TMI Blog2023 (2) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... he legality or propriety of which appears to him to be prima facie vulnerable. Nevertheless, such power cannot be exercised if the issue involved is pending before or has been settled by an appellate authority. It cannot be disputed that the Tribunal is comprehended within the meaning of appellate authority as defined in section 2(b) of the VAT Act - These being the contours of section 34, as it then stood, it needs to be seen how far the Revisional Authority was justified in drawing power from such provision and exercising it. Having regard to the specific entry, i.e. Entry 129, dealing with mosquito repellents, this Court overruled the contention of the appellant therein that Jet Mat would not come within the ambit of Entry 129 since one of its constituents happens to be an insecticide. It was also held that the product manufactured by the appellant therein, viz. Jet Mat , which was commercially known as Mosquito Repellent Mat is a mosquito repellant notwithstanding the fact that it not only repels mosquitoes but is also capable of killing mosquitoes. For the reasons assigned in the decision, it was held that Jet Mat is not an insecticide which would be entitled for p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iv Tyagi, AOR Mr. Rohit Gupta, Adv. Ms. Apeksha Mehta, Adv.Ms. Falguni Gupta, Adv. Mr. P. Mundra, Adv. For the Respondent : Mr. Kamal Mohan Gupta, AOR JUDGMENT DIPANKAR DATTA , J. This appeal, by special leave, registers a challenge to an order dated 12th October, 2009 passed by the High Court of Punjab and Haryana at Chandigarh (hereafter the High Court , for short) dismissing Civil Writ Petition No.9191 of 2009 presented by the appellant and relegating it to the remedy of an appeal under section 33 of the Haryana Value Added Tax Act, 2003 (hereafter the VAT Act , for short). 2. Two questions emerge for decision on this appeal. First, whether the High Court was justified in declining interference on the ground of availability of an alternative remedy of appeal to the appellant under section 33 of the VAT Act, which it had not pursued. Should the answer to the first question be in the negative, we would next be required to decide whether to remit the writ petition to the High Court for hearing it on merits or to examine the correctness or otherwise of the orders impugned before the High Court. 3. It appears on a perusal of the order under challenge in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition not maintainable . In a long line of decisions, this Court has made it clear that availability of an alternative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. *** 6. At the end of the last century, this Court in paragraph 15 of the its decision reported in (1998) 8 SCC 1 (Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others) carved out the exceptions on the existence whereof a Writ Court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute. The same read as under: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; (iii) where the order or the proceedings are wholly without jurisdiction; or (iv) where the vires of an Act is challenged. 7. Not too long ago, this Court in its decision reported in 2021 SCC OnLine SC 884 (Assistant Commissioner of State Tax vs. M/s. Commercial Steel Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany in terms of an agreement. Such agreement contained an arbitration agreement in clause 23. Instead of pursuing its remedy in arbitration, the appellant company unsuccessfully invoked the writ jurisdiction. This Court was approached whereupon it was held that in view of the issues raised, there was no reason why the appellant company should not pursue its remedy in arbitration, having solemnly accepted clause 23 of the agreement, and instead invoke the extraordinary jurisdiction of the high court under Article 226 of the Constitution to determine questions which really form the subject matter of the arbitration agreement. This decision could not have been of any relevance having regard to the issue presented for resolution before the High Court by the appellant, particularly when the disputes inter se were not referable to arbitration. 11. We have reasons to believe, considering the nature of objection raised by the respondents as recorded by the High Court in the impugned order, that the High Court had mistakenly referred to Titagarh Paper Mills (supra) while intending to rely on a different decision of this Court on an appeal preferred by the same party, reported in (1983 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 7 of the VAT Act, the taxable goods have been classified under Schedules A, B and C. It is found from Schedule C (as originally enacted) that pesticides, weedicides and insecticides were included in Entry 1 and taxable @ 4%. 16. Returns were filed by the appellant for the Assessment Years 2003-04 and 2004-05 declaring its gross turnover from manufacturing and sales of insecticides and pesticides, besides other consumer goods. Such returns were duly accepted. However, in view of an amendment in Entry 67 of Schedule C introduced by a notification dated 30th June, 2005, notices were issued by the Assessing Authority as to why tax liability @ 10% instead of 4% should not be imposed. Upon hearing the representative of the appellant, orders dated 28th February, 2007 and 28th March, 2008 were passed by the Assessing Authority for the Assessment Years 2003-04 and 2004-05, respectively, accepting the classification of goods and the rate of tax as stated by the appellant in its returns, i.e. 4%. 17. Subsequently, the Revisional Authority called for the assessment records of the appellant for the Assessment Years 2003-04 and 2004-05 for revision of the assessment on classifying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only law point is involved in the case. The dealer has sold mosquito repellant and deposited tax @ 4%. The Hon'ble Supreme Court of India in the case of M/s Sonic Electrochem and another vs. STO and other (1998) 12- PHT-215 (SC) held that Jet Mat Mosquito Repellant is not pesticides/insecticides. Therefore, these goods are general goods and liable to tax at general rate of tax. Hence, a notice was issued to the dealer to explain as to why tax should not be levied at general rate of tax on the sale of mosquito repellants. The counsel of the firm has not offered any arguments on the issue. In view of the decision of the Hon'ble Apex Court in the case of M/s Sonic Electrochem and another vs. STO and other (1998) 12- PHT-215 (SC), it is unarguable clear that mosquito repellant mats being unscheduled goods are taxable at general rate of tax. Confusion was also cleared with the amendment to entry 67 vide notification dated 1.7.2005. In view of the above facts, it is clear that assessing authority while framing assessment has erred in levying tax @ 4% on mosquito repellants. Hence the assessment order dated 28.3.2008 is revised u/s 34 of the Act ibid as under: TTO @ 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4% Alethrin' was an insecticide and relying on the judgment of the Hon'ble Madras High Court, the Tribunal in the case of M/s Balsara Hygiene Products Ltd. Kundli (Sonepat) vs State of Haryana has also held that Mosquito Repellants is an insecticide and hence liable to concessional rate of tax. The same view has been taken by the Hon'ble Tribunal in the impugned order and I do not find any infirmity in this order. It has not been contested that Jet Mats does contain 'Allethrin' which is an insecticide. Hence, in these circumstances, the present review petition is dismissed. Being bound by the decision of the Tribunal, the Assessing Authority formed an opinion and returned a finding that he had no other alternative but to vacate the notice issued by him proposing to levy tax @ 10% instead of 4% and proceeded to do so. 21. Appearing in support of the appeal, Mr. V. Lakshmikumaran, learned counsel, contended that the Assessing Authority having passed the order dated 28th March, 2008 taking into consideration the decision of the Tribunal, which in turn distinguished the decision in Sonic Electrochem (supra), and such decision having attained finality, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequential final revisional orders impugned in the writ petition enhancing the liability of the appellant to tax @ 10% instead of 4%. 26. Since section 34 of the VAT Act appears to have been the source of power exercised by the Revisional Authority, we shall first notice its contents as it stood on the date of the impugned orders, i.e. 2nd March, 2009. Prior to its amendment with effect from 20th March, 2009, section 34 read as follows: Section 34. Revision. : - (1) The Commissioner may, on his own motion, call for the record of any case pending before, or disposed of by, any taxing authority for the purposes of satisfying himself as to the legality or to the propriety of any proceeding or of any order made therein which is prejudicial to the interests of the State and may, after giving the persons concerned a reasonable opportunity of being heard, pass such order in relation thereto, as he may think fit: Provided that no order passed by a taxing authority shall be revised on an issue, which on appeal or in any other proceeding from such order is pending before, or has been settled by, an appellate authority or the High Court or the Supreme Court, as the case may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arat Sales Tax Act, 1969 (hereafter the Sales Tax Act , for short). The short question that arose for a decision was, whether Jet Mat produced by the appellant therein would come within Entry 129 of Schedule II Part A of the Sales Tax Act, issued under section 49 thereof. Entry 129, at the relevant point of time, read thus: Sl. No. Description of goods Rate of sales tax Rate of purchase tax 129 Mosquito repellents Twelve paise in the rupee Twelve Paise in the 30. Having regard to the specific entry, i.e. Entry 129, dealing with mosquito repellents, this Court overruled the contention of the appellant therein that Jet Mat would not come within the ambit of Entry 129 since one of its constituents happens to be an insecticide. It was also held that the product manufactured by the appellant therein, viz. Jet Mat , which was commercially known as Mosquito Repellent Mat is a mosquito repellant notwithstanding the fact that it not only repels mosquitoes but is also capable of killing mosquitoes. For the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter chaos in administration of tax laws apart from undue harassment to assesses. We share the view expressed in Kamlakshi Finance Corporation Ltd. (supra). 35. In the midst of hearing, we had enquired from Mr. Sangwan whether there has been any decision of any other competent Tribunal or High Court taking a view different from the one taken by the Tribunal in its order dated 21st November, 2001, which was considered by the Assessing Authority. Fairly, he answered in the negative. If only Mr. Sangwan could have invited our attention to any such decision, which were acceptable to us, the issue decided by the Tribunal could have been reopened on the ground that it is a debatable issue and interference with the final orders passed by the Revisional Authority may not have been resorted to, leaving the appellant to pursue the appellate remedy under the VAT Act. 36. There is also substance in the contention of Mr. Lakshmikumaran that suo motu power of revision, on the terms of section 34, could have been exercised only if the orders sought to be revised suffered from any illegality or impropriety. 37. A decision may be questioned as suffering from an illegality if its maker fails ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
