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2011 DIGILAW 1033 (JHR)

Saumya Mining Ltd. v. State of Jharkhand

2011-11-24

P.P.BHATT, PRAKASH TATIA

body2011
ORDER By the Court . – Admit. 2. Heard learned counsel for the parties on the Stay petition (LA. No. 3294 of 2011), 3. In view of the fact that subsequent to the rejection of the writ petition, the department has issued a. notice dated 24.03.2011 to show cause why penalty may, not be imposed against the petitioner in view of violation of Section 10 (b) and 10 (d) of the Act of 1956. 4. Learned counsel for the petitioner submitted that petitioner is engaged in mining operation and he got the mining contract for specific material i.e. Uranium and he obtained the certificate of registration from the State of Jharkhand and he is, therefore, a registered dealer and in certificate of registration, there is mention of the article "equipment" and "machinery". Controverting, learned counsel for the respondents submitted that the petitioner was entitled to obtain Form 'C' from the State Sales Tax Authorities in view of the provisions of Sections 8(1). 8(3) and 8 (4) dealing with Rule 12(1) and Rule 13. wherein it is provided that every dealer, who in the course of inter-State trade or commerce, sells to a registered dealer goods of the description referred to in sub-section (3) shall be liable to pay tax under this Act. which shall be 2 % and according to the learned counsel for the petitioner as per sub• section (3) of Section 8 of the Act the goods are the goods which are of the class or classes, specified in the certificate of registration. Petitioner's certificate contains the specification of the commodities which petitioner is purchasing falls in the category of "equipment" or at least in "machinery". So far as purchase of the ,goods for re-sell is concerned, this is not the case of the petitioner but the petitioner is engaged in mining operation for which also subject to any rule made by the Central Government, the petitioner will be entitled to obtain 'C' form. The Central Government has framed Rules and in Rule 13. it is clearly provided that the goods referred to in Clause (b) of sub- section (3) of section which a registered dealer may purchase, shall be goods intended for use by him in mining. Therefore the petitioner is fulfilling all the conditions and is entitled to issuance of 'C' form. 5. it is clearly provided that the goods referred to in Clause (b) of sub- section (3) of section which a registered dealer may purchase, shall be goods intended for use by him in mining. Therefore the petitioner is fulfilling all the conditions and is entitled to issuance of 'C' form. 5. Learned counsel for the respondents vehemently submitted that firstly the petitioner is not engaged in the mining operation and not taking the mining work and he is only a contractor has been awarded contract work of removal of overburden and incidental are, therefore, the petitioner is engaged in mining and not covered under Rule 13 of the Act. It is also submitted that the machinery cannot include the earth moving equipment which is a specific entry as held by lower Appellate Authority with the help of the Act which was prevailing in the State of Bihar. 6. We considered the submissions of the learned counsel for the parties and we are of the considered opinion that the proceedings initiated by notice dated 24.8.2011 required to be stayed. Therefore., the proceedings initiated by the said notice dated 24.8.2011 shall remain' stayed till the disposal of this writ petition. 7. The LA. No. 3294 of 2011 is accordingly allowed. 8. List this case for final hearing in the second week of January. 2012. Ordered accordingly.