TMI Blog2013 (6) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... ves a special remedy for enforcing it, the remedy provided by that statute only must be availed of. Ordinarily, relief under Article 226/227 of the Constitution of India, is not available, if an efficacious alternative remedy is available to an aggrieved person. As petitioner does not dispute that there is an efficacious statutory alternative remedy by approaching the Commissioner under Section 59 of the Act, but since vires of the notification has been challenged and as such, alternative remedy is not a bar, to which respondents submits that the Appellate Authority, while exercising the appellate jurisdiction, can also look into the legality of the notification and has every power to annul it, if the same is in breach of law. He further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) of the UP VAT Act, 2008, the petitioner is liable to pay tax on Steel Tubes and Pipes @ 4% under UP Act, 2008. In the meantime, a notification dated 29.9.2008 was issued, whereby the Entry 94 has been omitted, meaning thereby the petitioner has to pay tax @ 12.5%. Thereafter, by another notification dated 15.9.2008, the Entry 94 was reinserted. Grievance of the petitioner is that from 29.9.2008 to 15.1.2009, the goods is being treated as 'unclassified' and 12.5% tax is being levied on it. Being aggrieved by the action of the respondents, petitioner-company has filed the instant writ petition claiming following reliefs:- (i) issue a writ, order or direction declaring Notification No.KA.NI-2-2758/XI-9(1) /08-U.P. Act-5-2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther firm cannot be interfered as no order of 3rd party be quashed and as such, after arguing the matter at length, counsel for the petitioner submits that he does not want to press the relief No.iii, which pertains to quashing of the orders passed by competent authority against M/s Bharat Pipe and Sanitary Stores. Inviting our attention towards the relief sought for by the petitioners, Mr. H.P. Srivastava, learned Additional Chief Standing Counsel submits that in respect of relief Nos.(i) and (ii), the petitioner has an alternative remedy in approaching the Appellate Authority under Section 59 of the Act, to which learned Counsel for the petitioner, relying upon the judgment of Whirlpool Corporation versus Registrar of Trade Marks, Mumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of Whirlpool (supra), it has further been held that law as to the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite of the alternative statutory remedy, is not affected, specially in a case where the authority against whom the Writ is filed is shown to have no jurisdiction or had purported to usurp jurisdiction without any legal foundation. It is now well recognized principle that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. Ordinarily, relief under Article 226/227 of the Constitution of India, is not available, if an efficacious alternative remedy is avai ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
