dated 29-9-1980 as a Women's Industrial unit. This notification requires production of eligibility certificate from the second respondent as a condition for availing the exemption. This notification has not been superceded, and remains in force, conferring benefits on the three categories of units mentioned therein; viz. Mini Industries, Women's Industrial Units and Small Scale Industrial units set up by Harijans. So long as this notification is in force, the petitioner is entitled to avail the benefits thereof, and to claim exemption, if it satisfies the conditions specified therein. A claim for exemption under this notification should be dealt with only with reference to the terms and conditions contained therein and not otherwise. One of these conditions as slated earlier is production of eligibility certificate from the General Manager of the District Industries Centre. As such the petitioner's application for the eligibility certificate was liable to be dealt with only by the second respondent, and not by the District Level Commit tee, which, it appears sprung into existence for purposes of another notification SRO.No. 499 of 1990. When the notification requires that the eligibility certificate should be issued by a particular authority, the obligation is that of that authority to consider the matter and of none else. He alone shall deal with the application and no other. Therefore, the consideration of the petitioner's claim for exemption by the District Level Committee, which is differently constituted from the second respondent, though lie is also one of its members, but which is a-stranger to SRO.No. 969/80, is illegal. He alone shall deal with the application and no other. Therefore, the consideration of the petitioner's claim for exemption by the District Level Committee, which is differently constituted from the second respondent, though lie is also one of its members, but which is a-stranger to SRO.No. 969/80, is illegal. When the matter was to be dealt with by the second respondent alone, it was improper to have it considered by any Committee of which second respondent is only a member. The decision should be one taken by the second respondent, uninfluenced by the Committee and based strictly on the terms and conditions of SRO.No. 969/80. The decision taken by the District Level Committee, namely Ext. P5, has therefore to be quashed. 4. The learned Government Pleader sought to salvage the decision of the District Level Committee with reference to the exemption notification SRO.No. 499/90 dated 31-3-1990 already alluded to by me, which, according to him, holds the field in supercession of SRO.No. 969/80. I am unable to accept this contention. It is true that SRO.No. 499/90 is a comprehensive notification relating to new small scale industrial units, which are given exemption subject to their satisfying the conditions mentioned in clauses 1 to 8 of the said notification. But this has not superceded the more liberal benefits given to Mini Industries, Women's Industrial units or Small Scale Industrial units setup by Harijans, granted by SRO.No. 969/80. It is significant that while SRO No. 499/90 expressly supercedes another notification issued on 29-9-1980 viz. SRO.No. 968/80, it is silent about SRO.No. 969/80. Evidently the intention was that the; benefit conferred by SRO.No. 969/80 which was targeted to the weaker sections of society should continue to be available to them despite SRO.No. 499/90 which contains more rigorous conditions for availing exemption. The benefit of the notification SRO.No. 969/80 is available, on more liberal terms than those under SRO.No. 499/90 which is hedged in by various conditions including a special definition of 'manufacture'. That SRO. No. 969/80 continues to be operative and is still available is evident from a later notification SRO.No. 440/91 which was issued by the Government on 30-3-1991 modifying the exemption granted to oil mills by SRO No. 969/80 among others. It is therefore clear that while issuing SRO.No. 499/90 among others. That SRO. No. 969/80 continues to be operative and is still available is evident from a later notification SRO.No. 440/91 which was issued by the Government on 30-3-1991 modifying the exemption granted to oil mills by SRO No. 969/80 among others. It is therefore clear that while issuing SRO.No. 499/90 among others. It is therefore clear that while issuing SRO.No. 499/90, it was not the intention of Government to withdraw the benefits conferred by SRO.No. 969/80 or to supercede it. The contention of the learned Government Pleader based on SRO.No. 499/90 is therefore without any force. 5. The second respondent is there fore bound to consider the petitioner's claim only in the light of SRO.No. 969/80 uninfluenced by anything stated in SRO.No. 499/90. 6. Since the claim for exemption under SRO.No. 969/80 has not been considered by the authority specified therein to issue the eligibility certificate viz. the second respondent, but by an extraneous body, viz. the District Level Committee, the second respondent has to be directed to consider the application afresh in the light of the terms and conditions specified in the notification, without being influenced by the decision taken by the District Level Committee. 7. Ext. P5 is therefore quashed. The Original Petition is allowed. The second respondent is directed to reconsider the petitioner's application for exemption in the light of the observations contained in this judgment with opportunity to the petitioner to be heard. He shall pass fresh orders in the matter within 3 period of three months from the dale of receipt of a copy of this order on CMP.No.15454/1993 in O.P.8662/93F.