M/S Boc
India Ltd. Vs. State of Jharkhand & Ors. [2009] INSC 487 (5 March 2009)
Judgment
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 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
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 there under, 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.
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 4 within 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 7
VIC. 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 8 rate 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.
9.
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 11 tax 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 13 collect 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.
15.
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.
16.
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.
17.
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.
18.
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 18 if 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 20 manufacturing 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."
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, the at 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."
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;
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