# Deepak Fertillisers & Petrochemicals Co.Ltd v. State of U.P. and others

- **Citation:** (2000) 3 ILRA 325
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-fertillisers-petrochemicals-co-ltd-v-state-of-u-p-and-others-39526
- **Pages:** 3

## Text

325 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
4. Thus there is no question of
applicability of three years rule of
limitation to the provisions under Control
Order enacted under the provision of the
Essential
commodities
Act,
1955,
Prescribing a period of sixty days only for
filing an application for renewal of a
licence, in our view, by no stretch of
imagination
is
unreasonable
and/or
arbitrary and, accordingly, the petitioner's
assertion that his fundamental right as
guaranteed under Article 19 (1) (g) of the
Constitution of India stands breached, has
got no force at all.

5. This writ petition is consequently
dismissed, but without cost.

6. The office is directed to hand over
a copy of this order to Sri H.R. Mishra
learned Standing Counsel, within one
week for its intimation to the authority
concerned.

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By the Court

1. Heard Sri Bharat Ji Agarwal,
learned counsel for the petitioner, and Sri
R.D. Gupta, learned Standing Counsel,
for the respondents.

2. The petitioner is a company
registered under the Indian Companies
Act which is engaged in the business of
manufacture and sale of Phosphatic
Fertilisers and allied chemicals, and it is
registered under the U.P. Trade Tax and
Central Sales Tax Act. The petitioner is
Sellking Phosphatic Fertilizers within the
State of U.P. and composition of the same
I N.P.K. 23:23:0 (the letters N.P.K.
3All] Deepak Fertillisers & Petrochemicals Co.Ltd. V. State of U.P. and others 326
Standing of nitrogen, Phosphorous
and Potassium, respectively).

3. A notification dated 2.11.1994,
Annexure no.4 to the Writ Petition, was
issued by the State Government under
Section 4 (a) of the U.P. Trade Tax Act
exempting
Potassic
and
Phosphatic
Fertilizers
till
31.3.1995.
However,
subsequently
a
notification
dated
10.4.1995, vide Annexure 5 to the writ
petition, was issued superseding the
earlier notification dated 2.11.1994 and
stating that only certain category of
fertilisers (mentioned therein) will be
exempted and not all kinds of fertilizers.
This was followed by another notification
dated 15.5.1995 specifying seven varieties
of fertilizers to be exempted under
Section 4 (a) vide Annexure 6. In the
notifications
dated
10.4.1995
and
15.5.1995 there is no mention of the
fertilizers sold by the petitioner viz
N.P.K. 23:23:0. Hence the petitioner
wrote a letter dated 23.11.1995 of the
Commissioners, Trade Tax pointing out
the discrimination meted out to the
petitioner by non-inclusion of N.P.K.
23;23;0 in the exemption notification
dated 15.5.1995. A true copy of the said
letter is Annexure 7.

4. However the Trade Tax Officer
issued a notice dated 16.11.1995 to the
petitioner to show cause why tax be not
imposed on the petitioner's sale of
fertilizer N.P.K. 23:23:0, vide Annexure
8.
Thereupon
on
29.11.1995
the
petitioner's representative and counsel
appeared before the Trade tax Officer and
prayed for adjournment since the matter
relating to exemption for N.P.K. 23:23:0
was
pending
before
the
State
Government. However, the side authority
issued notice dated 29.11.1995 to the
petitioner, vide Annexure 9. He also
stopped issuing From 31 to the petitioner.

5. The petitioner challenges the
validity of impugned notifications dated
10.4.1995 and 15.5.1995, Annexures No.
5 and 6 respectively to the writ petition.
The petitioner has also prayed for
mandamus directing the respondents not
to discriminate N.P.K. 23:23:0 and to
include the same in the exemption
notification. Exemption has been granted
to N.P.K. 20:20:0 and some other N.P.Ks.
vide Annexure 6 to the writ petition.

6. The first grievance of the learned
counsel of the petitioner is tht this notice
dated 0.4.1995 could not have been issued
with retrospective effect. In view of the
decision of this Court rendered in Civil
Misc. Writ petition No. 1152 of 1995'
(M/S Ganesh International and another
Vs.
Assistant
Commissioner
and
Others) decided on 6.7.2000 this point
has to be decided in favour of the
petitioner, Hence we hold that notification
dated
10.4.1995
will
only
apply
prospectively and not retrospectively.

7.

Shri
Agarwal's
second
submission is that the notification dated
15.5.1995
is
discriminatory.
The
notification dated 15.5.1995 vid Annexure
6 to the writ petition, was issued by which
the fertilizers except N.P.K. 23:23:0 were
exempted till 1.4.1996. Subsequently, on
1.4.1996 again all kinds of Phosphatic
Fertilizers of N.P.K. combination have
been exempted.

8. In paras 20 and 21 of the writ
petition it has been alleged that there is
discrimination against N.P.K. 23:23:0 in
the notification dated 15.5.1995. All the
fertilizers mentioned in the notification
327 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
dated 10.4.1995 and 15.5.1995 are
phosphatic and potassic fertilizers. All the
fertilizers
of
N.P.K.
of
various
combinations are treated as phosphatic
fertilizers not only by the Government of
India but also by the State Government's
Agriculture Department, the farmers, the
trade, and in common parlance. Hence, it
is submitted that there is no rational basis
of discriminating against N.P.K. 23:23:0

9. The learned counsel of the
petitioner has relied upon a decision of
the Supreme Court rendered in the case
'Ayurved Pharmacy and another Vs.
State of Tamil Nadu' 1989 (2) Supreme
Court Cases page 285, and has submitted
that two items of the same category
cannot be discriminated. Relying upon his
decision he has submitted that merely
because of the composition of N.P.K.
discrimination could not have been made
against the petitioner.

10. On the other hand, the learned
Standing Counsel appearing for the
respondents has relied upon a decision of
the Supreme Court in 'Kerala Hotel and
Restaurant Association and other Vs.
state of Kerala and others' AIR 1990
Supreme Court page 913 (para 27)
wherein it has been held that the State
enjoys the widest latitude where measures
of economic and fiscal regulation are
concerned.

11. In our opinion, the decision of
the
Supreme
Court
in
Ayurveda
Pharmacy and Another Vs. State of Tamil
Nadu (Supra) squarely applies to the facts
of the present case. In that decision it was
held by the Supreme Court that while it is
open
to
the
legislature
or
State
Government of select different rats of tax
for
different
categories,
where
the
commodities belong to the same class or
category there must be a rational basis for
discriminating between on the commodity
and another for the purpose of imposing
tax (vide para 6) (We, therefore, hold that
merely because of different compositions
of N.P.K. discrimination could not have
been made against N.P.K. 23:23:0 sold by
the petitioner. Hence, we allow the
petition and direct that the respondents
shall not realize tax on the sale of N.I.K.
23:23:0
from
the
petitioner
from
10.4.1995 to 31.3.1996.)

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