3% Tax Rate benefit under MVAT Act cannot be given prior to 14.10.2017

Deepak Fertilisers and Petrochemicals Corporation Ltd. Vs The State of Maharashtra (Bombay High Court)

The only question that we have to consider is whether this concessional rate of duty could be availed of by the petitioner from 24.08.2017 to 13.10.2017. The intervening period where the taxable person under MGST Act does not continue to be registered under the MVAT Act would result in denial of input tax credit or refund of tax paid on purchases of goods covered by MVAT Act. That is because under MGST Act any tax paid under MVAT Act is not available to be claimed as input tax credit. Hence, in order to benefit the person under the MGST Act and in order to ensure that the impact of tax on the dealers registered under both laws is same, the notification which we reproduced above, namely, Exhibit­E page 57 of the paper book, has been issued. In the earlier notification of 24.08.2017 the parity between both dealers was not brought out or recognized. Now it is recognized and w.e.f. 14.10.2017. We do not see how we can then rely upon any Trade Circulars and grant the benefit as claimed by the petitioners.

A perusal of the affidavit in reply filed, the paragraphs which we have reproduced above, would reveal that until the Government intervened to bring about the parity or equality, there could not have been any assumption or inference as is drawn by the petitioners before us. The petitioners are not challenging the notifications. The Circulars, at best, are for internal guidance or clarification of queries of the Trade and officials, but their language cannot control the substantive notifications. The notifications amending the schedule would enjoy the same status as that of the rules under the Act. In the circumstances, we do not think that relying upon these circulars, the petitioners can claim the benefit in the intervening period, more so, when both dealers were not included under the earlier notification. In the circumstances, we feel that the petitioners are not right in their contentions based on which the reliefs have been claimed. The relief claimed is that we should quash the Trade Circular dated 16.01.2018. That Trade Circular No.3T of 2018 is but clarifying the position resulting from issuance of these two notifications, namely, of August and October 2017. We cannot see how we can hold that the State Government intended to grant the benefit by circular to a taxable person registered under the MGST Act when he was not within the purview of the substantive law, MVAT. In other words, a taxable person registered under the MGST Act by virtue of the amendment to the MVAT Act went out of the purview of the MVAT Act. That is how Section 16(6­A) reads and that provides for deemed cancellation of his registration. If any benefit has to accrue to such dealers, then, it is not disputed that issuance of the substantive notification or an exercise similar to the same will have to be carried out. That was carried out by amending Schedule­B. Thus, Section 9 empowers the Government to carry out an amendment to the Schedule appended to the MVAT Act. In the earlier amendment by notification dated 24.08.2017 the registered dealers were not defined to include taxable persons registered under the MGST Act. Further, the word ‘goods’ referred to in the entry as defined under the Act did not take within their import the goods defined under the MGST Act. Hence, merely because the 24.08.2017 notification employs the words “or any other good’s, whatsoever” for the purposes of availing of the concessional rate of duty that is not enough. By that we cannot infer that from 24.08.2017 itself both, the goods as defined the MGST Act and the taxable persons contemplated thereby, are included in the amendments to Schedule­B as the August­20 17 notification at page 51 first time brings in a substitution in Entry­15 and after Entry­15, inserts the portion as reproduced from the notification of 24.08.2017. Thus, the conditional relaxation from the rate of duty from 13.5% to 3% was a benefit not extended to taxable persons under the MGST Act as also to the goods defined under the MGST Act.

It is obvious from a reading of the subsequent notification dated 13th October 2017 that both the goods and taxable person under the MGST Act have been brought within the purview of Schedule­-B and Entry­ 16. In such circumstances by any interpretative process or by resorting to the exercise suggested by the petitioners, we cannot bring in the goods as defined under the MGST Act and the taxable person registered under the MGST Act in the Schedule­-B as amended. As already held above, Schedule-B to the MVAT Act, 2002 has been amended and by resorting to the power to amend conferred by Section 9(1) of the MVAT Act. It is entirely for the Maharashtra Government therefore, to bring a notification to the Maharashtra Value Added Tax Act, 2002 to extend the concessional rate of duty or to enable availing of the concession by such persons who were earlier not eligible and entitled to it. It is in these circumstances that we are of the opinion that Mr.Sonpal is right in his submission that this Court cannot rely upon the language of the Trade Circular or the understanding of the Government as reflected from the Trade Circulars to grant any benefits to the petitioners from an earlier date or an earlier period. The benefit will have to be granted only from the date from which it is extended, namely, w.e.f. 14.10.2017. The explanation that is provided in paragraph 26 of the affidavit in reply filed in the Writ Petition of M/s.Deepak Fertilizers (Writ Petition No.2424 of 2018) is, therefore, correct.

FULL TEXT OF THE HIGH COURT ORDER / JUDGMENT

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