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TMI Blog2018 (5) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 5304/- in favour of the purchasers for the transits made between 16.12.1982 to 21.10.1983, even though the way bills and other documents stood in the name of the firm, plaintiff no.1. Subsequently, the defendant no.6 issued receipts for Rs. 5304/- in favour of the purchasers for the transits made between 12.01.1983 to 29.04.1983. The plaintiffs filed a petition before the defendants on 05.01.1983 for refund of the sales tax amounting to Rs. 9996/-. But then, no refund was made. The firm applied for registration under Sec.9 of the Orissa Sales Tax Act (in short, "OST Act") with effect from 29.01.1983 as its gross turnover exceeded Rs. 50,000/-. The firm was registered. The plaintiff no.1 paid sales tax on turnover for the turnover of the year ending 1982-83. The defendant no.4 allowed deduction of tax collected under Rule 36 of the Orissa Sales Tax Rules, 1947. But then, the defendant no.6 did not deduct the tax collected during the period from 16.12.1982 to 29.01.1983. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra after issuing notice under Sec.80 C.P.C. 3. The defendant nos.1 to 5 entered contest and filed written statement stating, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nty, learned A.S.C. (C.T.) for the appellants, submitted that Sec.22 of the OST Act provides bar to certain proceedings. Any person aggrieved by the order of assessment for a direct payment of interest or penalty may file appeal under Sec.23(1) of the OST Act within thirty days. Thus the jurisdiction of the civil court is barred. He placed reliance on the decisions of the apex Court in the case of Dhulabhai etc. and others vs. State of Madhya Pradesh and another, AIR 1969 SC 78 and this Court in the cases of State of Orissa and others vs. Orissa Cement Ltd., (1988) 68 STC 334 Orissa and Secretary to Government of Orissa, Finance Department vs. Straw Products Limited, (1987) 67 STC 284 Orissa. 8. Per contra, Mr. Kar, learned counsel for the respondents, submitted that the gross turnover of the plaintiffs had not exceeded Rs. 50,000/-. Plaintiff-firm was not a registered dealer at the relevant point of time, when tax was collected in the check gate. The plaintiff was not liable to pay tax. There is no provision in the Act to file appeal. Secs.22 and 23 of the OST Act cannot be pressed into service. The civil court has jurisdiction to entertain the suit. There is no infirmity in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the Section brings out unequivocally that all civil suits are cognizable unless barred. What is meant by it is explained further by widening the ambit of the Section by use of the word `shall' and the expression, `all suits of a civil nature' unless `expressly of impliedly barred'. 28. Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of right. The word `shall' makes it mandatory. No court can refuse to entertain a suit if it is of description mentioned in the Section. That is amplified by use of `expression, `all suits of civil nature'. xxx xxx xxx The word 'civil nature' is wider than the word 'civil proceeding'. The Section would, therefore, be available in every case where the dispute has the characteristic of affecting one's rights which are not only civil but of civil nature." 13. On the anvil of the decisions cited supra, the instant appeal may be examined. Sec.22 of the OST Act provides that no assessment made or purporting to have been made and no order passed or purporting to have been passed under provisions of this Act and the rules made thereunder by the Commissioner, Tribunal or any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1956 read with Sec.13(8) of the OST Act, 1947 as it stood at the relevant time. According to the plaintiff, they had paid the tax due from it regularly in due time for the financial years 1963-64 to 1968-69 the last such payment being made on 30th April, 1969 for the month ending 31st March, 1969. The plaintiff filed application for refund on 11th November, 1969 which was rejected by the Assistant Commissioner on 28th January, 1970. The plaintiff carried a revision before the Commissioner of Commercial Taxes, Orissa under Rule 22 of the Central Sales Tax (Orissa) Rules, 1967 read with Sec.23(4) of the State Act as against the order of assessment passed by the Sales Tax Officer, but no revision was made against the order of Assistant Commissioner refusing to allow the rebate. The Commissioner rejected the revision against the assessment as not admissible since he held that proceedings of assessment under the Act are appelable after which a reference lies to this Court and hence the revision was not entertainable. This Court held that the question of rebate is one relating to the assessment process itself. A rebate is to be allowed on the basis of the return submitted by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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