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2021 (10) TMI 808 - HC - VAT and Sales TaxRevision/reassessment order - escaped turnover / wrong availment of 'Input Tax Credit' (ITC) - Hans Chap Khaini - exempt from tax or not - Alternate remedy rule - HELD THAT:- The matter turns on facts and Hans Chap Khaini is only a brand and it is not a product. Whether the product would qualify as 'Tobacco' is a matter which turns on facts and in the considered view of this Court, the reasoned impugned order does consider the principles qua earlier orders and the same stand distinguished. Alternate remedy rule - HELD THAT:- In the case on hand, there is no disputation or disagreement that the impugned order is appealable. In other words, statutory appeal qua impugned order is available to the writ petitioner, which will be under Section 51 of TNVAT Act - the law is well settled that it is not an absolute rule and it is a discretionary rule. While holding it is not an absolute rule i.e., a discretionary rule and a self-imposed restraint qua writ jurisdiction. In the considered view of this Court, this is a case which has to be dealt with by Appellate Authority if the writ petitioner / dealer chooses to prefer an appeal as it turns heavily on facts. As already alluded to supra, 'Hans Chap Khaini' is a brand name and though the written submission talks about packets, it is understood that it is effectively sachets. The contents of sachets have to be necessarily gone into. One of the extracts from the impugned order makes it clear that the respondent in the impugned order has clearly gone into the ingredients and has even gone into process and making of 'nice tobacco'. Respondent has gone into and examined that products such as menthol, geru, lime an spices etc., are homogeneously mixed with the same either by a electric machine or by a manually operated machine. As all these details turn on facts, it would be appropriate that the Appellate Authority examines this if the writ petitioner chooses to file an appeal and therefore, this Court refrains itself from expressing any opinion on these aspects of the matter in this order. The writ petition is therefore dismissed albeit leaving a window open to the writ petitioner / dealer to file an appeal under Section of 51 of TNVAT Act if the writ petitioner chooses to do so.
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