TMI Blog2011 (11) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... he State of Arunachal Pradesh. As a dealer of the Maruti Udyog Ltd., the petitioner/respondent carries on the business of selling and servicing of motor vehicles of the said company. The respondent sells motor vehicles of the said company to the customers in the State of Arunachal Pradesh, as well as in the other States in the course of inter-State trade and commerce. The sales of motor vehicles within the State of Arunachal Pradesh are taxable at the rate of 12 per cent under the Arunachal Pradesh Sales Tax Act, 1999 (hereinafter referred to as, the Act of 1999 ). In the meantime, the State Government, in exercise of its powers under section 8(5)(b) of the Central Sales Tax Act, 1956 (hereinafter referred to as, the Act of 1956 ) directed, vide Notification No. TAX/436/95/Part III, dated May 2, 2001 (annexure A), that Central sales tax in respect of motor vehicles sold to any person, in course of inter-State trade and commerce by any dealer having his place of business in the State of Arunachal Pradesh and dealing with such motor vehicles, shall, with immediate effect, be calculated at the rate of two per cent on the turnover of such sale. The respondent/petitioner acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Excise, the decision of the Government that the sale of motor vehicles, not being sale in course of inter-State trade and commerce, Arunachal Pradesh Sales Tax at the rate of 12 per cent shall be charged from the buyers coming from outside the State. The respondent/petitioner submitted another representation dated May 15, 2002, to appellant No. 4, namely, Deputy Commissioner, Tax and Excise, praying for, inter alia, enforcement of the notification dated May 2, 2001 (annexure A) in letter and spirit and also not to levy tax at the rate of 12 per cent on the inter-State sale of vehicles. The respondent/petitioner contended that although no express order was passed by the authority rejecting his representation, but it was improperly treated as an appeal. The said representation, according to the respondent/writ petitioner should be deemed to have been rejected, when appellant No. 5 issued a notice dated May 27, 2002 (annexure H) directing the petitioner to show cause as to why local sales tax amounting ₹ 2,94,19,896 only paid in short, should not be recovered within one month therefrom and as to why penalty should not be imposed under section 22G of the Act of 1999. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er under the pretext of inter-State sale and this embargo on the sale of vehicles to the customers outside the State was a temporary measure adopted by the Government and, therefore, there was no violation of the provisions of articles 301 and 304 of the Constitution of India. The learned Additional-Advocate General further pointed out that the writ petitioner-respondent had preferred an appeal against the order dated February 14, 2002, before respondent No. 2, i.e., Deputy Commissioner, Tax and Excise, Government of Arunachal Pradesh, in terms of the provisions of section 33(1) of the Act of 1999. According to the learned counsel for the appellant, since the petitioner-respondent was evading payment of local sales tax, he was served with another notice dated July 25, 2002, asking him to show cause as to why local sales tax paid in short should not be recovered from him. However, instead of submitting reply to the assessing authority, the petitioner-respondent approached the court by filing writ petition. Learned counsel for the, appellant submitted that since the alternative remedy by way of appeal under the appropriate provision of law is available, writ petition seeking simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able for having sold vehicles to a customer outside the State and sale of vehicle to the State outside the State of Arunachal Pradesh cannot be deemed to be intra-State sale warranting liability of local sales tax of 12 per cent. Mr. K. Ete, learned counsel for the State-appellant, submitted that the writ petition filed by the petitioner/respondent challenging the order passed by the appellant-Department is appellable under the Sales Tax Act. Therefore, the writ petition would not be maintainable when adequate alternative remedy is available by way of filing appeal. In this context, the decision of this court in National Plywood Industries v. Union of India reported in [2007] 1 GLT 584 would be very relevant, where it was observed that the apex court in the decision reported in [1998] 8 SCC 1 (Whirlpool Corporation v. Registrar of Trade Marks, Mumbai) held that the High Court exercising its power under article 226 of the Constitution of India, has a discretion to entertain or not to entertain a writ petition and that the High Court has imposed upon itself certain restrictions, one of which is that if an effective and efficacious remedy is available, the High Court would not n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal. . . However, Mr. S. Saikia, learned counsel for the petitioner-respondent, referring to the decision of Tata Iron and Steel Co. Limited v. S. R. Sarkar reported in [1960] 11 STC 655 (SC), would submit that the honourable Supreme Court has held that the threat by the State to realise, without authority of law, takes away from the citizen by coercive machinery, and infringes the fundamental rights guaranteed under article 19(1)(g) of the Constitution of India, which gives him a right to seek relief by a petition under the Constitution. In this context, we consider it pertinent to depict hereinbelow the discussion made by the learned single judge which is worth quoting in this judgment (pages 476-479 in 135 STC):- The present writ application has been filed challenging not only the show-cause notice, dated May 27, 2002, but also the communications, dated February 7, 2002, February 27, 2002, March 14, 2002 and May 7, 2002, aforementioned issued by the respondents. The show-cause notice is the cumulative effect of the various notices/letters/circulars issued by the respondent-authorities denying the benefit of sales tax exemption/concession granted by the notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rfered with by the High Court in exercise of its powers under article 226 of the Constitution of India even at the very initial stage, when such a demand is raised. Viewed from this angle, the show-cause notice, which proceeds on the assumptions, namely,- (i) that in order to constitute a contract of sale during the course of inter-State trade and commerce, the contract must be supported by materials in writing, (ii) the vehicles, in question, could have been sold to only registered dealers and not to individuals, and/or (iii) that a declaration in form C ought to have been furnished by the petitioner in respect of each sale of vehicle to enable it, (i.e., the petitioner) to claim benefits of the notification (annexure A), although no such pre-conditions is required to be fulfilled by the petitioner to be able to claim the benefits of the notification (annexure A), the very issuance of the show-cause notice is, at its very threshold, being on considerations and assumptions of law, which are extraneous and untenable make the notice without jurisdiction and deserves to be interfered with. .... In the case at hand, it has already been ind ..... 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