(M/s. G.M. Thaokar & Company v. State of Maharashtra through Secretary, Department of Finance, Mumbai) Office Notes, Office & Anr.

Heard Shri Mirza, learned counsel for the petitioner and Shri Aney, learned Senior Counsel with Mrs. Dangre, learned Additional GP for the respondents. The contentions raised need to be considered in the light of judgment dated 20.08.2009 delivered by this Court in Writ Petition Nos. 2937 of 2007 and 2088 of 2008 between the parties. In that judgment, this court in para 12 has observed thus : “Thus, when 2002 Act prescribes a distinct definition of “manufacture”, by merely using a tariff entry in Central Excise, it cannot be said that concept of manufacture as contained in Central Excise Act is also imported in 2002 Act. The petitioners have not pointed out that they have been assessed in any particular manner under 2002 Act though their product does not satisfy requirements of Section 2(15) of 2002 Act which defines “manufacture”. Whether their activities constitute 298wp8.12 2 manufacture under Section 2(15) or not is the question which cannot be gone into at this stage as it is only hypothetical.” In para 13 again, this Court has concluded thus : “The definition of “manufacture” as contained in 2002 Act is separate and added Entry 45-A will have to be understood in its light only. It is not the argument before us that said entry is ultra vires to the provisions of 2002 Act itself.” The petitioner challenged said judgment before the Hon'ble Apex Court. The Hon'ble Apex Court has permitted the petitioners to move application for rectification of order as they had been served with a demand notice and liability was imposed upon them. Accordingly, CAW No. 309 of 2011 was filed and on

23.06.2011, the same was disposed of after noticing that the demand notice insofar as levy of interest was concerned, was subjected to challenge in appeal. Liberty was given to the petitioners to file fresh petition. Accordingly, present writ petition has been filed. The very same contentions which this Court has dealt with on 20.08.2009 have been reiterated. Shri Mirza, learned counsel contends that as it is a self assessment, the authority was not required to find out whether the activity of the petitioner constituted manufacture under Section 2(15) of the Maharashtra Value Added Tax Act, 2002. His submission is that 298wp8.12 3 activity has been construed as “manufacture” only because of addition of Entry 45A and import of concept of manufacture from Central Excise Tariff Act, 1985. Shri Aney, learned Senior Counsel with Mrs. Dangre, learned Additional GP has opposed the petition. He has invited attention to relevant findings already recorded and urged that basic facts, to show that activity of the petitioner does not constitute manufacturing activity are not disclosed in present writ petition and the respondent is, therefore, not able to demonstrate before this Court that it is covered by the definition in Section 2(15) of the Maharashtra Value Added Tax Act, 2002.

He has urged that the other argument about the importing of concept of manufacture from the Central Act is already considered and concluded by the judgment of this Court mentioned supra. However, by way of abundant precaution and in order to show entitlement of State Legislature to rely upon the provisions in Central enactment, he has invited our attention to relevant entries in List I and List II with consequential amendments therein from time to time with contention that till 1959, tobacco was subjected to only Excise Duty and Sales Tax was levied upon it for the first time in the year 1959. In the light of facts as noted above, we do not find it necessary to go into this history. The findings of this Court already noted above have not been disturbed by the Hon'ble Apex Court. The petitioner, therefore, has to demonstrate 298wp8.12 4 that his activity is not covered by phrase “manufacture” as understood under Section 2(15) of the Maharashtra Value Added Tax Act, 2002.

There is no such effort in present petition. The appeal filed by the petitioner is pending and, therefore, liberty is granted to the petitioner to raise all appropriate contentions in this respect by adding relevant facts and grounds in that appeal. The necessary steps in this respect be taken within a period of four weeks from today. The concerned authority shall look into the grounds as raised and take appropriate decision on it in accordance with law within a further period of two months thereafter. Needless to mention that the parties are at liberty to challenge such adjudication in accordance with law thereafter. With these directions, we dispose of the present writ petition. No order as to costs. JUDGE *GS. JUDGE