2010 (2) TMI 1061

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..... s to various customers scattering over a number of States. Returns were filed by the appellants showing turnover of the business dealt with various parties.   The manufacturer/dealer enjoys certain benefits of exemption of tax if necessary requisite declarations in forms D and F are produced. The assessing officer, it appears, in past dealt with, on production of form D and in some cases, D forms were not accepted holding the same not being genuine and in some cases there was no decision whether the forms were genuine or not. But it was noted that there was no movement of the goods covered by the said forms in respect of the transactions took place with the Bihar party. At one stage, the appellants/petitioners could not produce form .....

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..... stitute its own finding because simply it is not permissible; as judicial restraint is observed by the court following long tradition. It is submitted that despite production of F forms issued in connection with the transactions with the Bihar party, viz., "Sarbasree Ma Enterprise" (Aurangabad) Bihar, all the authorities have simply ignored the same. It appears from the observations and findings of the assessing officer as well as the appellate authority that there has been no evidence with regard to the movement and/or transportation of the goods covered by the said F forms. As such, the claim covered by those forms was not allowed. Smt. Seba Roy, appearing for the respondents contends that the appellants/petitioners are estopped from ra .....

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..... not supporting it. It may be argued that the relief claimed here might have been barred by the principles of issue estoppel or Order II, rule 2 of the Code of Civil Procedure read with rule 53 of the writ rules. We are of the view that the appellants/petitioners here have a Constitutional right to be subjected to payment of tax only in accordance with the provisions of law. If the law enjoins them a right of exemption on production of certain documents, such right really partakes the character of Constitutional right. Issue estoppel or bar, under Order II, rule 2 of the Code of Civil Procedure are of procedural nature and this bar must yield to the Constitutional right and so also to the fundamental right. We are of the view that justice .....

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