ICI INDIA LTD. AND ANR. v. STATE OF ORISSA AND ORS

Citation: [2007] 10 S.C.R. 433

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, TARUN CHATTERJEE

Case summary

ICI INDIA LTD. AND ANR. v. STATE OF ORISSA AND ORS.pdf

Judgment text

/ / ICI INDIA LTD. AND ANR. v. STATE OF ORISSA AND ORS. SEPTEMBER 28. , 2007 (DR. ARIJIT PASAYAT AND TARUN CHATTERJEE, JJ. ] ,,_ -- Orissa Sales Tax Act, 1947-s. 5(1), proviso 5-Differential tax, payment of-When attracted-Manufacturerpurchasingraw materials for manufacture/processing of 'Bulk Premix' for sa/e. ,.. -Furnishing declaration to the effect in Form No. IV by paying concessional rate oftax @ 40/o-However, 'Bulk Premix' transferred to its other units in State of Orissa and outside the State for manufacture of 'Bulk Explosive '-Held: Proviso 5 to s. 5(1) attracted-There was violation ofthe terms ofdeclaration in Form IVsince goods manufacturedwere ~ not sold-Thus, manufacturer liable to pay differential taxpayable on .. raw materialspurchasedat concessional rate byfurnishing Form JV- Order ofSales Tax Authorities as upheld by High Court calls. for no interference-Orissa Sales Tax Rules, 1947.

Appellant, manufacture and sale of'Bulk Explosives', set up its bulk emulsion premix manufacture unit at Rourkela. Itwas granted certificate ofregistration which indicated that the appellant required . ~ amon~tothers,Ammonium Nitrate to be usedfor manufacture/process of'BulkPremix' forsale. Appellantpurchasedthe principalraw material "AmmoniumNitrateLiquor" for manufacture/process ofBulkPremix at its Rourkela unit for saleand gave declaration in Form No. IV to avail the concessional rate oftax@4%. The 'BulkPremix' so manufactured is used for manufacture of'BulkExplosive' which is not manufactured in the appellant's plant Appellanttransferred the 'BulkPremix' to its other branches in the State of Orissa and also outside the State for manufacture of 'Bulk Explosive'. The Sales Tax Officer passed Assessment Order for assessment year 1997-98 and 1998-99. It held that the appellants had contravened the declaration given in Form IV while pure.

basing the raw material to avail concessional rate as provided >in the Orissa Sales Tax Act, 1947and the Orissa Sales Tax Rules, 1947 and demanded differential tax as provided in the 5th Proviso to Section 5(1) ofthe Act on the raw material purchased. Assistant Commissioner ofSales Tax upheld the order. Aggrieved, appellant filed writ petitions which were dismissed. Hence the present appeal. Dismissing the appeals, the Court HELD: 1. 1. In the instant case, the raw material-'Ammonium Nitrate Liquor' has been used within the State ofOrissa by the appellant in the manufacture of goods namely 'Bulk Premix'. But the 'Bulk Premix' so manufactured gets further processed for the manufacture ofthe final product i. e. 'Bulk Explosives' which undisputedlywas for sale and is actually sold. [Para 7] [438-E, G] 1. 2. The 5th proviso to s. 5(1) of the Orissa Sales Tax Act, 1947 indicates the purpose for which the goods are intended to be used i. e. for manufacture/processingofgoods for sale.

The use ofthe expression 'withinthe State ofOrissa' in 5th proviso makes the position clearthat the raw materials purchased must be used for manufacture ofgoods in the State of Orissa for sale. In the instant case, the raw material purchased for manufactureof'Bulk Premix', has not been used for any other purpose. Butthe manufactured producti. e. 'Bulk Premix' has not been sold but has been transferred to other branches ofthe appellant situated inside as well as outside the State ofOrissa. The Certificate of Registration indicates that the raw materials purchased would be utilized in the manufacture of'Bulk Premix'. There is also a mention about 'machinery for explosive'. Though appellant contended that the same is the mistakeoffact and the only thing which is intended to be produced at the. Unit is 'Bulk Premix', and instead ofselling the manufactured goods, it is transferred to other places forfurther manufacture of'Bulk Explosive'.

The transfer clearly fell within the expression 'any other purpose' mentioned iI1the5th proviso to Section 5(1) ofthe Act. As the goods manufactured havenot been sold but have been transferred, there is a violation ofthe terms ofthe declaration and the assessee has been rightly held to be liable for payment ofthe differential tax payable on ,_ the raw materials purchased at concessional rate oftax@4% paid by furnishing FormIV. Therefore, High Court'simpugned judgment does notwarrant any interference. [Paras 10, 14and15] (440-A,B; 441-C-G; 442-A] Mis. PolestarElectronic (Pvt. ) Ltd v. AdditionalCommissioner, Sales TaxandAnr. , [1978] 1SCC636;JK CottonSpinningandWeavingMills Co. Ltd. v. S. TO. , Kanpur, and Anr. , (1965) (16) STC 563 and Indian '>- Aluminium Co. Ltd. v. S. T 0. , (1993) 90 STC 410, referred to. ~ CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1193- 1194 of 2002. From the Judgment and Order dated 9. 10. 2001 ofthe High Court of Orissa at Cuttack in O. J. C. S. Nos.

16928/1998 and 1550/2000. . Debi Prasad Pal, Shibashish Misra, Priya Hingorani, Aman Hingorani and Ananda Sen (for MIS. Hingorani & Associates) forthe Appellants. .. __ .. G. Ramakrishna Prasad for the Respondents. The Judgment ofthe Court was delivered by DR. ARIJIT PASAYAT, J. I. These two appeals assail correctness ofthe judgment rendered by a Division Bench ofthe Orissa High Court dismissing the writ petitions filed by the appellants. The two writ petitions i. e. OJC 16928 of 1998 and 1500 of 2000 were filed questioning correctness ofthe views expressed by the Sales Tax Authorities ~that the appellants had contravened the declaration given in Form IV to avail concessional rate as provided in the Orissa Sales Tax Act, 1947 (in short the 'Act') and the Orissa Sales Tax Rules, 1947 (in short the 'Rules'). In the first writ petition challenge was to the appellate order passed by the Assistant Commissioner of Sales Tax confirming the assessment made by the assessing officer for the.

assessment year 1997- ·~ 98, whereas in the second writ petition challenge was to the assessment order passed by the Sales Tax Officer for the assessment year 1998-99. 2. Background facts sans unnecessary details are as follows:- The ICI India Ltd. (hereinafter referred to as "the assessee") is company incorporated under the Companies Act, 1956 having its registered office at ICI House, 34, Chowranghee Road, Calcutta. It is engaged, inter-alia, in the business of manufacture and sale of"Bulk Explosives". For the purpose ofcarrying on business at Rourkela in the State of Orissa, the appellant has set up an industry on Plot No. 77, Industrial Estate, Kalunga, and is registered as a dealer with the Sales Tax officer, Rourkela-11 Circle, Panpcish (Respondent No. 3). The certificate ofregistration granted under Section 9 ofthe Act indicates that the appellant requires, amongst others, "Ammonium Nitrate" to be used for manufacture/processing of"Bulk Premix" for sale.

The appellant had set up and commissi01;1ed its third bulk emulsion premix manufacture unit at Rourkela in April, 1997. The principal rnw material for manufacture of "Bulk Premix" is "Ammonium Nitrate Liquor". The principal supplier of the said raw material is the Rourkela Steel Plant ofthe Steel Authority of India (in short the 'SAIL') from whom the appellant purchases the same. The other raw materials are either purchased locally or purchased centrally at Gomia in Bihar and the stock is transferred to its Rourkela Plant. At the Rourkela Plant, all the raw materials. are utilized for manufacture of Emulsion Premix or Bulk Premix, which is an excisable product. For . purchase ofraw material from the Rourke:la Steel Plant, the appellant gives declaration in Form No. IV to avail the concessional rate oftax@4%.

It is an admitted case ofthe parties that the "Bulk Premix" so manufactured at Rourkela is not sold as such because it is an intermediary product which is used for manufacture of"Bulk Explosive". This "Bulk Explosive" is not manufactured in the Rourkela plant ofth1e appellant. So the "Bulk Premix" is sent to its other branches at Angul (Talcher) and Belpahar in the State ofOrissa, for which the appellant has obtained Sales Tax Registration, wherein the raw material has been mentitoned as "Bulk Premix", while the finished product is mentioned as "Bulk Explosive". Apart from sending the "Bulk Premix" to its different branches in the State of Orissa, the appellant also transfers/sells the goods. outside the State. 3. For manufacture of"Bulk Explosive", the "Bulk Premix" is carried in special tankers dedicated for such purpose to the actual blasting site from the onsite support plants where thre ingredient i. e.

"Bulk Premix" and other chemicals are mixed in proportion commensurate with the character ,_ ofthe rock and/or other substances to be blasted. Such mixing in right proportion takes places at the site ofblasting and the resultant manufacture being explosive is discharged into the bore holes at the mine bench. It is at this stage that the "Bulk Premix" when mixed with the other chemicals and discharged into bore holes becomes explosives and at that stage the sale ofexplosives takes place and the sales tax and excise duty are paid on such sale of"Bulk Explosive". 4. In the assessment order for the year 1998-99, the assessing officer did not find any violation ofthe declaration given by the appellant while purchasing "Ammonium Nitrate", though the "Bulk Premix" has been transferred from Rourkela plant to Talcher and Belpahar, i. e. , inside the State of Orissa, and did not make any addition for the same.

But, for goods sent outside the State of Orissa, the assessing officer was ofthe view that the appellant had contravened the provisions ofthe 5th proviso to Section 5(1) ofthe Act by furnishing wrong declaration as the goods .. _ manufactured were not sold. For the year 1997-98, however, all transfers •'. of"Bulk Premix", whether inside or outside the State ofOrissa, were disallowed and it was held that the appellant has contravened the declaration given in Form IV while purchasing the raw material. This order was confirmed by the Assistant Commissioner ofSales Tax. 5. Considering the rival stands taken before it, the High Court noted that the only question that arose for consideration was whether the appellant who purchased raw materials for manufacture/processing of "Bulk Premix" for sale on the strength ofdeclaration can be said to have violated the declaration when the "Bulk Premix" was transferred to its different branches for manufacture of"Bulk Explosive".

The High Court held that the Sales Tax Authorities werejustified in demanding differential tax as provided in the 5th Proviso to Section 5(1) ofthe Act on the raw material (Ammonium Nitrate) purchased by furnishing declaration in Form IV by paying concessional tax at the rate of4%. The writ applications were accordingly dismissed. 6. In support ofthe appeals it is stated by Dr. D. P. Pal, learned Senior Advocate that the only question that arises for consideration is whether the raw material i. e. "AmmoniumNitrate Liquor" was used for the purpose ' -~ \ ofmanufacturing "Bulk Premix" in the Rourkela factory? Such "Bulk ,'>-· Premix" is undisputedly the raw material for manufacturing used in thei manufacture of"Bulk explosive". Such products were for sale and were actually sold. Even ifthe "Bulk Premix" gets transferred outside the State ofOrissa for being further used in the manufacture ofa final product i. e.

"Bulk Explosive", there is no contravention ofthe 5th proviso to Section 5(1) ofthe Act. Raw materials purchased at concessional rate oftax would be liable to tax at the full rate prevailing on the following conditions -~ .. ,. satisfied: (1Y The dealer must be a registered dealer. (2) The goods or class ofgoods must be specified in its certificate ofregistration as being intended for use within the State·of Orissa by him in the manufacture/processing ofgoods for sale. (3) The goods so manufactured must be sold. (4) The purchasing dealer must fornish a declaration in Form IV. ~ . " In case the goods so purchased are used for any other purpose or utilized outside the State of Orissa, the dealer shall pay the differential tax on the goods. 7. It was pointed out that there is no dispute or controversy that the raw material i. e. "Ammonium Nitrate Liquor" has been used within the State ofOrissa by the appellant in the manufacture ofgoods namely "Bulk Premix".

But the "Bulk Premix" so manufactured gets further processed h, for the manufacture ofthe final product i. e. "Bulk Explosives" which undisputedly was for sale and is actually sold. It is submitted that law does not require that the final products which are for sale should to be sold within the State of Orissa. Reliance is placed on Paragraphs 11 and 18 of Mis. Polestar Electronic (Pvt. ) Ltd. v. Additional Commissioner, Sales Tax and Anr. , (1978] 1 SCC 636 to support the argument. )'-· Reference is also made to JK. Cotton Spinning & Weaving Mills Co. Ltd v. STO. , Kanpur, andAnr. , (1965) 16 STC 563 which related to meaning ofexpression "in manufacture ofgoods" appearing in Section 8(3) (b) ofthe Central Sales Tax Act.. 1956 (in short the 'Central Act') which, according to appellant is in pari materia with the 5th proviso to Section 5(1) ofthe Act. Reference is also made to decision ofthe Orissa High Court in Indian Aluminium Co. Ltd. v. S. TO. , (1993) 90 STC 410 for this purpose.

It is, therefore, submitted that so long as the goods, . that is, the intermediary products are manufactured within the State of Orissa but are used in the manufacture offinal product either in the State ofOrissa or outside, the raw materials have been used for manufacture B of goods for sale, and there is no contravention of the 5th proviso to Section 5(1) ofthe Act. 8. Per contra, learned counsel for the respondent-State and its functionaries submitted that the factual position as noticed by the Authorities and the High Court clearly shows that the 5th proviso to Section 5(1) is clearly attracted. The said provision pertains to tax concession. When the claim concessions are under consideration, these provisions have to be construed strictly. The appellant is in the business ofmanufacture and sale of"Bulk Explosive", which has several uses in Orissa. "Bulk Premix" is used as raw material for manufacture and sale of"Bulk Explosive" as per the Certificate ofRegistration.

However, so far as the Rourkela unit is concerned, the company has different Certificate ofRegistration and it is admitted that the appellant manufactures only "Bulk Premix" in this unit. In the Certificate ofRegistration it is mentioned that raw materials purchased would be used in the manufacture of "Bulk Premix". Though certificate also mentioned about "machineries for explosives" before the High Court it was conceded that it is a mistake and assessee does not manufacture "Bulk Explosives" in the Rourkela Unit Thus the appellant purchases raw materials mainly from SAIL in Orissa and other raw materials in Bihar and had manufactured "Bulk Premix" in their Rourkela Unit. Undisputedly, appellant gave declaration in Form IV for concessional rate oftax i. e. 4%. Admittedly, the appellant did not sell "Bulk Premix" manufactured by it and the same is used after stock transfer for manufacture of"Bulk Explosive" in other units in Orissa and places outside the State. 9.

It is submitted by the revenue that the stress is on use ofthe goods purchased in the manufacture/process of"goods for sale". By not selling "Bulk Premix" and instead effecting stock transfer for manufacturing of "Bulk Explosives" for sale, there is clear violation ofthe first limb ofthe \ --\ ' 5th proviso to Section 5(1) and therefore second limb ofthe proviso is attracted making the assessee liable to pay the differential tax on goods. I0. The First proviso to Section 5(I) is conceptually different from Section 8(3) ofthe Central Act. While the Act used the expression ''within the State ofOrissa" the Central Act does not have any such restriction. This is inevitable because in respect ofthe Central Act, the sale has to be outside the State. The use ofthe expression "within the State ofOrissa" in 5th proviso makes the position clear that the raw materials purchased must be used for manufacture ofgoods in the State ofOrissa for sale. 11. Entry serial No.

48 ofList -C, is quoted below :- "Goods ofthe class or classes specified in the certificates of registration ofthe registered dealler purchasing the goods as heir'* intended for use by him in the manufact\ll'e or processing or packing ofgoods for sale or in mining or in the generation or distribution ofelectricity or any other form ofpower subject to the production of tme declaration by the purchasing registered dealer or ~s authorized agent in Form IV. " 12. The 5th proviso to section 5(1) ofthe Act reads as under :- "5.

Rate oftax- (1) The tax payable by a dealer under this Act shall be levied on his taxable turnover at such rate, not exceeding twenty five percent, and subject to such conditions as the State Government may, from time to time, by notification specify: xx xxxx Provided further that where a registered dealer purchases goods of the class or classes specified in his Certificate of Registration as being intendred for 'use within the State ofOrissa by him in the manufacture or processing ofgoods for sale or in mining or in generation or distribution ofelectricity or any other form of power at concessional rate of tax or free of tax after furnishing a declaration in the prescribed form, but utiliz. es the same for any other purpose or outside the State ofOrissa, he shall pay the difference in tax or the tax, as the case may be, payable had he not furnished the declaration. " 13. Form IV, which is appended to the list of taxable goods, is in the following language:- "I/we............

hereby declare that the goods purchased by me/ us in cash Memo/Bill No ......... dated the ......... from......... shall be used in the manufacture/processing or packing ofgoods for sale in mining/generation or distribution of electricity or any other form ofpower. Dealer/Authorised Agent. " 14. The 5th proviso to Section 5(1) indicates the purpose for which the goods are intended to be used i. e. for manufacture/processing ofgoods for sale. In the instant case the raw material purchased for manufacture of "Bulk Premix", has not been used for any other purpose. But the D manufactured product i. e. "Bulk Premix" has not been sold but has been transferred to other branches ofthe appellant situated inside as well as outside the State ofOrissa. 15. As noted above the Certificate ofRegistration indicates that the raw materials purchased would be utilized in the manufacture of"Bulk Premix". There is also a mention about "machinery for explosive".

Though it was contended by the appellant that the same is the mistake of fact and the only thing which is intended to be produced at Rourkela is "Bulk Premix", it is conceded that the "Bulk Premix" manufactured had not been sold but has been sent to different places for manufacture ofother goods i. e. "Bulk Explosive". The position is factually different from that under consideration in Indian Aluminum's case (supra) as the appellants instead ofselling the manufactured goods transferred it to other places for further manufacture of"Bulk Explosive". The transfer clearly falls within the expression "any other purpose" mentioned in the 5th proviso to Section 5(1) ofthe Act. As the goods manufactured have not been sold but have been transferred, there is a violation ofthe terms ofthe declaration and the assessee has been rightly held to be liable for payment of the differential tax payable on the raw materials purchased at concessional \ \ rate oftax by 4% paid by furnishing Form IV.

High Court's impugned judgment, therefore, does not warrant any interference. It may be noted that the High Court made some observation about whatwould have been the consequence had there been mention offinal productin the Certificate ofRegistration ofthe appellant. 16. Learned counsel for the respondent-State submitted that the observations of High Court are erroneous. Though learned counsel for the appellants also referred to the observation to support their stand, we make it clear, that we have not expressed any opinion about the correctness ofthe said view as that does not really fall for determination in the present case. 17. The appeals fail and are accordingly dismissed. N. J. Appeals dismissed.