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2015 (2) TMI 42 - HC - VAT and Sales TaxSet off under rule 41E of the Bombay Sales Tax Rules, 1959 - Held that:- In the garb of deciding the issue of applicability of the Hon'ble Supreme Court's judgment in M/s. Loharn Steel Ltd. (1996 (12) TMI 328 - SUPREME COURT OF INDIA) to the facts and circumstances of the present case, the tribunal travelled beyond its jurisdiction and authority. It declared rule 41E as ultra vires and unconstitutional and which it has no authority to declare. Apart therefrom the tribunal was obliged to consider the issue as to whether any assistance can be derived from the judgment of the Supreme Court assuming that the issue involved was identical. Assuming that the controversy dealt with by the Supreme Court was identical then relying on the said judgment whether rule 41E and plain language thereof can be ignored is a further question. The tribunal in the present case and in the second appeal of the assessee could not have therefore ignored rule 41E and virtually declared it unconstitutional being ultra vires Article 304(a) of the Constitution of India. This was not a permissible exercise as the tribunal derived its authority under BST Act itself. Issue of constitutionality and legality of rule 41E to the extent noted above could not have been decided by the tribunal in the second appeal of the assessee. It has clearly erred in law in undertaking the exercise of deciding the constitutionality and legality of the said rule. Therefore, the two questions will have to be answered by holding that the claim which was made in alternate would have to be dealt with and decided on the touch stone of rule 41E as it stood at the relevant time and its clear language. The tribunal could not have ignored the same in dealing with the alternate claim. - Reference disposed of.
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