TMI Blog2003 (1) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute that the remedy under section 84 of the Rajasthan Sales Tax Act, 1994 is there so as to challenge the order passed by the assessing officer against the order of assessment. 3.. Learned counsel for the appellant submits that the remedy of the appeal as aforesaid is coupled with an onerous condition of depositing the amount as assessed by the assessing officer under the Sales Tax Act and, therefore, unless the due amount is deposited, the appeal cannot be entertained. It is also the case of the appellant that he is not in a position even to deposit the 10 per cent of the amount and he submits that it was not at all the case in which the petition could be dismissed on the ground of alternative remedy of statutory appeal as describ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept by an express provision or by necessary implication. In yet another case of M.G. Abrol, Additional Collector of Customs, Bombay v. Shantilal Chhotelal and Co. reported in AIR 1966 SC 197, the Supreme Court held that remedy by way of an appeal against the order of confiscation and imposition of a large penalty under the Sea Customs Act is not an effective remedy because no appeal can be filed unless the large penalty imposed upon the petitioner has first been deposited. 4.. Learned counsel Sh. Manoj Bhandari, on the other hand, has argued that in the facts of this case, such an onerous condition is not there because the remedy of appeal can be availed only by depositing 10 per cent of the dues under the assessment order. According t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not so onerous as to amount to unreasonable restrictions rendering the right to be almost illusory. In yet another case of Vijay Prakash D. Mehta and Jawahar D. Mehta v. Collector of Customs (Preventive), Bombay reported in [1989] 72 STC 324 (SC); AIR 1988 SC 2010, the Supreme Court held that the right to appeal is a statutory right and it can be circumscribed by the conditions and such right could not be whittled down. It is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial and quasi-judicial adjudications. The analysis of the principles, which have been laid down in the aforesaid decisions clearly show that unless the conditions are so onerous and harsh that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1994 defines as to what is the sale and the same is reproduced as under for ready reference: "2(38) 'sale' with all its grammatical variations and cognate expressions means every transfer of property in goods by one person to another for cash, deferred payment or other valuable consideration and includes- (i) a transfer, otherwise than in pursuance of a contract, of property in goods for cash, deferred payment or other valuable consideration; (ii) a transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract; (iii) any delivery of goods on hire-purchase or other system of payment by instalments; (iv) a transfer of the right to use goods for any purpose (whether or not f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement for the lease has been made outside the State or that the goods have been moved from outside the State or the goods have been delivered to the lessee outside the State. Explanation III.-Where there is a single contract of sale or purchase in respect of goods stored or ascertained in the State as well as at places outside the State, the goods stored or ascertained in the State shall be deemed sold separately in or from the State. Explanation IV.-Where the work under a works contract is spread over in many States including the State of Rajasthan, the part of the work done, within this State shall be deemed to be the sale made in the State, irrespective of the place of agreement for works or the point of movement of goods involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sale within the meaning of section 2(38), there is no question of charging sales tax thereon. In case, the appellant has made any misuse of the form "C" and has wrongly availed any concession or has taken any undue benefit or unlawful gain, which otherwise could not be available to him, it is always open for the concerned authorities to take appropriate action against him in accordance with law, but that does not mean that he could be made liable to pay sales tax on such transaction (which does not amount to sale) on the basis of which job of blasting was undertaken and completed and in the process thereof the explosives were made use of. 6.. We, therefore, find that this appeal must succeed on its own merits, the order dated November ..... X X X X Extracts X X X X X X X X Extracts X X X X
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