TMI Blog2007 (7) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... assing the following order: These matters stand covered by the decision of this court in Ashok Leyland Ltd. v. State of Tamil Nadu [2004] 134 STC 473 (SC); [2004] 1 SCALE 224 and, therefore, they are disposed of in terms of the said decision. The appellants/petitioners may approach the appropriate forum within a period of six weeks. In case such a petition is filed, it will be entertained and decided on merits. The appellant/petitioners may apply afresh for interim order before the appropriate forum. The appellant then filed writ petitions in the High Court of Madhya Pradesh (Indore Bench) questioning the Central sales tax assessments and the orders passed in revision. It appears that the said writ petitions are pending. Chapter VI of the CST Act The Central Government by its notification dated March 17, 2005 brought into force the provisions of Chapter VI of the Central Sales Tax Act, 1956 which bears the heading Authority to settle disputes in course of inter-State trade or commerce . It may be mentioned that Chapter VI (Containing sections 19 to 26) was inserted by Act 41 of 2001, and it remained dormant till the notification was issued by the Central Government o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Central Sales Tax (Amendment) Act, 2005, all appeals (except appeals against orders of the highest appellate authority of the State) pending before the authority notified under sub-section (1) of section 24 shall stand transferred together with the records thereof to the highest appellate authority of the concerned State. (2) Such highest appellate authority of the State to which such appeal has been transferred under sub-section (1) on receipt of such records shall proceed to deal with such appeal so far as may be in the same manner as in the case of an appeal filed before such highest appellate authority of the State according to the general sales tax law (1)Here italicised. of the appropriate State, from the stage which was reached before such transfer or from any earlier stage or de novo as such highest appellate authority of the State may deem fit: Provided that where the highest appellate authority finds that the appellant has not availed of the opportunity of filing first appeal before the appellate authority, such case shall be forwarded to such authority. Thus, under the amended section 25, the appeals pending before this authority excepting those p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present application for recalling the order passed by this authority on March 2, 2006 has been filed. It may be stated that this application for recalling the earlier order of transfer is confined to the assessment years 1986-87, 1989-90 and 1990-91 only. Relevant provisions of M.P. Commercial Tax Act To resolve the issue, it is necessary to advert to the scheme of the Madhya Pradesh Commercial Tax Act (Madhya Pradesh Vanijyik Kar Adhiniyam), 1994 relating to appeals and revisions. Sections 61 and 62 are the relevant sections. Any dealer or person aggrieved by an order of assessment or reassessment with or without penalty has a right of first appeal to the Appellate Deputy Commissioner of Commercial Taxes [vide section 61(1)]. Against the order passed by the first appellate authority, the assessee has two remedies. Either it can file an appeal to the Tribunal under section 61(2) or it may prefer revision to the Commissioner under section 62(1) [vide proviso to section 61(2)]. The proviso to section 61(2) further enjoins that where the assessee opts to file revision under section 62(1), it is precluded from filing second appeal to the Tribunal. That means, the second appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal under this section against which an application for revision is filed to the Commissioner under sub-section (1) of section 62, the order passed in revision shall be final . . . This sub-section which provides for finality of an order of revision does not in terms come into play in the instant case as no first appeal was filed and no order of appellate authority was subjected to revision. However, the fact remains that there is specific provision under the M.P. Act providing for appeal to the Tribunal against an order passed in revision by the Commissioner under section 62(1). This in brief is the scheme of appeals and revisions under the M.P. Commercial Tax Act. What emerges from the above analysis is: (1) No appeal to Tribunal is provided against the revisional order passed by the Commissioner under section 62(1) on an application filed by the assessee. (2) However, if the Commissioner exercises the power of revision suo motu under section 62(3) in the interests of Revenue and passes an order prejudicial to the assessee, then, the assessee has a right to appeal to the Tribunal against that order. An analysis of CST amendments (Act 41 of 2001 and Act 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now called upon to adjudicate an appeal filed against the highest A. A. of the State in respect of a dispute falling under section 6A read with section 9 of the CST Act, which has inter-State ramifications, notwithstanding anything contained in the general sales tax law of a State. Thus a special forum at a national level for deciding the appeal at the final stage has been created. Keeping in view the peculiar nature of the disputes that arise involving more than one State, the law-makers wanted to provide a comprehensive remedy to the assessees who are often faced with multiple demands of taxes on the same transaction. The fact that such controversies have an impact on the flow of inter-State trade and commerce as guaranteed by article 301 of the Constitution may also be one of the considerations that weighed with the Parliament in engrafting Chapter VI into the CST Act. It is also relevant to mention that the Supreme Court of India, in the case of Ashok Leyland Ltd. v. Union of India [1997] 105 STC 152 (SC) pointed out the need to create a Central mechanism to resolve such interState disputes. The crucial point and contentions The crucial question to be considered now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that no appeal lies to this authority against the order passed in revision, took strong exception to the applicant seeking other remedies while keeping the writ petitions pending. Contentions examined in the light of amended provisions of the CST Act and the State Act. On deep consideration, we find no merit in the contentions advanced on behalf of the applicant. The whole argument proceeds on the premise that the Tribunal which is the highest A.A. cannot deal with the appeal for the simple reason that the State Act (M.P. Commercial Tax Act) does not provide for appeal to the Tribunal directly against the assessment made by the primary authority or against the order passed on revision under section 62(1) of the Act. But, the argument overlooks the fact that under Chapter VI of the CST Act, a special remedy and special forum has been created to cope up with the situations giving rise to multiple tax demands on the same transaction of transfer of goods from one State to another. Before the dispute reaches the apex adjudicatory body, namely, CSTAA, it was considered expedient that the highest A.A. of the State should first deal with the appeal and record its findings. That is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Chapter VI, the provisions of section 9(3) get pro tanto modified in so far as the adjudication of inter-State disputes falling within the purview of sections 6A and 9 of the CST Act. Viewed from another angle, section 9(3) should now be read harmoniously with the new provisions of Chapter VI which carved out special remedies for the redressal of assessees' grievances consistent with the avowed purpose of Chapter VI. It, therefore, admits of no doubt that the provisions in the CST Act relating to appeals and matters connected therewith even if they are at variance with the provisions of the State Act, will have to be given effect to. In such a case, there is really no conflict. The Central Sales Tax Act and the State Sales Tax Acts are traceable to the legislative powers enumerated in different Lists of the Constitution and they deal with different though allied subjects of taxation. At the cost of repetition it is reiterated that in the matter of enforcing the Central Sales Tax Act and the collection of CST, the procedural and machinery provisions of the State Acts do not operate by their own force but they have their provenance in and draw their sustenance from the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in revision cannot be the subject-matter of first appeal under the Act. Leaving aside the provisions of the State Act for the time being, it would be wholly inappropriate and improper on the part of the Tribunal to forward the appeal to the first appellate authority despite the decision taken by a superior authority in whom almost all the powers under the State Act are vested. The first appellate authority, confronted with the order passed by the Commissioner, cannot be expected to act independently and to reach a conclusion at variance with that of the order passed by him. The basic assumption underlying the proviso to section 25(2) is that the first appellate authority does not have any legal impediment to deal with the appeal independently. There is no question of appeal being forwarded to the first appellate authority which is not competent to decide either because of statutory bar or legal disqualification to hear the appeal. Thus, in the instant case, the Tribunal (highest A.A. of the State) cannot invoke the said proviso and forward the appeal to the first appellate authority. In the circumstances, the Tribunal itself has to decide the appeal in terms of the mandate con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an [1851] 117 ER 1164 were quoted with approval in Abraham case [1967] 20 STC 367 (SC); AIR 1967 SC 1825 (page 372 of STC): . . . the words 'in manner and form' refer only 'to the mode in which the thing is to be done, and do not introduce anything from the Act referred to as to the thing which is to be done or the time for doing it'. The procedure may pertain to pre-hearing stage or the stage of hearing or its disposal. The expression deal with the appeal in the same manner occurring in section 25(2) cannot be construed as to concede discretion to the Tribunal to reject the appeal as not maintainable under the State Sales Tax Act. Such a course if adopted would fly in the face of the explicit mandate addressed to the Tribunal (highest A.A. of the State) to proceed to deal with the (transferred) appeal. The concluding part of sub-section (2) from the stage it was reached before such transfer or from any earlier stage or de novo as such highest A.A. of the State may deem fit also lend support to the view that the Tribunal is bound to deal with the appeal transferred to it on merits unless the case falls within the proviso. The said words in the concluding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainable There is one last point which has to be considered before parting with the case. In the course of hearing of this application, a doubt was expressed by us whether under the pre-amended provisions of Chapter VI, the appeal preferred against the revisional order of the Commissioner was maintainable before this authority because if the appeals filed before this authority in 2005 were incompetent, the question of transferring such appeals to the Tribunal does not arise. We are, however, inclined to take the view that the appeals were maintainable under the unamended section 20(1) of the CST Act. Section 20(1) as it then stood provided for appeal to the CSTAA and under that provision, an appeal lay against any order of the assessing authority made under section 6A read with section 9 of the Act if it relates to any dispute concerning the sale of goods effected in the course of interState trade. It is possible to contend that the assessment order has got merged with the order of the revisional authority whom the applicant had approached under section 62(1) of the M.P. Commercial Tax Act and an appeal against such revisional order was not provided for under section 20(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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