Heard learned counsel for the parties.
By way of this writ petition, the petitioner has challenged the circular dated 17.08.2017 (Annexure-1) issued by the State Government whereby the persons who are dealing with HSD has been directed to pay GST. The issue was before different High Courts, more particularly, learned counsel for the petitioner has relied upon the decision of Punjab and Haryana High Court in the case of Carpo Power Limited –v- State of Haryana and Ors., which was disposed of on 28.03.2018, more particularly paragraphs-26, 27 and 28, reads as under:
“xxx xxx xxx
26. The provisions of Section 8 of the CST Act, Rule 12 of CST (R&T) Rules and declaration Form C have not undergone any amendment after the implementation of the GST laws. There cannot be any occasion to restrict the usage of `C’ Form only for the purposes of re-sale of the six items mentioned in the amended definition of `goods’ in Section 2 (d) of the CST Act. The purchase of the said goods for purposes of re-sale, use in the manufacture or processing of goods for sale, in the tele-communications network or mining or in generation or distribution of electricity or any other form of power would qualify the purchaser for registration under Section 7 (2) of the CST Act.
Section 7 (2) does not stipulate that only a dealer liable to pay tax under the sales tax law of the appropriate State in respect of any particular goods is entitled to apply for registration. Nor does section 7 (2) stipulate that an application for registration can be made or `C’ Form can be issued only in respect of the sale of the same goods prescribed in the course of an inter-state sale. A dealer liable to pay tax under the sales tax law of the appropriate State in respect of any goods would be covered by Section 7 (2) of the Act.
27. There is another aspect of the matter that the registration certificate given to the petitioner under the CST Act till date has not been cancelled. As per Section 7 (4) of the CST Act, the registration certificate granted has to be amended or cancelled.
The said provisions have not been invoked.
28. In these circumstances, the writ petition is allowed. It is held that the respondents are liable to issue `C’ Forms in respect of the natural gas purchased by the petitioner from the Oil Companies in Gujarat and used in the generation or distribution of electricity at its power plants in Haryana. In the event of the petitioner having had to pay the oil companies any amount on account of the first respondent’s wrongful refusal to issue `C’ Forms the petitioner shall be entitled to refund and/or adjustment of the same from the concerned authorities who collected the excess tax through the oil companies or otherwise. The concerned authorities shall process such a claim within twelve weeks of the same being made by the petitioner in writing and the petitioner furnishing the requisite documents/form.”
The aforesaid decision of Punjab and Haryana High Court was the subject matter of S.L.P. to Appeal (C) No. 20572 of 2018 before the Hon’ble Supreme Court, which came to be dismissed on 13.08.2018 after which the Central Government has come out with the clarification by their letter dated 01.11.2018, which reads as under:-
Government of India
Ministry of Finance
Department of Revenue
State Taxes Section.
North Block, New Delhi
Dated the 1st November, 2018.
The Commissioner of Commercial Tax
of All States/Union Territories.
Subject:- Regarding definition of goods in subsection (3)(b) of section 8 of the Central Sales Tax Act, 1956 and issuance of Form-C.
I am directed to refer to OM dated 07.11.2017 (copy enclosed) regarding clarification of definition of goods in sub-section (3)(b) of section 8 of the Central Sales Tax Act, 1956 and to say that Hon’ble Punjab and Haryana High Court has considered the issue of ‘C’ Forms in respect of Natural Gas purchased by the petitioner in one state and used in another state vide judgment dated 28.03.2018 in CWP No.2943/2017 filed by Carpo Powers Limited which has been upheld by Hon’ble Supreme Court vide its Order dated 13.08.2018 in SLP No. 20572/2018 in this matter.
2. This matter has been examined in Department of Revenue and it has been decided to forward copy of aforesaid judgment dated 28.03.2018 (copy enclosed) of Hon’ble High Court of Punjab and Haryana and Order dated 13.08.2018 (copy enclosed) of Hon’ble Supreme Court for compliance in the respective States.
Encl: As above.
Under Secretary (Sales Tax Section –II)
In that view of the matter, learned counsel for the petitioner contended that now the issue is no more res integra.
The law is now settled. However, it has also been endeavoured that all issues or activities which are covered under Section 18 of CGST Act were also required to be considered in view of the circular issued by the State Government and non-consideration of which is contrary to the decisions delivered by the following five respective High Courts:
(i) Capro Power Limited Vs. The State of Haryana & Ors reported in 2018-VIL-154-P&H:-
In this case, after amendment of the definition “goods” in Central Sales Tax Act, 1956, State of Haryana refused to issue Form C in respect of natural gas purchased by the petitioner in the course of the interstate trade and commerce for generation of electricity on the ground that after implementation of CGST Act, 2017, the petitioner is not entitled to make inter-state purchase of natural gas on the strength of Form C. The Punjab & Haryana High Court after considering various provisions of the CST Act, 1956 as well as CGST Act, 2017 has held that respondents are liable to issue Form-C in respect of the natural gas purchased by the petitioner from oil companies in Gujrat and used in the generation or distribution of electricity at its power plant in Haryana.
(ii) Shree Raipur Cement Plant Vs. State of Chhattisgarh & Ors reported in 2018-VIL-225-CHG:-
In this case, the with effect from 01.07.2017, from the date of implementation of CGST Act, 2017, C Forms was not being issued to the assesses by showing message as ED9 i.e. invoice date should be less than 1st July, 2017.
Thereafter, Petitioner being manufacturer of cement approached before Chhattisgarh High court and High Court of Chattisgarh by placing reliance upon the reliance upon the decision of Hon’ble Punjab & Haryana High Court delivered in Capro Power Case (supra) was pleased to hold that Respondents are liable to issue Form C to the petitioner and directed respondents to issue Form C in respect of HSD to be purchased by the petitioner and used in the course of manufacturing of cement. Even, respondents were directed to remove error on their official website and entertain applications, submitted on-line seeking issuance of Form C.
(iii) Hindustan Zinc Limited Vs. The State of Rajasthan & Ors. Reported in 2018-VIL-233-RAJ:– Similarly, in this case, petitioner being engaged in mining of Zinc was refused to issue Form C with respect to inter-state purchase of HSD for running of plant & machinery at mines of the petitioner. The Hon’ble Rajasthan High Court in terms of the decision of Capro power Limited (Supra) has pleased to held that respondents are liable to issue C forms in respect of the HSD procured for mining purpose through inter-state trade.
(iv) M/s. The Ramco Cements Ltd. Vs. The Commissioner of Commercial Taxes, Cehepuk, Chennai reported in 2018-VIL-494-MAD:- In this case, a similar letter dated 31.05.2018 was issued by the Commissioner of Commercial Taxes, Chepuk, Chennai-5 wherein manufacturer as well as mining dealers were made disentitle for inter-state purchase of HSD at concessional rate on strength of Form C in the writ petitions filed by several dealers, the Hon’ble Court by placing reliance upon the judgment of various High Courts was pleased to hold that the dealer who purchased the goods in the course of inter-state trade, is entitled to get the benefit of concessional rate of tax, in purchase of HSD is used by the said dealer for manufacturing activities or for use in telecommunication network or for use in mining or for use the generation or distribution of electricity or any other form of power.
(v) Star Cement Meghalaya Vs. The State of Assam & Ors. Reported in 2018-VIL-459-GAU:- In this case a similar circular being circular No.7/2017-GST dated 05.09.2017 was issued by Finance & Taxation Department through Commissioner of Taxes, Assam wherein clarification was given that post GST Regime, purchase of “six goods” for the purpose of being used in manufacturing of any goods other than those six goods, dealers cannot avail the benefit of paying CST at concessional rate by utilizing Form C. In the writ petition filed by the dealer engaged in manufacturing of clinker, the Hon’ble Court was pleased to set aside the circular dated 05.08.2017.”
Taking into consideration, we are of the opinion that the circular dated 17th August, 2017, which is partially quashed by Punjab and Haryana High Court and has been approved by the Hon’ble Supreme Court. Other High Courts also have taken a similar view. In that view of the matter, it will not be appropriate to now enforce the circular dated 17.8.2017 and the circular of 1st November, 2018 will prevail along with the judgments which are referred herein above, the authorities are bound to implement all decisions referred to above and we are approving the ratio laid bound those decisions and we direct the State Government to follow and act in accordance with the ratio of those decisions.
With the aforesaid observation and direction, this writ petition stands disposed of.
Urgent certified copy of this order be granted on proper application.