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TMI Blog2012 (10) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... inserts, etc., supplied by the South Central Railway free of cost in order to ensure the quality of the ultimate product. In its sale invoices, it had incorporated the value of the items supplied free of cost and was paying excise duty and sales tax on such components to the Union Government and the State Government, respectively, and the South Central Railway had been reimbursing the same to the petitioner for the assessment years 1997-98, 1998-99, 1999-2000, 2000-01 and 2001-02. Assessment orders were passed by the jurisdictional assessing officers on various dates from 1999 to 2005 for the above assessment years both under the Central Sales Tax Act and the Andhra Pradesh General Sales Tax Act. While so, on April 25, 2003, the C.T.O. addressed a letter to the South Central Railway stating that the items supplied free of cost by the South Central Railway to the petitioner were not exigible to sales tax in the hands of the petitioner and the petitioner was not entitled to collect sales tax thereon from the South Central Railway. Thereupon the South Central Railway issued a notice August 20, 2003 to the petitioner proposing to recover a sum of Rs. 74,98,420 being the sales tax o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Andhra Pradesh General Sales Tax Act, 1957, for rectification of the assessment orders passed by the concerned assessing officers contending that the turn over relating to the items supplied free by the railways has to be deleted and the assessments have to be revised as taxes were paid by the petitioner under mistake. The said application was rejected on August 31, 2006 by the assessing officer holding that there was no clerical or arithmetical mistake apparent from the record and that the petitioner himself voluntarily declared and paid tax on the items freely supplied and had not objected to the levy of tax at any time. Challenging the same, the petitioner has filed these writ petitions on January 2, 2007. The details of the assessment years, dates of assessment, the authority who passed the assessment orders are given below writ petition wise: S. No. W.P. No. Assessment year Date Assessment order passed by Date of filing writ 1. 292/2007 2001-2002 23-03-2005 AC, LTU, Kurnool 02-01-2007 2. 293/2007 1999-2000 19-01-2002 CT0-1, Adoni 02-01-2007 3. 294/2007 1998-1999 04-12-2000 CT0-1, Adoni 02-01-2007 4. 295/2007 2000-2001 (CST) 17-03-2004 CT0-1, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er relatable to the items supplied free of cost by the railways, this court under article 226 of the Constitution of India cannot conduct an enquiry and determine the said issue and then grant relief of refund of tax thereon to the petitioner. We have considered the submissions of the parties. There is no dispute that the petitioner had filed returns before the assessing officers for the relevant assessment years without indicating which portion of its turnover for a particular assessment year is attributable to the items supplied free of cost by the South Central Railway. The petitioner has not also contended during the assessment proceedings that it was not liable to pay tax on the items supplied free of cost by the South Central Railway. It thus allowed the orders of assessment to become final (except for assessment year 2001-02 for which an appeal was filed but this contention was not raised). The petitioner in these writ petitions states that although the above issue has not been specifically raised in the assessment proceedings, this court under article 226 of the Constitution of India can go into the same by appreciating evidence and it can decide it. We are unable to agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this court throughout. The High Court was therefore justified in dismissing the writ petitions in limine." In State of Goa v. Leukoplast (India) Ltd. [1997] 105 STC 318 (SC); [1997] 4 SCC 82, the Supreme Court held that an assessee cannot contend in a writ petition bypassing the remedy under the Sales Tax Act of Goa, that goods produced by it are "drugs and medicines" exigible to lower tax and held as follows (page 323 in 105 STC): "15. 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 assesseecompany to bypass the statutory remedy and come to the court with a writ petition. These questions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose cases where no express period is provided. If it were a matter of a suit or application, either an appropriate article or the residuary article would have applied. But a petition under article 32 is not a suit and it is also not a petition or an application to which the Limitation Act applies. To put curbs in the way of enforcement of fundamental rights through legislative action might well be questioned under article 13(2). The reason is also quite clear. If a short period of limitation were prescribed the fundamental right might well be frustrated. Prescribing too long a period might enable stale claims to be made to the detriment of other rights which might emerge. 10. If then there is no period prescribed what is the standard for this court to follow? I should say that utmost expedition is the sine qua non for such claims. The party aggrieved must move the court at the earliest possible time and explain satisfactorily all semblance of delay. I am not indicating any period which may be regarded as the ultimate limit of action for that would be taking upon myself legislative functions. In England a period of 6 months has been provided statutorily, but that could be because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and circumstances of each case, not to entertain such application; and (2) in all the cases in which their Lordships of the Supreme Court had given relief the levy, assessment and collection had been made either under a law which was made without legislative competence or that there was some constitutional inhibition or certain terms specified in the Constitution for levying the tax had not been complied with. In both these cases, it will be observed that the orders levying the tax themselves being void, the money paid thereunder would be money paid under a mistake of law, because both the parties did not know until the final decision was given that the tax was not recoverable or payable. In such cases, civil suits were not barred to recover moneys and consequently writ petitions also could be filed to recover them. ... 16. It is, therefore, evident that where an order is passed by the sales tax authorities in exercise of the jurisdiction vested in them under the Act, no suit can be filed; but if an order is passed under the provisions which are ultra vires, illegal or void, the sales tax authorities not having jurisdiction to determine the question of vires, a civil suit will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the activity of building construction done by it to a non-profit organization for the period between February 2005 and February 2007 which was actually not exigible to service tax in view of a circular dated September 17, 2004 issued by the Department. It confirmed the view of the learned Single judge that since service tax was exempted, what was paid by the petitioner under a mistaken notion would not be "service tax" payable in law and the Department had no authority to retain the said amount. The court also held that it will not amount to duty of excise to attract the period of limitation of one year in section 11B of the Act and that it would be outside the purview of section 11B of the Act. The said case however did not decide that refund of tax paid under mistake of law should be refunded even if the claim for refund is made beyond the period of three years from the date of assessment and where the statutory remedies have not been availed of by the assessee, like the present case. In fact in the said case, the writ jurisdiction was invoked only after the assessee failed to get a refund before the statutory authorities. In our view, the said decision is clearly distinguish ..... X X X X Extracts X X X X X X X X Extracts X X X X
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