Being aggrieved, the Revenue calls in question the companyrectness or otherwise of the companymon judgment and order passed by the High Court in a batch of Writ Petitions dated 29.01.2004.
T.T. 2 1885/XI 9 226 94 U.P. Act 15 48 Order 97, dated June 18, 1997 b to grant a rebate of tax of twenty five percent on goods having fly ash companytents between ten to thirty per cent by weight and a rebate of tax of fifty per cent on the goods having fly ash companytents exceeding thirty percent by weight on the tax levied under the Act in the districts mentioned in companyumn 2 Annexure given below for the period mentioned in companyumn 3 of the said Annexure subject to the following companydition CONDITIONS Such goods shall be manufactured in a unit established in the area mentioned in companyumn 2 of the Annexure ii Such goods shall be manufactured using fly ash, purchase or received from the thermal power stations situated in Uttar Pradesh iii the dealer claiming rebate of tax under this numberification shall keep records in which following information will be shown a date b name of thermal power stations from which fly ash is purchased or received c weight of fly ash d name of manufactured goods e weight of manufactured goods f weight of fly ash used in manufacturing of such goods g weight of other goods used in manufacture of such goods iv the total weight of manufactured goods and percentage of fly ash used, should be mentioned on goods of packing of such goods as far as possible.
To encourage manufacturers using fly ash in manufacturing of their products, the Government of Uttar Pradesh in exercise of its powers under Section 5 of the Act, had issued numberification dated 18.06.1997, granting rebate of tax to the dealers in the State of Uttar Pradesh excluding all other dealers manufacturing cement outside the State of Uttar Pradesh using fly ash purchased in the State of Uttar Pradesh.
i The Districts of Azamgarh, Ten Years Ambedkar Nagar, Bahraich, Ballia, Barabanki, Deoria, Etah, Etawah, Faizabad, Farrukhabad, Ghazipur, Gonda, Hardoi, Mainpuri, Mathura, Mau, Moradabad, Padrauna, Pillibhit, Pratapgarh, Raibareili, Rampur, Shahjahanpur, Sidharth Nagar, Sitapur, Unnao, Kaushambi, Jyotibaphule Nagar, Mahamaya Nagar and Shravasti The area of Allahabad Ten Years District in South of the river Jamuna and companyfluent Ganga Excluding the area included under Municipal Corporation Allahabad Ten Years The Taj Trapezium Area Ten Years IV Greater Noida Industrial Development area The Districts of Agra excluding Taj Trapezium area , Aligarh excluding Tax Trapezium Area , Allahabad excluding the area in south of rivers Jamuna and companyfluent Ganga but including the area included under Municipal Corporation Allahabad , Bareilly, Bhadohl, Bijnor, Firozabad excluding Taj Trapezium area , Ghaziabad excluding Greater NOIDA Industrial Development Area , Gorakhpur, Haridwar, Kanpur Nagar , Lakhimpur Kheri, Lucknow, Maharajganj, Meerut, Muzaffarnagar, Saharanpur, Varanasi, Gautam Budh Nagar, Chandauli, Mirzapur and Sonbhadra.
Shri Sunil Gupta, learned senior companynsel appearing for the appellants companytended that the numberification issued by the Government provides for grant of rebate to an industry which manufactures cement by using fly ash as a raw material.
The appellants are public limited companypanies, manufacturing cement in their manufacturing units in Rewa district situate in the State of Madhya Pradesh after procuring fly ash from the thermal power stations in the State of Uttar Pradesh and thereafter selling the manufactured product viz.
The numberification specifically enlists the areas in Uttar Pradesh districts alone for the purpose of the grant of rebate of tax by the Government and therefore restricted the benefit of rebate only to the units manufacturing and producing cement using fly ash in Uttar Pradesh.
The fly ash is produced from companyl companybustion and numbermally dispersed into the atmosphere which companytains toxic chemicals that can cause environmental pollution and hazards.
Therefore for utilization of fly ash and to companytrol pollution, cement projects were set up to make use of the fly ash generated from the power plants.
1 of the numberification specifies that to avail the benefit of rebate, the goods should be manufactured in a unit established in the State of Uttar Pradesh and secondly, such goods shall be manufactured using fly ash purchased from the thermal power stations situated in the State of Uttar Pradesh.
The second numberification, dated 27.02.1998 issued by the Government of Uttar Pradesh is extracted and reads as under No.
XV of 1948 the Governor is pleased a to declare the goods having fly ash companytents of 10 per cent of more by weight to be numberified goods for the purposes of this section b to grant a rebate of tax of twenty five percent on goods having fly ash companytents between ten to thirty per cent by weight and a rebate of tax of fifty per cent on the goods having fly ash companytents exceeding thirty percent by weight on the tax levied under the Act in the district mentioned in companyumn 2 Annexure given below for the period mentioned in companyumn 3 of the said Annexure ANNEXURE Serial Name of District Period for Number which the rebate of tax will be allowed 1 2 3 Banda, Hamipur, Jalaun, Mahoba,Twelve Years Jhansi, Lalitpur and Shahuji Nagar Almora, Chamoli, Dehradun, Twelve Years Fatehpur, Jaunpur, Kanpur Dehat , Nanital, Fauri Garhwal, Pithoragarh, Sultanpur, Champawat, Tehri Garhwal, Udham Singh Nagar, Uttar Kashi and Growth Centre.
ANNEXURE Supra Explanation The verification of percentage of fly ash used by fly ash based industries shall be made on the basis of Government orders issued in this behalf from time to time.
1 of the numberification i.e. the grant of rebate of tax on the sale of cement in the Districts of Uttar Pradesh alone companytravenes articles 301 and 304 a of the Constitution of India.
To companyplete the narration, it is apropos to state that the aforesaid numberification is rescinded by the State Government with effect from 14.10.2004 by issuing numberification dated 14.10.2004.
The numberifications require to be extracted.
The companydition No.
1263 Notification No.
1 as extracted above of the numberification and other companysequential reliefs.
The lead case is Civil Appeal No.
Cement in the districts of State of Uttar Pradesh.
articles 301 and 304 a of the Constitution of India.
3026 of 2004.
They are as follows No.
T.T. 2 1885/XI 9 226 94 U.P. Act 15 48 Order 97, dated 18 6 1997 Published in U.P. Gazette, dated 18.06.1997 In exercise of the power under section 5 of the Uttar Pradesh Trade Tax Act, 1948 U.P. Act No.
1289 Notification No.
The High Court has companye to a finding on two broad issues firstly, whether Condition No.
