M/S.Agarwal Oil Refinery Corp. Kanpur vs The Commnr.Of Trade Tax , U.P.,Lucknow

M/s. Agarwal Oil Refinery ... Appellant(s) Corporation, Kanpur

Versus

The Commissioner of Trade Tax, U.P. ... Respondent(s) Lucknow

WITH

Special Leave Petition (Civil) No. 2148 of 2008

Commissioner of Trade Tax, U.P. ... Appellant(s)

Versus

S/s Agarwal Oil Refinery Corporation, Kanpur ... Respondent(s)

J U D G M E N T

GANGULY, J.

1. Heard learned counsel for the parties.

2. This appeal is directed against the judgment and order

passed by the High Court in Trade Tax Revisions in

exercise of its revisional jurisdiction under Section

11 of U.P. Trade Tax Act, 1948(hereinafter referred to

as the "Act"). The order of the Tribunal dated 22nd

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April, 1996 relating to assessment years 1988-89 and

1989-90 was impugned in Revisions before the High

Court.

3. The case of the appellant, who was the dealer is that

it purchased burnt mobil oil and refined the same mobil

oil, but the assessing authority levied tax on the

said burnt mobil oil under Section 3-AAAA of the Act

treating the said oil as "old discarded unserviceable

store".

4. Admittedly, the first appeal, which was filed by the

dealer against such assessment, was allowed and then

again a further appeal was filed by the Commissioner of

Trade Tax against the order of the first appellate

authority. The said appeal by the Commissioner was

also dismissed. Thereupon, the Commissioner, Trade Tax

filed the revision before the High Court and the

revisional Court overturned the concurrent finding of

the statutory authorities. In doing so, the High Court

came to a finding that the present controversy is

covered by a decision of the High Court in the case of

Commissioner of Sales Tax vs. S/S. Industrial

Lubricants reported in 1984 U.P.T.C. 1101.

2 5. Following the said decision, the High Court held that

burnt mobil oil purchased by the dealer, the appellant

herein, is covered under the entry of "old, discarded

and unserviceable store" being purchased from

unregistered dealer and sold in the same condition.

According to the High Court they are liable to be taxed

as such under Section 3-AAAA of the Act during the

years under consideration.

6. Learned counsel for the appellant while assailing the

said finding of the High Court, submitted that the case

is not covered by the decision rendered by the High

Court in the case of S/S. Industrial Lubricants

(supra). The only reasoning on the basis of which the

High Court in S/S Industrial Lubricants (supra) allowed

the revision is that mobil oil after having been used

does not retain the character of mobil oil but it

becomes "old, discarded and unserviceable store" and

that is why the High Court agreed with the revenue that

the burnt mobil oil, being old, discarded or

unserviceable store, is liable to be taxed under the

notifications dated 1.12.1973 and 4.11.1974 @ 3.5% and

4% respectively.

3 7. Reference in this connection may be made to the

provision of Section 11 of the said Act to appreciate

the extent of revisional jurisdiction of High Court in

dealing with the concurrent finding of fact. Section

11 of the said Act is set out below:

11. Revision by High Court in special cases.-(1) Any person aggrieved by an order made under sub-section (4) or sub-

section (5) of Section 10, other than an order under sub-section (2) of that section summarily disposing of the appeal, or by an order passed under Section 22 by the Tribunal, may, within ninety days from the date of service of such order, apply to the High Court for revision of such order on the ground that the case involves any question of law.

(2) Any person aggrieved by an order made by the Revising Authority or an Additional Revising Authority refusing to state the case under this section, as it stood immediately before April 27, 1978, hereinafter referred to as the said date, may, where the limitation for making an application to the High Court under sub- section (4), as it stood immediately before the said date, has not expired, likewise apply for revision to the High Court within a period of ninety days from the said date.

(3) Where an application under sub- section (1) or sub-section (3), as they stood immediately before the said date, was rejected by the Revising Authority or an Additional Revising Authority on the sole ground that the period of one hundred and twenty days for making the reference, as specified in the said sub- section (1), has expired, such applicant may apply for revision of the order made under sub-section (2)of Section 10, to the High Court within sixty days from the 4

said date on the ground that the case involves any question of law.

(4) The application for revision under sub-section (1) shall precisely state the question of law involved in the case, and it shall be competent for the High Court to formulate the question of law or to allow any other question of law to be raised.

(5) Every application for making a reference to the High Court under sub- section (1) or sub-section (3), as they stood immediately before the said date, pending before the Revising Authority or an Additional Revising Authority on the said date, shall stand transferred to the High Court. Every such application upon being so transferred and every application under sub-section (4), as it stood immediately before the said date, pending before the High Court on the said date, shall be deemed to be an application for revision under this Section and disposed of accordingly.

(6) Where the High Court has before the said date, required the Revising Authority or an Additional Revising Authority to state the case and refer it to the High Court under sub-section (4), as it stood immediately before the said date, such authority shall, as soon as may be, make reference accordingly. Every reference so made, and every reference made by such authority before the said date in compliance with the requirement of the High Court under sub- section (4), as it stood before the said date, shall be deemed to be an application for revision under this section and disposed of accordingly.

(6-A)Where the Revising Authority or an Additional Revising Authority has, before the said date, allowed an application under sub-section (1) or sub-section (3), as they stood immediately before the said 5

date, and such authority has not made reference before the said date, it shall, as soon as may be, make reference, to the High Court. Every such reference, and every reference already made by such authority before the said date and pending before the High Court on the said date, shall be deemed to be an application for revision under this section and dispose of accordingly.

(7) Where an application under this section is pending, the High Court may, on an application in that behalf, stay recovery of any disputed amount of tax, fee or penalty payable, or refund of any amount due, under the order sought to be revised:

Provided that no order for the stay of recovery of such disputed amount shall remain in force for more than thirty days unless the applicant furnishes adequate security to the satisfaction of the Assessing Authority concerned.

(8) The High Court shall, after hearing the parties to the revision, decide the question of law involved therein, and where as a result of such decision, the amount of tax, fee or penalty is required to be determined afresh, the High Court may send a copy of the decision to the Tribunal for fresh determination of the amount, and the Tribunal shall thereupon pass such orders as are necessary to dispose of the case in conformity with the said decision.

(8-A) All applications for revision or orders passed under Section 10 in appeals arising out of the same cause of action in respect of the same assessment year shall be heard and decided together:

Provided that where any one or more of such applications have been heard and decided earlier, if the High Court, while hearing the remaining applications, 6

considers that the earlier decision may be a legal impediment in giving relief in such remaining application, it may recall such earlier decisions and may thereafter proceed to hear and decide all the applications together.

(9) The provisions of Section 5 of the Limitation Act, 1963, shall, mutatis mutandis, apply to every application, for revision under this section.

Explanation.- For the purpose of this section, the expression "any person"

includes the Commissioner and the State Government."

8. It is made clear from the structure of Section 11 that

normally the High Court under revision does not

interfere with concurrent findings of fact by the lower

authority, unless the case involves any question of

law.

9. Traditionally in exercise of revisional jurisdiction,

High Court does not interfere with concurrent finding

of fact, unless the findings recorded by the lower

authorities are perverse or based on an apparently

erroneous principles which are contrary to law or where

the finding of the lower authority was arrived at by a

flagrant abuse of the judicial process or it brings

about a gross failure of justice. In this case none of

these principles are attracted.

7 10. In this connection, we may refer to the relevant

provision of the Act to find out the real controversy

in issue. Section 3AAAA of the Act which has come up

for consideration in this case is set out hereinbelow:

"Section 3-AAAA- Liability to tax on purchase of goods in certain circumstances-Subject to the provision of Section 3, every dealer who purchases any goods liable to tax under this Act-

(a) from any registered dealer in circumstances in which no tax is payable by such registered dealer, shall be liable to pay tax on the purchase price of such goods at the same rate at which, but for such circumstances, tax would have been payable on the sale of such goods;

(b) from any person other than a registered dealer whether or not tax is payable by such person, shall be liable to pay tax on the purchase price of such goods at the same rate at which tax is payable on the sale of such goods;

Provided that no tax shall be leviable on the purchase price of such goods in the circumstances mentioned in clauses (a) and (b), if -

(i) such goods purchased from a registered dealer have already been subjected to tax or may be subjected to tax under this Act;

(ii) tax has already been paid in respect of such goods purchased from any person other than a registered dealer;

(iii) the purchasing dealer resells such goods within the State or in the course of inter-State trade or commerce or exports out of the territory of India, in

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the same form and condition in which he had purchased them;

(iv) such goods are liable to be exempted under Section 4-A of the Act".

11. The relevant entries which are covered in this

controversy as per notification dated 7th September,

1981 and 31st May, 1985 are as under:

S.No. Description of goods Point of Tax Rate of Tax

x x x x

31. Oil of all kinds, other M or I 4 per than those covered by any cent other entry of this list or by any other notification issued under the Act

32. Old, discarded, Sale to consumer 8 per unserviceable or obsolete cent machinery, stores or vehicles including waste products except cinder, coal ash and such items as are included in any other notification issued under the Act.

12. In the instant case, the Tribunal as the second

appellate forum is the last fact finding authority.

From the admitted facts recorded by the Tribunal it

appears that the appellant-the dealer manufactures

refined mobil oil from the raw material, i.e., the

burnt mobil oil which it purchases and then sells a

virtually new item in the market. In 1988-89 and 1989-

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90 the assessments were made under Rule 41(7) of the

U.P. Trade Tax Rules, but the said assessment has been

opened and a fresh assessment has been made. Aggrieved

by the same, the dealer preferred first appeal before

the A.C.(J) who allowed both the appeals by an order

dated 26.5.1995 holding therein that the dealer is not

liable to pay and quashed the imposition of tax upon

dealer for the relevant assessment years. Aggrieved

thereby, the revenue preferred a second appeal before

the Tribunal. Before the said appellate authority, the

revenue urged that the burnt mobil oil which is

purchased by the assessee who was the manufacturer of

refined oil is taxable at the point of sale to the

consumer as it comes under the category of old and

discarded material. The Tribunal did not accept the

said contention by examining the facts and the records

of the case. The Tribunal came to the following

finding:

"...it is undisputed that the burnt mobil oil on which the tax has been imposed, has been purchased by the assessee respondent from unregistered dealer like kabarie and hawkers in retail manner. However, in the like manner the old PVC shoes and chappals purchased by the dealer who converted into granules and sold them in the market, they have not been treated under the category of 'old discarded and unserviceable stores' as held by the case laws cited by the assessee's 1

counsel Sri S Rais, Advocate. In our opinion, the case of burnt mobil oil is similar to the case of PVC shoes etc. which are purchased by dealer for manufacture of plastic granules etc. by purchasing them from kabaris and hawkers etc. in retail manner."

13. The Tribunal also came to a finding that the refined

mobil oil is manufactured by the dealer from burnt

mobil oil. The item is taxable at the point of

manufacturer and is not liable to be taxed at the point

of sale to the consumer under Section 3-AAAA of the

Act.

14. We are of the opinion that unless the High Court, as a

revisional authority, finds that those factual

conclusions by both the appellate authorities are

perverse, it cannot overturn the same by relying on a

judgment which is factually distinguishable. In the

judgment on which the High Court relied, there is no

finding by the Tribunal, the last fact-finding

authority, on the nature of the goods, which was the

subject matter of the disputed transaction. The case on

which the High Court relied, namely, in the case of

S/S. Industrial Lubricants (supra), is not the case of

a dealer who after purchasing burnt mobil oil,

manufactures refined mobil oil from that raw material.

1 But the Tribunal in the instant case has found on facts

that the appellant herein manufactured refined mobil

oil from the burnt mobil oil. Therefore, there is

substantial factual difference between the present case

and the case on which the High Court relied while

dealing with the revision proceedings before it. We are

of the view that the High Court was not correct in

relying on a decision, which is factually

distinguishable.

15. For the reasons afore-stated, we cannot sustain the

order of the High Court. The order of the High Court

is quashed.

16. We remand the matter to the High Court and request the

High Court to decide the revisions on the facts of the

present case on the principle of revisional

jurisdiction indicated hereinabove. We hope that the

High Court will come to a reasoned conclusion in the

facts and circumstances of the case.

17. We further make it clear that we have not expressed any

opinion on the merits of the finding recorded by the

Tribunal since the High Court is to re-examine the same

afresh. With these observations, the appeal is allowed

and the matter is remanded to the High Court for a 1

fresh decision of the revision proceedings on the lines

indicated above.

18. In the facts of the case, there will be no order as to

costs.

S.L.P.(C) NO. 2148 OF 2008

Delay condoned.

We do not find any merit in the special leave petition,

which is accordingly dismissed.

......................J [D.K. JAIN]

.......................J [ASOK KUMAR GANGULY] NEW DELHI, August 10, 2011

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