TMI Blog2021 (10) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Authority if the writ petitioner / dealer chooses to prefer an appeal as it turns heavily on facts. As already alluded to supra, 'Hans Chap Khaini' is a brand name and though the written submission talks about packets, it is understood that it is effectively sachets. The contents of sachets have to be necessarily gone into. One of the extracts from the impugned order makes it clear that the respondent in the impugned order has clearly gone into the ingredients and has even gone into process and making of 'nice tobacco'. Respondent has gone into and examined that products such as menthol, geru, lime an spices etc., are homogeneously mixed with the same either by a electric machine or by a manually operated machine. As all these details turn on facts, it would be appropriate that the Appellate Authority examines this if the writ petitioner chooses to file an appeal and therefore, this Court refrains itself from expressing any opinion on these aspects of the matter in this order. The writ petition is therefore dismissed albeit leaving a window open to the writ petitioner / dealer to file an appeal under Section of 51 of TNVAT Act if the writ petitioner choo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into it. 4. The crucial paragraph in the impugned order to which the attention of this Court is drawn is at Page 7 of the impugned order and the same reads as follows: 'Hence the dealer's claim that Hans Chap Khaini is a chewing tobacco and exempted from tax, is not acceptable. I find that the commodity Hans Chap Khaini is a taxable commodity @12.5% and the exemption claimed on a turnover of ₹ 1,65,79,000.00 for the year 2010-11 is disallowed and is assessed to tax at 12.5% as per the provisions of the TNVAT Act 2006.' 5. Learned counsel for writ petitioner, therefore, in effect submits that orders of higher authorities have been disregarded and on this ground, the impugned order warrants interference in writ jurisdiction. 6. Ms.Amirta Dinakaran, who accepted notice on behalf of lone respondent, submitted that impugned order is a reasoned order which has been made after giving sufficient opportunity to the writ petitioner i.e., ample and adequate opportunity to the writ petitioner to show-cause. Learned counsel adds that even personal hearings have been granted to the writ petitioner though it is not statutorily imperative. To be noted, this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation of the petitioner, deal with the each of the contentions raised and pass reasoned orders on merits and in accordance with law and communicate decision taken under written acknowledgement. In the event of any decision entailing adverse civil consequences, it would be certainly open to the petitioner to impeach the same before the proper forum in the manner recognized by Law. Though obvious, it is made clear that no opinion has been expressed by this Court on the correctness or otherwise on the merits of the controversy involved in the matter Hence the Hon'ble High Court had left the issue of taxability of the commodity Hans Chap Khaini dealt by the petitioner to be decided by the Assessing Officer. In view of the orders of the Hon'ble High Court, the revision petition filed by the dealer involving the same issue is remanded to the Assessing Authority for fresh consideration and passing necessary orders in accordance with law. Accordingly another personal hearing notice vide this office TIN.33291162380/2010-11 dated 17.2.2021 was issued to the dealer which was received on 17.2.2021 by the dealer. However, the dealer vide their letter dated 20.2.2021 request ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcial world as well as amongst the consumers. The quality, cost and liking amongst the consumers vary according to the material mixed with it. In the instant case the commodity scented khaini by brand name Hans Chap Khaini is having ingredients such as Tobacco, Lime water, oil, Menthol,Mixed spices, Natural Artificial flavours with are homogeneously manufactured is not an ordinary chewing tobacco. It is not chewed but to be kept between lips and teeth and sucked. It is not edible and should not be eaten or swallowed. It is in a powder form after several manufacturing process. The manufacturer has also paid excise duty for this product. It is different commodity on the lines of Zarda, Hans, etc., which are not exempted commodity but taxable at 12.5% as held in the later part of the judgment cited above.' 9. A perusal of the aforesaid portion of the impugned order makes it clear that the matter turns on facts and Hans Chap Khaini is only a brand and it is not a product. Whether the product would qualify as 'Tobacco' is a matter which turns on facts and in the considered view of this Court, in the light of the aforementioned extracts in the impugned order, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 110] and K.C.Mathew case [Authorized Officer, State Bank of Travancore Vs. Mathew K.C. reported in (2018) 3 SCC 85] has held that the alternate remedy rule has to be applied with utmost rigour when it comes to fiscal statutes. Relevant paragraph in Dunlop India case is paragraph 3 and relevant paragraph in K.C.Mathew case is paragraph 10, which read as follows: Paragraph 3 of Dunlop India case '3. ....... Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in such matters with greater caution, care and circumspection.' (underlining made by this Court to supply emphasis and highlight) 15. To be noted, the aforementioned paragraph 10 in K.C.Mathew's case, Satyawati Tondon principle has been reiterated and therefore relevant paragraph in Satyawati Tondon is not being extracted and reproduced separately. 16. Very recently in Commercial Steel case law [ The Assistant Commissioner of State Tax Appellant(s) and Others Vs. M/s Commercial Steel Limited] being order made by Hon'ble Supreme Court on 03.09.2021, Hon'ble Dr Dhananjaya Y Chandrachud speaking for a three member Bench of the Hon'ble Supreme Court, dealt with this Alternate remedy rule and to be noted ,this is qua an appeal under Section 107 of 'The Central Goods and Services Tax Act, 2017' (hereinafter 'C-GST Act' for the sake of brevity and convenience) {to be noted, a fiscal statute again} relevant paragraphs are paragraphs 11 and 12, which read as follows: '11 The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.' 18. This Court deems it appropriate to not to burden this order with further extracts from Harbanslal case also. Suffice to say that exceptions to alternate remedy rule are set out i.e., adumbrated in Whirlpool case (come to be known and has come to stay as 'Whirlpool exceptions' in litigation parlance). Suffice to say that captioned writ petition does not fall under any of the exceptions adumbrated in Whirlpool case. On the contrary, in the considered view of this Court, this is a case which has to be dealt with by Appellate Authority if the writ petitioner / dealer chooses to prefer an appeal as it turns heavily on facts. As already alluded to supra, 'Hans Chap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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