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TMI Blog2011 (12) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... ted June 29, 2001 as modified in appellate order in appeal CST No. 56/2001, dated August 14, 2003. The modification was done by the Appellate Assistant Commissioner, Coimbatore. 4. In the third writ petition (W.P. (MD) No. 1613 of 2004), the challenge is to an order, dated June 29, 2001, passed by the Commercial Tax Officer, P.N. Palayam, Coimbatore and modified by the Appellate Assistant Commissioner, Coimbatore, dated August 14, 2003 in appeal CST No. 55 of 2001. 5. In the fourth writ petition (W.P. (MD) No. 1630 of 2004) the challenge is to an order of the Commercial Tax Officer, P.N. Palayam, Coimbatore, dated January 8, 2001 and a further relief of restraining him to subject the stock transfers as inter-State sales. 6. In the fifth writ petition (W.P. (MD) No. 1647 of 2004) the challenge is to the order of the fourth respondent, viz., the Assistant Commissioner (Assessment), Sales Tax Office, Special Circle, Kozhicode, Kerala State, dated September 18, 1999, passed under the Kerala General Sales Tax Act and for a further direction to the said officer at Kerala to refund the sales tax to the petitioner. 7. In the sixth writ petition (W.P. (MD) No. 1648 of 2004) the prayer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner was involved in the assessment order being passed by the authority under the Kerala General Sales Tax Act. The petitioner in the affidavit filed in support of those four writ petitions has not even stated as to why he has chosen to avail of the forum at Chennai. Even in the affidavit, which is more or less a stereo type affidavit, it is only stated that the factory is situated at Thamaraipadi, Dindigul, within the jurisdiction of this court. But, whereas he himself has stated that in some of the other cases that he had a remedy to go before the Commercial Tax Officer at Coimbatore and followed by a Sales Tax Appellate Tribunal, Additional Bench, at Coimbatore. 12. In fact, the same petitioner had filed an appeal in CST.No.55 of 2001 and C.S.T.No.56 of 2001 before the Appellate Assistant Commissioner, Coimbatore and when he got an adverse order on 14.08.2003 in respect of assessment year 1991-92 and 1990-91, he filed appeal before the Tamil Nadu Sales Tax Appellate Tribunal, Additional Bench, Coimbatore. For reasons best known he moved the Tribunal showing the pendency of the proceedings and also his inclination to move the Madurai Bench, withdrew those appeals in Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial authority. In such circumstances, if he took treat that some portion of the cause of action arose was in Coimbatore District, then the Principal Bench is the only Bench he could have filed such a writ petition. 15. In all these matters, the Commercial Tax Officer P.N.Palayam Circle, Coimbatore, has filed a common counter affidavit claiming that the appellate Assistant Commissioner, on verification of the records, found that it is not a stock transfer and it was a sale to the dealers at Kerala State and therefore, treating that as a first sale. The second transaction was treated as interstate sale liable for assessment of tax under the CST Act. It is also found that it is only a camouflage done by the petitioner, as a branch transfer but in actual fact of the matter was, the first sales was in Kerala, which was assessable tax and he has also sought for refund of tax from those authorities, which is evident from W.P.No.1630 of 2004 and W.P.No.1647 to 1650 of 2004. 16. A reliance was also placed upon the Judgment of the Supreme Court relying on principle of such matters relating to Ashok Leyland Ltd., Vs. Union of India reported in [1997] 105 STC 152 (SC). Since the petitioner ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in L.Chandra Kumar v. Union of India. However, that does not answer the question of maintainability of a writ petition which seeks to impugn an order declining dispensation of predeposit of penalty by the Appellate Tribunal. 31.When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction." 28.In the very same case, on the question of discretion under Article 226 it has been held in paragraphs 34, 36 and 38, which are as follows: "34.Again in Titaghur Paper Mills Co. Ltd. v. State of Orissa9 in the background of taxation laws, a three-Judge Bench of this Court apart from reiterating the principle of exercise of writ jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent it was further held: (Mafatlal Industries Ltd. case14, SCC p.635c, para 108) (x) .... The power under Article 226 is conceived to serve the ends of law and not to transgress them." ..... 38.The learned counsel for the respondents relied on a judgment of this Court in Seth Chand Ratan v. Pandit Durga Prasad, 2003 (5) SCC 399. The learned counsel relied on para 13 of the said judgment which, inter alia, lays down the principle, namely, when a right or liability is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. However, the aforesaid principle is subject to one exception, namely, where there is a complete lack of jurisdiction of the tribunal to take action or there has been a violation of rules of natural justice or where the tribunal acted under a provision of law which is declared ultra vires. In such cases, notwithstanding the existence of such a tribunal, the High Court can exercise its jurisdiction to grant relief." 19. Therefore, having found that such attempts are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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