9911796707
TMI Blog1988 (9) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... the question are concerned, the petitioner has a right of appeal under the Act and the appellate authority is the proper forum to decide whether the case falls under section 30-C or not. It is not appropriate for this Court to go into the merits of the case under article 226 of the Constitution of India, when there is the alternate remedy of appeal. So far as the validity of section 30-C is concerned, the ratio decidendi of the decision of the Supreme Court in Kasturi Lal Harlal v. State of U.P. [1987] 64 STC 1; AIR 1987 SC 27 is adverted to. In that decision the Supreme Court has specifically held that providing procedure for disbursement of amounts wrongly realised by a dealer as tax is within the legislative competence of the State Leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stay order was in force or any appeal or other proceeding in respect thereof was pending shall be excluded. (3) If the assessing authority in the course of any proceeding under this Act, or otherwise has reason to believe that any person has become liable to a penalty with or without forfeiture of any sum under subsection (1) such authority shall serve on such person a notice in the prescribed form requiring him on a date and at a place specified in the notice to attend and show cause why a penalty with or without forfeiture of any sum as provided in sub-section (1) should not be imposed on him. (4) The assessing authority shall thereupon hold an enquiry and shall make such order as he thinks fit. (5) No prosecution for an offence under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whom such dealer had actually realised such amount or part, or to his legal representatives, and to no other person: Provided that no such claim shall be entertained after the expiry of three years from the date of the order of assessment or one year from the date of the final order on appeal, revision or reference, if any, in respect thereof, whichever is later. Explanation.-The expression 'final order on appeal, revision or reference' includes an order passed by the Supreme Court under article 32, article 132 or article 137, or by the High Court under article 226 or article 227 of the Constitution." Under the present section 30-C, if a dealer has collected any amount in excess, it is contemplated that the amount shall be forfeited eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absolute or no fault liability but must be preceded by mens rea must be rejected. The classical view that 'no mens rea, no crime' has long ago been eroded especially regarding economic crimes. Therefore, the contention that section 37(1) fastens a heavy liability regardless of fault has no force in depriving the forfeiture of the character of penalty." In any case, it is clear from the provisions of section 30-C that the assessing authority can find the consumer and pass appropriate orders for refund. Even if there is no such express provision, the constitutional validity of section 30-C cannot be challenged as beyond the scope of entry 54. In view of the aforesaid ratio decidendi of the decision of the Supreme Court in R.S. Joshi v. Ajit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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