IN THE HONBLE HIGH COURT OF JUDICATURE FOR CHHATTISGARH re^ 1 BILASPUR Writ petition v. Respondenis

Trading Smt. Rita Chhattisgarh State MinorForest Produce (T & D) Cooperative Federation Limited & Anofher WRIT PETITION mNO. 90 OF 2012 PETITIONER AyubSharif RESPONDENTS Versus Chhattisgarh State Minor Forest produce (T & D) Cooperative Federation Limited & Another WRIT PETITION fT) N0.91 OF 2012 PETmONER PawaaPatel RESPONDENTS Versus Chhattisgarh State Minor Forest Produce (T & D) Cooperative Federation Limited & Another WRIT PETITION (T) N0. 93 OF 2012 PETLTIONER M/s Sri Lakshnii Ganpathi Traders RESPONDENTS Versus Chhattisgarh State Minor Forest Produce (T & D) Cooperative Federation Limited & Another WRIT PETITION (T) N0. 94 OF 2012 r'-^^Sff. PETITIONER M/s Irfaa Ahmed RESPONDENTS Versus Chhattisgarh State Minor Forest Produce (T & D) Cooperative Federation Limited & Another WRIT PETITION m N0. 96 OF 2012 PETITIONER M/s Wasy's Sons RESPONDENTS Versus C|(ihatdsgarh Stete Minor Forest P.foduce (T & D) Coopejrative jl'ederation Limited & ^aother WRIT PETITION m N0. 97 OF 2012 PETtTIONER RESPONDENTS ^s Khaja Hussain & Co. 1 Y$raus | i ' ^bNttisgarh State Minor Forest tl'qduce (T&D) CoopCTative gederation Limited & Another i<i'<. (•• WRITPEtftIONm'NO. 98 OF 2012 l^ PETITtONER RESPONDENTS Jai Bhavani M/s proprietor Yogesh Kumar Kotak Versus Enterprises Chhattisgarh State Mmor Forest Produce (T & D) Coop^rative Federation Limited & Another WRIT PETITIO^ CTI N0.99 OF 2012 PETITIONER Khaja Munawaruddin RESPONDENTS Versus Chhattisgarh State Mmor Forest Produce (T & D) Cooperative Federation Limited & Another WRIT PETnl[&;N CT) N0. 100 OF 2012 PETITIONER Niket Kumar Bhojani RESPONDENTS Versus Chhattisgarh State Mmor Forest Produce (T & D) Cooperative Federation Limited & Ahother WRITPETITIONmNO. 101 OF 2012 PETITIONER SyedlS&isoor Ali Buquari RESPONDENTS Versus Chhattisgarh State Minor Forest Produce (T & D) Cooperative Federation Limited & Another WRIT PETITION m N0.103 OF 2012 PETtTIONER RESPQNDENTS Sales Corporation M/s Baba proprietor Mohd. Yayub Versus 1 Chhatdsgarh State Minor Forest Produce (T & D) Cooperative Federation Limited & Another WRIT PETITION m N0. 104 OF 2012 'o PETITIONER Ratna Mohan Reddy | ::;ell RESPONDENTS Versus ; Chhattisgarh State Minor Forest Produce (T & D) Cooperative Federation Lmiited & Another WRIT PETITION m N0. 107 OF 2012 PETITIONER TaskeenAbdulBari RESPONDENTS yeisus (]!}ihattisgarh State Minor Forest PjTQduce (T & D) Cooperative Iilp(leration Limited & Anofher WRIT PETITION UNDER ARTICLE 226 OF TiIE CONSTITUTION ©PINDIA | SB: Hon'ble ShriSatish K. Asnihotri. J. Present: " Shri Shashank Dpbgy, Senior Advocate with Shri Anand Mohan Tiwari, Adyficate fbr tiie petitioners. Shri A.S.K^chh'iyati^ Advocate for the respondent No. 1. Shri Sanjay K. Agt8,yd> Advocate General with Shri Pankaj Shnvast%y?i, ^anel Lawyer fbr the State/resporulent No.2. ,:'! • •• . . 4' .y. » J2^ O R D »»fO PBNCOURT) (Passed Oti W day ofJanuary, 2013)

1. W.P.(T) No. 79,80i 81, 82, 83, 84, 85,87, 88,89,90,91, 93, 94, 96,97,98,99,100, t0l, 103,104, and W.P.(T) No. 107 of 2012, involve common faets as well as one and the same question of law, require to be deCid^d by common order.

2. As all the facts are iS&rilinori, the facts and documents referred in the first petition i.e< W.P.(T) No. 79/2012, are being taken fbr consideration. The petitioners are engaged in business ofTendu leaves. A tender waS flbated by the respondent No. 1/Federation for advance sale ofTendu Leaves for collection season 2012. The petitioners submitted their offer which was accepted and commiinicated to tfie petitioners by the respondent No. 1 on

16.012012 (Annexure P/l). Th,e petitioners executed a purchase agreement with the respondent No. 1/Federation. Payment for each lot, as per the conditions contained in the agreement, was to be made in four mstalldehts i.e. on 04th October, 2012, 19fll November, 20-12, 4th January, 2013 and 15fh Febroaiy, 2013. As per condkion No. 8, tax leviable was to be paid alongwith mstallments and purchasers were required tol pay the Vahie Added Tax (for shoft Added Tax Act, 2005 (for short 'the VAT Act'}. The petitioners the VAT') under the Chhattisgarh Value were directed to pay VAT at the rate of 25% on purchase of Teridu leaves. In the meantime, the State Govemment issued a E.N notification on 31.03.2006 (Annexure P/4) granting exemption partly so asto reduce the rate oftax on mmor forest produce to 4%. The said notification was valid for the penod 01.04.2006 to

31.03.2008. By iiotification dated 31.3.2008 (Annexure - P/5), the exemption on final mmor forest produce was further extended for the period from 1.4.2008 to 31.3.2012 reducing the rate oftax to 5%. Thereafter, on 24.03.2012 (Annexure P/6), by notification " 0 I validity of the nptificftticin (Annexure P/5) was extended upto

31.03.2013. !

3. Shri Shashank Dubey, leamed Senior counsel appearing with Shri Anand Mohan Tiyqri, leamed Advocate fpr the respective petitioners, would submit that the Act of 2005 does not contain any defimtion ofminor forest produce but the Chhattisgarh State 'thePolicy, 20071) (Annexure P/7) " ;: ,, Forest Policy, 2001 ffoyi^ort defines it as "non tinihpr forest produce, mcludmg Tendu \ •>•"" Leaves". Furth.er, in th§Seheduled Tribes and Qther Traditional Forest Dwellers (Recqgififion of Forest Rights) Act, 2006 (for short 'the Forest Rightii ^fffc 2006'), it has been| defined as "non 1 timber forest produce ui(?luding Tendu Leaves". Shri Dubey 1 further submits ttiat ig Sfiliedule II part III (Aimexure P/ll), Tendu Leaves is mentipqgfi at serial No. 5, however, no rate of tax is mentioned in coli^n (3) thereof. In column (4), rate of 25% is mentioried under ^ctipn 8(ii), however, m the Act, 2005, ' * there is no section 8(ii), ag (t was omitted in 2006. -,' ^ :1 • / f

4. It is further urged tBat Ifae petltioners are not liable to pay 25% tax on purchase 6f'iffeildu Leaves, but only 5°/o under notification dated 31.3.2008 (Ail:tle»ure-Pi'5).

5. On the other hand, SKti Sanjay K. Agrawal, leamed Advocate General appearirig Wiffl Shri Pankaj Shrivastava, leamed Panel Lawyer for the StSfe/respofldent No. 2 and Shri Kachhwaha, leamed Advocate a{ii|)efeing for the respondent No. 1/Federation, would submit that tKe petitioners had entered into an agreement with the respondent Nb. 1, wherein clause 8|of the purchase agreement is veiy Specific; The State Govemment, by notification dated O i.09.2006, has amended the VAT tax for ta^iisacdon of Tendu Eeaves at,.the rate of 25%. The petitioner ought to have approaclted the Assessing Aufhority befbre filing the present writ petitioh. The petition is premature and on the ground of availability 8f altemative remedy, this petition is not maintainable. Once the specific rate has been nodfied fi}r the Tendii Leaves, it caBn6t be considered as minor forest produce for the purpose of the taxation, irrespective of the definition of minor forest produce in other Acts. Besides, the State is fally competent to impose different rate of taxes for different iiunor forest produce. Shri Agrawal, would further submit that vide amendments in CG VAT (Amendment) Act, 2006 (No. 26 of 2006) (for short 'the Amendment Acf) w.e./01.04.2006, Teadu Leaves is exigible to tax at fhe rate of25%. 10

6. Leamed Advocate General would next conteiid fhat there is a special Act dealing with the trade ir^Tendu Leaves namely Madhya Pradesh Tendu Patta (Vyap(S^miyamcm) Adhiniyam, 1964 (for short 'the Adhiniyam, 7964')a|tl as such, Tendu Leaves caimot be treated as minor forest produce. Thus, the petitioners are not entitled to exemption under the exemption notification dated 30.03.2006 (Aimexure P/4). Shn^grawal would further '.%?. submit that the contention ofthe petitioner that under fhe Policy, 2001, and the Act, 2006, the minor ^forest produce has been defined as "non timber fprest produce mcludmg tendu leaves", therefore the Tendu Lgayes cannot be t^xed at the rate ofmore than 5%, is fallacious sod without substance, because under no circumstances, when there are separate entries in Schedule H for forest produce and thgre is a separate.'entiy for Tendu leaves, taxable at the rate of 2g%, it camiot.be said that the Tendu Leaves, being a minor ffiFpst produce, is entitled to benefit of exemption. ; •»: (^, o,

7. Heard leamed counsel ^ppearing for the parties, perused the pleadings and documents ^ppended fhereto.

8. Initially, the rate Qftaxjn r^spect ofTendu Leaves was in column No. 4 under Section 8 (li) ipffhe Act, 2005. Section 8 is charging section which provide^i there shall be levied on goods specified in Sch^dule II, a tax at the rate mentioned in the corresponding entry in column (3) thereof. Subsequently, by T'1—-Tifi!^i'tauiw M^ ••y) Amendment Act, 2006, schedule II of the pritacipal Act, 2005 was amended and tlie dolumhNo. 3 was omitted and column No. 4 was re-numbered as coUlmh No. 3 aiid Rate of tax under Section 8 (ii)' wa8 slutistituted by 'Rate of tax under Section 8 percent'. Thus, ttlB (lifect m Schedule II was amended and fhe rate oftax was brtitlght under column No. 3 and as such, rate of tax was in accordailde'Ovith the charging section 8. Thus, there is no infinnity with re§ardto Sctiedule II for the purpose ofrate of tax.

9. Shri Dubey, on beHdlf of tiie petitioners, without amending fhe pleadings, argues that sinee the amending Act was not accordaiice with the pfovisio^ of section 15A;ofthe Act, 2005 which provides for atflendment of Schedule, the amendment is not proper and caritiot be relied upon. Section 15A provides for amendment by way bf iiotifieation by the State Govemment in Schedule II. It is fUfttier prbvided in sub-sectibn (3) of section 15A that eveiy notificatiDii issued under sub-section (1) shall, as soon as may.be, laid 6& the^able ofthe Legisladve Assembly. The gazette publicatioii was also made, moreover, there was no change in the rate of tax as prescribed in the Schedule II. The same rate of tax, which was provided in column No. 4 was renumbered by Amendment Act and was brought under column ;* No. 3 m accordance with tfae requirement ofsection 8 ofthe Act,

2005. The Act was amended by the State Legislature. Thus, it 12 camiot be hesld that proper procedure fbr notification as prescribed under section 15A offhe Act, 2005 was not followed and, as such, fhe same is vitiated. There is alsp no pleadings to that effect except oral submission, as aforestated, advanced by leamed counsel for the petitioners. Thus, on both counts this contention of the petitioners is noticed to be rejected. If the -\ power to amend Schedule II has been conferred upon the State Govemment, the same can be exercised by the delegator also i.e. legislature. There is no challenge to the validity, constitutionality ofthe amending Act. Thus, tendu Leaves was exigible to the tax at the rate oftax of25% under Schedule II.

10.As regards applicabillity of the exemption notificatioris dated

31.3.2006 (Annexure - P/4) and 31.03.2008 !(Aimexure P/5). period of which has begn extended till 30.04.2013, it will be applicable to only tbps^ good or class of goods, which are exigible to tax as sp^piQ^d in schedule - H c>f the Act, 2005. There is no taxablp ent(y §eparately'forminor forest produce. The exemption notifications pfovide for granting exemption to minor forest produce partly sp as to reduce the rate of tax to 5%. This tax exemption is avail^le tp all the minor forest produce. The State Govemment, in ifs retum dated. 26.11.2012 has clearly stated that mmor forest prpduce are in several enfaies, as follows: "9....Hp^sy^r, by pemsal of certain specific e|t}tries in Schedule I like entry No. 4 - aquatic feed, poultry feed and cattle feed mcluding grass, hay and straw, 13 IS exchiding casuarinas esSy No. 5 - Betel leaves, entry No. 17 - Firewood eittSSly|)tus tlfflber, entry No. 22 - fresh plafitsj sapltrigs and fresli flowers, entry No ;|2 - leaf plates and cups, jpressed or stitiShed (Doae and pattal), entry No. 42 - SaBai grass and rope made of sabai grass, eriffy No. 44 seeds of all types;other than mefili, dharliya and the seeds Iwfaich are covNireS by thfi tenn "oil seeds" specified in Section 14(yi) of the Centoral Sales tax act,|i$56 (No.,74 of 1956), entry No. 51 Toddy, Neera and Ark would reveal that altBou^h they are the forest produces but sinee for tax purpose, a specific entry entfies.have been made in Schedule I of Chliatfisgaih: Vahie Added Tax, 2005 by wfaifih these .products althougl^ being the minQr produce, exehipted from taxation by making separate specific entries." forest ll.Clause 4.5 ofthe Policy, 2001, defmes minor forest produce as under: "4.5 COnservation of Minor Forest Products(MFP) Non timber forest produce calledl the Minor Forest Products or MFP like Teadu leaves, itBli, Chironji, Kullu ahd Dhawra Sal seed, gum, Kosa cocqpn, Honey etc..... | ll.Minor forest prodube has also been defmed in Section 2 (i) ofthe Forest Rights Act, 2006, which reads as under I (i) "2 'minor forest produce' includes all nori-timber forest produce ofplant origin including bamboo, brosh wood, stumps, lac, tussar, cocoons, honey, 1 wax, cane, tendu or kendu leaves, medicmal plants and herbs, roots, tubers and the like;" p; 14 There is no ofher definition in any ofher provisions including the Adhiniyam, 1?64.

13.It is fairly adnutted by Shri Agrawal that there is no separate entry, however, it is contended that wherever the separate entries for Tendu Leaves have been made, that would not come under the purview ofthe exeinption. ! |

14.The issue asto whethgr (sxemption would be available to such goods, which are not exigible to tax came up ;for consideration 1 before the Supreme Cqifft m the matter of Reliance Trading Company v. State ofKerfila, it was observed that "there could be nothing like exemptipp of goods from tax unless goods are exigible to tax." Therg i§no dispute that mmor ifbrest produce as such, is not exigible tig tgx. Forest produce like Bamboo, Tendu Q ! leaves etc. are exigiblp (? tax uader different entries. Thus, the exemption is applical)le to all the forest produce which are ebdgible to tax. The ^xemption will certainly|be applicable to ~ /" \ only those minor forest pfgduce, which are exigible to tax.

15.In view of the fbregojqg, gince these petitions involve mixed question of facts and las'i Uberty is reserved to the respecdve petitioners to prefer gn ppplication before fhe Commissioner, I VAT Act, if so adviseid, fpr exemption imder ;the above stated notificatibn. In that ey^ot, tfie Commissioner,j will decide the same in accordaaee ^itb Jaw, as early as possible, preferably ' (2006) 147 STC 111 (SC) 15 isz- within a period of four weeks from the date of receipt of the application. The petftioners will also be at liberty to make an application for graftt of stay m the payment of the tax, if so advised.

16.With the aforesaid Observation and direction, all these petitions stand disposed o£

17.No order asto costs> ; sa:/- ;sa'yshK.Ag ^ Judge Atul/Amit