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TMI Blog1989 (2) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... appreciate the contentions raised herein, it would be appropriate to deal with the facts of the appeal arising out of Special Leave Petition No. 1293 of 1988. v The assessee is engaged in repairing and refilling of cotton bowls on the shafts which are used as part of calendering machine in the textile industry. The cotton bowl is a shaft made of steel on which a thick layer of cotton is pasted and affixed. It is used in the textile finishing industries as an essential part of calendering machine. In the course of its use the cotton pasted on the shaft loses its thickness and shape and after some time it requires repairing and refilling. The assessee in this case moved an application under Section 35 of the U.P. Sales Tax Act, 1948 (hereinafter called 'the Act'). It may be mentioned that Section 35 was added by the U.P. Sales Tax (Amendment and Validation) Act No. 23 of 1976. Section 35 of the said Act has been amended by Section 31 of the U.P. Act 12 of 1979. Section 35 provides for determination of disputed questions by moving an application before the Commissioner of Sales Tax. The relevant part of the said section as it stood at the relevant time was as follows : "35. Determina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was rendered in terms of the said section. The decision, inter alia, included the questions whether the job of repairing and refilling of cotton bowl and the process involved therein amounted to "manufacture" or "sale" within the meaning of the Act. The Commissioner of Sales Tax by his order dated 10th June, 1985 decided both the questions against the assessee. Aggrieved thereby the assessee had preferred an appeal before the Sales Tax Tribunal. The Tribunal by its order dated 14th November, 1985 allowed the appeal in part. The Tribunal held that the process of repairing and refilling of cotton bowls of the customers did not amount to "manufacture" as defined under Section 2(e-l) of the Act. It further held that such an activity of the assessee amounted to "sale" as defined under Section 2(h) of the Act as amended by the U.P. Sales Tax Amendment and Validation Act, 1985. It is against this decision of the Sales Tax Tribunal that the Commissioner of Sales Tax had preferred revision to the High Court. The High Court went into the question whether further revision lay to the High Court. The High Court, noticed the terms of Section 35 noted hereinbefore which provided by sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt and persons who hold or have held a post not below the rank of Deputy Commissioner of Sales Tax provided that when the Tribunal consisted of one or more persons who have been judges of a High Court then he or one of them should be appointed the President. Sub-section (5) of Section 10 authorises the Tribunal, as the case may be, to confirm, cancel or vary such order. Sub-section (2) of Section 10 stipulates that any person aggrieved by an order passed by an appellate authority under section 9 or by the revising authority under Section 10B or by a decision given by the Commissioner of Sales Tax under Section 35 may, within six months from the date of service of the copy of such order or decision on him, prefer an appeal to the Tribunal. Sub-section (10)(a) of Section 10 provides that an appeal against the order of the Appellate Authority under Section 9 shall be heard and disposed of, inter alia, (i) by a bench of one member, whether such order is passed by the Assistant Commissioner (Judicial), the amount of the tax, fee or penalty in dispute does not exceed five thousand rupees,; and (ii) by a bench of two members, in any other case. An appeal against the order passed under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 35 may, within six months from the date of service of the copy of such order or decision on him, prefer an appeal to the Tribunal : Provided that where the disputed amount of tax, fee or penalty does not exceed one thousand rupees, the appellant may, at his option, request the Tribunal in writing for summary disposal of his appeal, whereupon the Tribunal may decide the appeal accordingly. Explanation. - For the purpose of this sub-section, the expression 'any person', in relation to any order passed by an authority other than the Commissioner of Sales Tax, includes the Commissioner of Sales Tax. (2-A) The manner and procedure of summary disposal of appeal shall be such as may be prescribed. (3) Section 5 of the Limitation Act, 1963, shall apply to appeals or other applications under this section. (4) The Tribunal may at any stage, after giving the appellant a reasonable opportunity of being heard, dismiss the appeal. (5) The Tribunal may, if it has not already dismissed the appeal under sub-section (4), after calling for and examining the relevant records, and after giving the parties a reasonable opportunity of being heard or as the case may be, after following t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is passed by a Deputy Commissioner (Appeals) or the amount of tax, fee or penalty in dispute exceeds ten thousand rupees; (ii) by a single member in any other case. (b) An appeal against an order passed under Section 10-B shall be heard and disposed of by a bench of two members. (c) An appeal against an order passed under sub-section (3) of Section 4-A or a decision given under Section 35, which shall be filed before the President shall be heard and disposed of by a bench of three members, (d) The President may, if he so thinks fit - (i) direct an appeal to be heard and decided by a larger bench; (ii) transfer an appeal from one bench to another bench. (11) The place of sitting and procedure of, and the manner of presenting appeals and other documents to the Tribunal shall, subject to the rules, be such as the Tribunal may deem fit to adopt. (12) The decision of case heard by a bench shall be in accordance with the opinion of the majority. Where the members are equally divided the President of the Tribunal may - (a) if he was not a member of such bench, give his own opinion or refer the case for the opinion of another member, whereupon the case shall be decided in accorda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide the questions referred to him as he deems fit after giving the applicant an opportunity of being heard. Under sub-clause (5) of Section 35 it has been stated that the decision given by the Commissioner of Sales Tax shall subject to an appeal to the Tribunal, be final. The High Court while examining the section noticed that when an appeal against the order passed under Section 35 of the Act is before the Tribunal, the appeal is to be heard and disposed of by a bench of three members, although in regard to other appeals before the Tribunal these can he disposed of even by a single member or by a bench consisting of two members. The High Court noted that under sub-clause (5) of Section 35 of the Act prior to its amendment brought out by U.P. Act No. 12 of 1979, an appeal used to lie to the High Court against the order of the Commissioner of the Sales Tax. By the aforesaid amendment brought out by U.P. Act No. 12 of 1979 under Clause (5) of Section 35 the words "High Court" have been deleted and substituted by the word "Tribunal". The learned Judge of the High Court observed that an appeal before the Tribunal was specially treated by the Legislature and it was enjoined that it sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal" used in sub-section (5) of Section 35 is only with regard to the proceedings contemplated by that section and the order of the Commissioner would be final. But this will not bar the other authorities under the Act from deciding the controversy before it on its own by looking to the evidence and considering the question of law which comes before it. Therefore, the High Court rejected the submission that the order of the Commissioner of Sales Tax is binding in the assessment proceedings and those proceedings have to be decided in accordance with the same. 7. It is difficult to accept the position that under Section 35 which empowers the Commissioner to determine disputed questions and the Commissioner under sub-section (2) after giving the parties opportunity of being heard, decides a question, his order can be called to be an administrative order. In our opinion, the very language of the section which enjoins a decision by the Commissioner envisages that the decision is quasi-judicial or judicial and cannot be characterised as administrative. Whether that decision will be binding on other party and what will be the effect of the decision of the Commissioner of Sales Tax in pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereto. The observations of Lord Loreburn, L.C. were referred to in South Asia Industries Pvt. Ltd. v. S.B. Sarup Singh (1965) 2 SCR 756, where this Court observed at page 766 of the report that the expression "final prima facie meant that an order passed on appeal under the Act was conclusive and no further appeal lay. A right to revision under the Act is a right given by the Act. In this connection, observations in M/s. Jetha Bai and Sons, Jew and others v. M/s. Sunderdas Rathenai and others, (1988) 1 SCC 722 may be relied on. 8. We have noted that Section 11 of the Act after the amendment stipulated that any person being aggrieved by an order made under sub-section (4) or sub-section (5) of Section 10, other than an order under sub-section (2) of that section summarily disposing of the appeal, or by an order passed under Section 22 by the Tribunal, may apply for revision. Where an appeal is not disposed of summarily but by a decision, as in this case, and where the appeal is contemplated in such a situation, to be heard by a bench of three Judges, in our opinion, if any further revision would have laid from the decision of the Tribunal then such decision of the Commissioner wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter to find out the intention of the legislature from the words used by the natural meaning of the words and the spirit and reason of the law. See Cross on Statutory Interpretation, Second Edition, page 21. 9. Having regard to the scheme manifested from the amendment, that is to say, to make the Commissioner's decision final, subject to an appeal to the Tribunal where the Tribunal is enjoined to hear such an appeal by a bench of three members and where revision is provided only in special cases, in our opinion, it would be improper to interpret the spirit and reason of that law in such a way as to enjoin that a further revision lay to the High Court under Section 11 of the Act. In our opinion, therefore, the High Court was right that no further revision in such a situation lie to the High Court. This, however does not eliminate the correction by the High Court. In an appropriate case by exercise of a writ of certiorari under Article 226 of the Constitution it exercises superintendence over all courts and tribunals throughout the territory. See in this connection Re Gilmore's Application (1957 (1) All England Report 796). We are not concerned with that situation in these appeals. ..... 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