9911796707
TMI Blog2007 (4) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... any (in short, "RTC") had placed an order with one Sinexim Co.(P) Limited, Singapore for purchase of 12,000 metric tonnes of dun peas grown in Australia at USD 208.50 per metric tonne. As RTC did not have the requisite expertise for importing such goods, it had approached the petitioner's branch at Kolkata to arrange the imports and accordingly, a Memorandum of Understanding (MOU) was entered into between MMTC, Kolkatta and RTC on March 15, 1999. As per clause 7 of the MOU, MMTC, Kolkatta would be entitled to a margin of one per cent of c.i.f. value shown in the B/L for its services and as per clause 8, the sales tax liability would be borne by RTC and based on this MOU, dun peas were shipped to Tuticorin port from Singapore. (c) RTC appointed M/s.S.I.Paramasiva Nadar & Sons as its C & F agent at Tuticorin and M/s.Manish Mercantile Agency, Chennai (in short, "MMA") as its selling agent to sell the imported dun peas. MMA sold the consignment in Tamil Nadu for Rs.13,29,54,886 and paid a sum of Rs.53,18,195.44 as sales tax to the CTO, Peddunaickenpet, South Assessment Circle. The Enforcement Wing officials, after an investigation into the import of dun peas, had sent a D3 proposal t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders directing Paramasivam Nadar & Sons to deliver the goods to BHP India (P) Ltd., and as such, the petitioner had effected sales to BHP India (P) Ltd., which amounts to sales within Tamil Nadu and hence, the impugned transactions are liable to tax under the TNGST Act. Thus, it is the case of the respondent that after issuance of a pre-assessment notice dated February 19, 2003 and after duly considering the objections filed by the petitioner, the detailed assessment order dated March 11, 2004 was passed levying a taxof Rs.59,98,869 and a penalty of Rs.1,21,06,958 and the same is perfectly in order and does not warrant interference. Heard Mr.K. Ramagopal, learned counsel for the petitioner and Mr.Haja Naziruddin, learned Special Government Pleader (Taxes). The first and foremost contention of Mr.Ramagopal is that the respondent has not acted independently and has rather been influenced by the enforcement wing which had directed the levy and hence, the impugned order is liable to be quashed. Secondly, it is his strenuous contention that dun peas has been imported by Kolkata buyers and the petitioner had only played the role of an agent of RTC, Kolkata in import for service char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Act, they must act independently and impartially." Further reliance has been placed by the counsel for the petitioner on a judgment of this court in the matter of Pizzeria Fast Foods Restaurant (Madras) Pvt.Ltd.v.Commissioner of Commercial Taxes, Chennai reported in [2005] 140 STC 97 on his contention that a quasi-judicial authority cannot be bound by the orders of his superiors and the relevant portion reads as under (page 108): ". . . However, when the sales tax authorities are acting in a judicial or quasi-judicial capacity, in our opinion, they cannot be bound by the order of the Commissioner, because to take a contrary view would mean interference by the executive in a judicial function. When the assessing authority under the Sales Tax Act (or the appellate authority) decides a case, he is functioning in a judicial capacity (even though he may be a sales tax authority). Hence, when he is acting in a judicial capacity, he should not feel bound by any clarification issued by the Commissioner, as such clarifications under section 28A are not binding on him when he is functioning in a judicial capacity, and they are only binding when he is functioning in an admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 or local sales subject to sales tax, is a question of fact and the same cannot be decided in the present writ petition and as such, it is liable to be dismissed in limine on the ground that the petitioner has by-passed the statutory appellate remedy available to it. In support of this contention, the learned counsel has placed reliance on a judgment of the Supreme Court in the matter of State of Goa v.Leukoplast (India) Ltd. reported in [1997] 105 STC 318 and the relevant para reads as under: (para 13) "In our view, whether the products manufactured by the assessee can be treated as 'drugs or medicines' cannot be answered straightaway. The medicinal content of the products, if any, has to be ascertained. Its curative function has to be found out. Can the product be called a medicament at all? Is it used to cure or alleviate or to prevent disease or to restore health or to preserve health? Are these products treated as drugs or medicines in common parlance? These are basically questions of fact. There was no reason for the assessee-company to by-pass the statutory remedy and come to the court with a writ petition. These questions basically of fact should be agitated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eas made by the former as per the MOU entered into between the petitioner and RTC, it is the case of the respondent that it is only the petitioner which had imported dun peas from Singapore and had sold the same to dealers in Tamil Nadu and the documents on the side of the petitioner are only found to have been built up subsequent to investigation by Enforcement Wing and formulation of D3 proposals. Similarly, when the petitioner has contended that RTC has appointed Paramasivam Nadar & Sons as RTCs agent, it is the contention of the respondent that the said agent has acted on behalf of the petitioner. To ascertain as to under whom Paramasivam Nadar & Sons were acting as agent, there is no record placed before this court. Though the petitioner has contended that the respondent, while passing the impugned order, has acted under the influence of the Commissioner of Commercial Taxes, who had directed him to complete the assessment as per D3 proposal, without going into the merits of the case, it has not let in, as evidence, any record, to that effect. The only documents available in this regard are the letter dated April 30, 2003 sent by the erstwhile Commercial Tax Officer, Chennai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case? (e) Whether an opportunity of personal hearing was afforded to the petitioner before issuance of the impugned order? It is to be pointed out in this context that answers to the above questions could be found only on the basis of certain important documents such as bill of lading, bill of entry, delivery orders issued by MMTC and so on, which have not been produced by either side to substantiate their respective case. Undisputedly, these are all purely ticklish disputed questions of fact. The learned counsel for the petitioner has contended that this court can exercise its extraordinary jurisdiction under article 226 of the Constitution of India in the event of gross injustice inflicted on a party, by placing reliance on the judgment of the Supreme Court in the case of State of Tripura v.Manoranjan Chakraborty reported in [2001] 122 STC 594. In the case on hand, in the absence of relevant records on the file of this court to find out answers to the questions, as already stated, based on which the point for consideration has to be determined, it cannot be concluded that any injustice, much less grave injustice, has been inflicted on the petitioner by the respondent. As s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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