TMI Blog1989 (8) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the case is that cement is declared to be a goods subject to tax at first point of sale in terms of the provisions contained in rule 93-H. By Notification No. 15236 CTA-12/78-F dated 22nd March, 1978, cement was declared to be taxable at the first point of sale inside the State of Orissa with effect from 1st April, 1978. Since no specific rate of tax was provided, it continued to be taxable at the rate applicable to articles in respect of which rates of taxation have not been provided for. At the relevant point of time it was 7 per cent, as the assessment years involved in these three writ applications are 1978-79 and 1979-80. White cement was made taxable at the rate of 10 per cent with effect from 1st October, 1977, and continued to be taxed at that rate till 31st March, 1982. The petitioners paid tax to their sellers being of the view that cement and white cement constitute the same commodity and therefore, white cement is to be taxed at the first point of sale and the sellers of the petitioners being the first sellers were entitled to collect tax from the petitioners. Assessments were completed under section 12(4) of the Act in each of the cases accepting that white cem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is submitted that the assessment as made is without jurisdiction, illegal and void. 4.. Mr. A.B. Misra, learned Standing Counsel, appearing on behalf of the Revenue raised a preliminary objection as to the maintainability of the writ applications on the ground that effective alternative remedy by way of filing appeals is available to the petitioners. They having not done so, the writ applications are not maintainable and are liable to be dismissed. In support of this contention, he placed strong reliance on a decision of the Supreme Court reported in [1983] 53 STC 315; AIR 1983 SC 603 (Titaghur Paper Mills Co. Ltd. v. State of Orissa). So far as the challenge to the prescription of two different rates of taxes is concerned, Mr. Misra submitted that the State has ample power to provide for different rates of taxes for different commodities even though they may belong to same specie. According to him, the intention of the legislature is apparent from the fact that notwithstanding rule 93-H, the legislature in its wisdom has levied tax on white cement at the rate of 10 per cent. He further submitted that the prayer for adjustment of tax is not acceptable in the absence of any s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were issued. Neither the State nor the Revenue has filed a counter-affidavit and at this belated stage it would be a gross miscarriage of justice if the writ applications are not entertained on the ground of availability of alternative remedy. Considering the similar prayer by the Revenue, the Allahabad High Court turned it down on the ground that nearly a decade had passed from the date of admission till the date of hearing of the writ application. See [1982] 50 STC 183 (M.P. Poddar and Company v. Additional Judge (Revisions), Sales Tax, Gorakhpur). Similar is the view expressed by other Courts. See 1974 Tax LR 1740 (MP) (Flour Food Ltd. v. Union of India) and 1975 Tax LR 1497 (Delhi) (Allied Motors Private Ltd. v. New Delhi Municipal Committee). In our jurisprudence it is not palatable to turn down the prayer for high prerogative writs on the negative plea of alternative remedy, since the root principle of law married to justice, is ubi jus ibi remedium. See [1988] 69 STC 290 (SC) (Salonah Tea Company Ltd. v. Superintendent of Taxes, Nowgong). Coming to the contention regarding cement and white cement being the same, we find that a similar question came up for consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trike down the rates. In the instant case, Mr. Mahanti, learned counsel for the petitioners, having given up the challenge as to the legality or otherwise in providing different rates of tax for cement and white cement, we do not propose to adjudicate that question. However, we may indicate that the State is not possessed of the power to make a distinction between commodities belonging to the same category unless there is some rational basis for discriminating between one commodity and another, as has been held by the Supreme Court in the case of Arya Vaidya Pharmacy [1989] 73 STC 346; AIR 1989 SC 1230. 7.. This Court had occasion to consider the legality of provisions for different rates of tax, where commodities belonged to the same specie. In one case, dispute had arisen as to whether sugar includes sugar-candy. Following the ratio of the decision of the Supreme Court in the case of State of Gujarat v. Sakarwala Brothers [1967] 19 STC 24, it was held that sugar includes sugar-candy. See [1982] 51 STC 75 (Orissa) (State of Orissa v. Satyabadi Sahu Sons). But subsequently while sugar continued to be tax-free as per serial No. 37, sugar-candy was subjected to levy of tax at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pholding the assessment made by both the circles and holding that both the circles had the jurisdiction to make the assessments, this Court held that there is no prohibition that the tax paid cannot be adjusted and in appropriate cases tax paid in the wrong circle had to be adjusted from the total tax payable. In the case of State of Orissa v. Sundarlal Mandholiwal [1976] 37 STC 409, a Full Bench of this Court held that there should not be occasion for double assessment and in case an assessee faces an assessment where all the turnover is taken into account, it would be open to him when he is called upon in different circles for the purposes of assessment, to show that he has already been assessed for the entire turnover and there is no question of assessing the said turnover twice. In the case of Keshrichand Pushraj v. Commissioner of Sales Tax [1976] 37 STC 417 [App.], this Court while considering a similar question also held that while purchase tax has been paid in one circle in respect of the gross turnover of both the places of business, there is no reason as to why the dealer should be pursued further. Therefore, while holding that the assessments were in order, the demands w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s useful historically in creating a remedy for certain cases of unjust enrichment. In our view the time has come at which the fiction should be abolished and the law placed on the firm ground of reasonable principle of unjust enrichment. The fiction is the algebra of law and a picturesque form of algebra besides. The Police Code (article 123), C.C. of Japan (article 703), Soviet Russia (articles 399-402), Chinese Code (article 179) and the Swiss Federal Code of Obligation (article 62) contain a general principle providing that unjust benefit must be returned. 10.. The same principle has been often discussed under the subject "restitution". A person holding title to property is under an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. Basis of the law should be restitution where it is unreasonable and unjust for the defendant to retain the benefit which he has received. The theory of implied contract still persists in law. "Restitution" means the restoring of anything unlawfully taken from another. It is most frequently used in the common law for setting them in possession of land and tenements that has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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