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Bharat Steel Tubes Ltd. Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition Nos. 279, 280, 281, 282, 285 and 286 of 1984
Judge
Reported in[1985]60STC369(Raj)
AppellantBharat Steel Tubes Ltd.
RespondentState of Rajasthan and ors.
Appellant Advocate S.M. Mehta, Adv.
Respondent Advocate G.S. Bapna, Adv.
DispositionPetition dismissed
Cases ReferredPremier Automobiles Ltd. v. Kamlakar Shantaram Wadke
Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect -.....orderv.s. dave, j. 1. these six writ petitions are disposed of by this single order as a common question of law is involved in them, namely, whether the sales tax can be imposed on sale or purchase of declared goods at more than one stage and whether that stage is the first point of sale or last point thereof and such a sale is in respect of steel tubes ?2. in s. b. civil writ petition no. 280 of 1984, the petitioner bharat steel tubes ltd. is a public limited company which manufactures steel tubes/pipes in haryana but has its sale depot in various states including the state of rajasthan at dher-ka-balaji, jaipur, and is a registered dealer under the provisions of the rajasthan sales tax act, 1954 (hereinafter referred to as 'the act of 1954') as well as the central sales tax act, 1956.....
Judgment:
ORDER

V.S. Dave, J.

1. These six writ petitions are disposed of by this single order as a common question of law is involved in them, namely, whether the sales tax can be imposed on sale or purchase of declared goods at more than one stage and whether that stage is the first point of sale or last point thereof and such a sale is in respect of steel tubes ?

2. In S. B. Civil Writ Petition No. 280 of 1984, the petitioner Bharat Steel Tubes Ltd. is a public limited company which manufactures steel tubes/pipes in Haryana but has its sale depot in various States including the State of Rajasthan at Dher-ka-balaji, Jaipur, and is a registered dealer under the provisions of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as 'the Act of 1954') as well as the Central Sales Tax Act, 1956 (hereinafter referred to as 'the Act of 1956') and is being assessed by the Commercial Taxation Officer, E-Circle, Jaipur. The assessing authority for the assessment years 1978 and 1979 issued prescribed notice under Section 64 of the Act of 1954 asking the petitioner to show cause inter alia why the sale of the steel pipes effected by the petitioner to the registered dealers for resale against prescribed sales tax declaration form No. S.T. 17 amounting to Rs. 41,89,693.33 be not assessed to tax at the rate of 4 per cent and why the interest thereon be not levied in view of the decision reported in Associated Cement Co. Ltd. v. Commercial Tax Officer, Kota [1981] 48 STC 466 (SC). The petitioner filed reply and submitted that the tax on the sale of steel tubes is to be levied on the last point in series of sales to successive dealers and that the tax on declared goods can be levied only at one point as contemplated under Section 15(a) of the Act of 1956. The assessing authority levied tax in respect of sale on steel tubes amounting to Rs. 41,89,693.33 sold by the petitioner against declaration form No. S.T. 17 and created a tax liability at 4 per cent amounting to Rs. 1,27,587.75 and further created liability of interest under Section 11B of the Act of 1954 amounting to Rs. 1,22,496.00 and served a demand notice. It is against this assessment order dated January 30, 1984 and the demand notice of the even date, that the present writ petition is filed.

3. In S. B. Civil Writ Petition No. 285 of 1984, the petitioner M/s. Jotindra Steel & Tubes Ltd. is also manufacturer of steel tubes manufacturing of which is being carried on in Haryana, but sales office in Rajasthan is at E-98, Shastri Nagar, Jaipur. A similar position in Bharat Steel Tubes case arose and the assessing authority imposed the tax on steel tubes worth Rs. 6,48,663.72 sold by the petitioner to the registered dealers in Rajasthan against declaration form No. S.T. 17 which created a tax liability of 4 per cent amounting to Rs. 25,997.00 and interest amounting to Rs. 24,960.00.

4. In S. B. Civil Writ Petition No. 286 of 1984, which is also filed by M/s. Jotindra Steel & Tubes Ltd., party above, the tax imposed is on sale of steel pipes against declaration form No. S.T. 17 to the tune of Rs. 1,85,292.12 and the tax liability at 4 per cent came to Rs. 7,411.68 and an interest to the tune of Rs. 7,228.00.

5. In S. B. Civil Writ Petition No. 282 of 1984, Vijai Hari Agencies the petitioner is a partnership firm which deals in steel pipes and tubes at Jaipur. The petitioner purchased steel tubes from M/s. Bharat Steel Tubes Ltd. Worth Rs. 28,94,725.74 against declaration form No. S.T. 17 for resale in Rajasthan. The petitioner was served with a notice by respondent No. 2 as to why tax should not be imposed on him on the sale of the items of steel tubes/pipes which was replied to but the assessing authority imposed tax amounting to the extent mentioned in para 13 of the writ petition and also imposed interest as mentioned therein.

6. S. B. Civil Writ Petition No. 281 of 1984 is also filed by the same firm which is in respect of steel tubes goods purchased from Bharat Steel Tubes, Jaipur, worth Rs. 30,23,906.45 and tax and interest liability was created after notice as mentioned in para 12 of the writ petition.

7. In S. B. Civil Writ Petition No. 279 of 1984, M/s. Bharat Steel Tubes Ltd. the tax is levied on the first sale of steel pipes amounting to Rs. 28,93,605.25 and created the liability after notice as mentioned in para 15.

8. The facts mentioned above indicate that the writ petitions filed by M/s. Bbarat Steel Tubes Ltd. and Jotindra Steel & Tubes Ltd. are in respect of sale on the first point where the parties are manufacturers and they sold goods to the subsequent dealers and yet have been assessed and demand made. While the writ petitions filed by Vijai Hari Agencies who are the purchasers of Bharat Steel Tubes have been taxed at a subsequent point and hence the question as mentioned above is common to all the six writ petitions whether on the same goods, i.e., steel tubes, sales tax could be imposed on Bharat Steel and Jotindra Steel & Tubes or on the subsequent purchasers Vijai Hari Agencies and other traders in case of Jotindra Steel & Tubes Ltd. The petitioners' contentions are that the entire dispute arose in all these cases for the assessment years 1977-78 and 1978-79 only till then there was no dispute and the earlier assessing authority completed the assessment of the petitioners for the years 1973-74, 1974-75, 1975-76 and 1976-77 on the sale of steel tubes and pipes as taxable at the last point of sale in State of Rajasthan and accepting the claim of the petitioner in respect of sales made to the registered dealers against declaration form No. S.T. 17 without charging any sales tax thereon and thus the petitioners' assessment for the years 1977-78 and 1978-79 ought to have been considered in the same light.

9. It has been contended on behalf of the petitioner that M/s. Vijai Hari Agencies, Jaipur, and M/s. Ever Green Corporation, Jaipur, or the last dealers selling steel pipes and tubes in Rajasthan, had been paying the tax in respect of the last point. At the same time M/s. Bharat Steel Tubes Ltd. and M/s. Jotindra Steel & Tubes Ltd. have been charged tax in respect of the same goods, which is clearly illegal at the first point. It is contended that the same goods could not be taxed twice and it has to be charged only one at point in the series of sales to the successive dealers. The commodities in question, viz., steel pipes and tubes, are covered by the definition of 'goods of special importance', as defined in Section 14 of the Act of 1956 and by virtue of Section 15(a), the tax can be levied only on one point. It is also contended that the imposition of the tax on sale of iron steel tubes in the hands of the first dealer is violative of articles 265 and 300A of the Constitution of India, being the levy of tax without any authority of law and also amounting to deprivation of property without any authority of law. It has also been contended that various notifications have been issued from time to time by the State Government where, according to which the point of tax on sale of iron and steel tubes is on the last point in the series of sales by the successive dealers as is clear from the notification dated April 11, 1958 which is as under :

In exercise of the powers conferred by second proviso to Section 5 of the Rajasthan Sales Tax Act, 1954 (Rajasthan Act XXIX of 1954), the Government of Rajasthan being of the opinion that it is necessary in the public interest so to do does hereby provide that with immediate effect the rate of tax payable by a dealer in respect of the goods included in the list appended hereto shall be shown against each and in pursuance of Sub-rule (2) of Rule 15 of the Rajasthan Sales Tax Rules, 1955, further directs the tax in respect of the aforesaid goods shall be payable at the last point in the series of sales by successive dealers.

List

(i)....

(ii)....

(iii)....

(iv)....

(v) Iron and steel, that is to say :--2 per cent

(a) pig iron and iron scrap ;

(b) iron plates sold in the same form in which they are directly produced by the rolling mill ;

(c) steel scrap, steel ingots, steel billets, steel bars and rods ; (d) (i) steel plates (ii) steel sheets sold in the same form in which(iii) sheet bars and tin bars they are directly produced by(iv) rolled steel sections the rolling mill.'(v) tool alloy steel

10. It is submitted that in the aforesaid notification it is clearly mentioned that the tax shall be payable at the last point in the series of sales by successive dealers. Thereafter notifications were issued revising the rates on May 29, 1967, March 8, 1969, March 31, 1973 and July 1, 1975 however without altering the position of 1958 notification and again when the notification was issued on February 27, 1980 it clearly mentioned that the tax is leviable at the last point. It was, therefore, contended that on a perusal of the aforesaid notifications it is abundantly clear that the notification dated April 11, 1958 where the tax was payable on iron and steel at the last point continued and no change was ever made and this is why the assessing authorities used to levy tax at the last point in the assessment years 1973-74, 1974-76, 1975-76 and 1976-77 and again and again it has resorted to the same subsequently but for the years in dispute the assessing authority in contravention of the aforesaid notifications and Section 15 of the Act of 1956 levied tax at two stages which ex facie is without jurisdiction quoting Section 15 of the Act of 1956 which reads as under :

Section 15. Restrictions and conditions in regard to tax on sale or purchase of declared goods within a State.--Every sales tax law of State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declaced goods, be subject to the following restrictions and conditions, namely :-- (a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed (four per cent) of the sale or purchase price thereof, and such tax shall not be levied at more than one stage.

11. It is further submitted that the aforesaid position has further been made clear by notification annexure 1 where it has been categorically stated that it cannot be levied at more than one stage.

12. It has been further contended on behalf of Vijai Hari Agencies that the tax can be levied only on the registered dealers, to whom the sales have been made successively and again because the sale was made under Section 5CC and Section 5C and the purchases have been made from M/s. Bharat Steel Tubes Ltd. in whose assessment, full tax has already been levied ; no tax could be imposed on this firm. In substance the contention of the petitioner is that the assessing authority has acted illegally and in gross violation of the provisions of the Act and the notifications in levying the tax from both the seller and the purchaser and at both the points, and that this Court must interpret the provisions of law so that the legal position may be clarified so that the assessing authority may not tax the parties illegally. Reliance has been placed on the circular (annexure 1) dated February 17, 1983 issued by the Government of Rajasthan, Commercial Taxes Department, where the scope of the definition of 'iron and steel' was clarified.

13. In reply the counsel for the respondents has contended that the writ petition should be dismissed on the short ground that the petitioner has alternative remedy by way of appeals which in fact had been filed after vacating the stay order by this Court and the same are pending before the appellate authority. Thus, there being availability of alternative remedy, the writ petition should be dismissed. Reliance in this connection has been placed on Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315 (SC); AIR 1983 SC 603 and Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke AIR 1975 SC 2238. Replying to the contentions raised on behalf of the petitioner, learned Counsel for the respondents submitted that the notification referred to by the petitioners were not applicable to the facts of these writ petitions as the notification dated April 11, 1958 was a composite notification issued under Section 6 of the Rajasthan Sales Tax Act relating to tax as well as under Rule 15 of the Rajasthan Sales Tax Rules relating to the paint of tax. It was contended that the items mentioned in this notification did not cover the steel tubes imported by the petitioner as the list was exhaustive. As such, by virtue of Rule 15 the tax on steel tubes/pipes was leviable at the first point. Regarding the subsequent notifications dated May 29, 1967, March 8, 1969 and July 1, 1975 it is submitted that they were issued under Section 5 of the Rajasthan Sales Tax Act relating to the rate of tax only and were not concerned with the point of tax. It has, however, been conceded that subsequent to the issuance of the notification dated February 27, 1980 under Rule 15 of the Rajasthan Sales Tax Rules, it can be said that the tax On steel tubes and pipes is leviable on the last point but as the present case relates to the assessment year prior to this, the same would not apply. Reliance in this connection was placed on State of Tamil Nadu v. Pyare Lal Malhotra AIR 1976 SC 800 and; Commissioner of Income-tax v. Shahzada Nand and Sons AIR 1966 SC 1342.

14. Regarding the case of Jotindra Steels, it has been contended that the tax on declared commodity sold by them is leviable at the single point, and the correct point is the first point by virtue of Rule 15 of the Rajasthan Sales Tax Rules. Thus, the tax has rightly been levied on them and they cannot question merely on the subsequent dealers. Thus, such grievance could be made by the subsequent dealers only. Regarding the circular (annexure 1) it is contended that the same is not at all helpful in determining the point in issue, as it lays down only that the rate of tax is 4 per cent and that it cannot be levied at more one stage, but this notification does not mention as to which is that stage and is silent on the point that it has to be levied at the last point. It has also been contended that the levying tax at the last point in the earlier years, does not attract the doctrine of res judicata, as in taxation matters, each year's assessment gives separate cause of action. Reliance has been placed on M.M. Ipoh v. Commissioner of Income-tax, Madras AIR 1968 SC 317 and Income-tax Law by Chaturvedi and Pithisaria, Third Edition, Volume I, page 190. Regarding the argument of equity in favour of the petitioner, it is contended that there is no equity in taxation matters, both of them are strangers. In this respect reliance has been placed on interpretation of Taxing Statutes by Kajju, page 7, Commissioner of Income-tax v. Shahzada Nand and Sons AIR 1966 SC 1342 and Commissioner of Income-tax v. Firm Muar AIR 1965 SC 1216.

15. While giving rejoinder to the contentions of the respondents Mr. Mehta, counsel for the petitioner, contended that looking to the legislative history and post-practice duly clarified by the circular dated April 11, 1958 the only inference which can be drawn is that the tax is leviable at the last point. In the alternative, it is contended that in case the notification is not relied upon, then there is no notification fixing the stage and in the absence of notification the levy is per se illegal. Regarding the preliminary objections raised on behalf of the respondents Mr. Mehta submitted that the assessment order can be directly challenged by the writ petition and there is absolutely no illegality about it. Reliance has been placed on Bhawani Cotton Mills Ltd. v. State of Punjab [1967] 20 STC 290 (SC), A. V. Fernandez v. State of Kerala [1957] 8 STC 561 (SC), Calcutta Discount Co. Ltd. v. Income-tax Officer AIR 1961 SC 372, Rohtas Industries Ltd. v. Rohtas Industries Staff Union AIR 1976 SC 425, Karam Chand Thapper and Bros. (Coal Sales) Ltd., Jaipur v. Sales Tax Officer, City Circle A, Jaipur AIR 1963 Raj 51, Kailash Nath v. Stale of U. P. AIR 1957 SC 790, Rajasthan Spinning & Weaving Mills Ltd. v. State of Rajasthan 1980 RLW 180; and K. S. Shivji & Co. v. Joint Commercial Tax Officer AIR 1967 Mad 135.

16. Before I proceed to decide these writ petitions on other points, it is essential to deal with the preliminary objection raised on behalf of the respondents.

17. It is an admitted fact in these cases that the orders under challenge are appealable and initially no appeals were filed and the petitioners had rushed to this Court to file the writ petitions and interim stay order was also obtained. Subsequently, on vacation of the stay orders by this Court, appeals have been filed before the Deputy Commissioner (Appeals) challenging the assessment orders and the same are pending. Thus, the alternative remedy was not only available, but the same has actually been availed of by the petitioners and the appeals are sub judice. Hence there is little justification for the petitioners to continue these writ petitions in this Court.

18. In Titaghur Paper Mills Co. Lid. v. State of Orissa [1983] 53 STC 315 (SC); AIR 1983 SC 603 the petitioners had filed the writ petitions challenging the order of assessment in the High Court directly and some writ petitions were filed in the Supreme Court under Article 32 of the Constitution challenging the order of assessment under the Orissa Sales Tax Act. It was contended that the orders of assessment were nullity and therefore, the petitioners were entitled to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution and the High Court having held that there was no inherent lack of jurisdiction, dismissed the appeals. Special leave petitions were filed besides the writ petition under Article 32 of the Constitution as above, and their Lordships of the Supreme Court, while reviewing the entire law, held that under the scheme of the Act, there is hierarchy of authorities, before which the petitioner can get adequate redress against the wrongful act complained of. The Act provides for a complete machinery to challenge an order of assessment and the impugned orders of assessment can only be challenged by the modes prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well-recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. Their Lordships summarised the law in para 11 as under :

Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under Sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under Sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well-recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J., in Wolverhampton New Water Works Co. v. Hawhesford (1859) 6 CB (NS) 336 at page 356 in the following passage :

There are three classes of cases in which a liability may be established founded upon statute....But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it....The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspaper Ltd. [1919] AC 368 and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. [1935] AC 632 and Secretary of State v. Mask & Co. AIR 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.

19. I need not refer to other authorities cited on behalf of the respondents on this issue as the case referred to above is a case under the Sales Tax Act and where the entire law on the point is discussed.

20. I will deal with the cases relied on by the petitioners in reply to the aforesaid preliminary objection Bhawani Cotton Mills Ltd. v. State of Punjab [1967] 20 STC 290 (SC) is a case arising from the Punjab General Sales Tax Act, 1948 wherein the petitioners had challenged the provisions of the Punjab General Sales Tax Act, 1948 levying tax on purchase of cotton and sale of yarn manufactured out of it, being in contravention of the provisions of Section 15 of the (Central) Sales Tax Act, 1956. In this case the Punjab High Court had entertained the writ petitions and against the decision of the Division Bench of the Punjab High Court an appeal was filed by Bhawani Cotton Mills which was allowed by their Lordships of the Supreme Court by majority judgment wherein it was held that 'if the Central Act makes it mandatory that the tax can be collected only at one stage, in our opinion, it is not enough for the State to say that a person, who is not liable to pay tax, must, nevertheless, pay in the first instance, and then claim refund at a later stage. We may state that the question as to how far a party can ask for refund, without the order of assessment being set aside, by appropriate proceedings, is highly doubtful; because, at the time when the actual order of assessment is passed, in certain cases, it may not be possible for a party to say whether he is entitled to exemption or not, under Sub-clause (vi) of Section 5(2)(a) of the Act. If a person is not liable for payment of tax at all, at any time, the collection of a tax from him, with a possible contingency of refund at a later stage, will not make the original levy valid ; because, if particular sales or purchases are exempted from taxation altogether, they can never be taken into account, at any stage, for the purpose of calculating or arriving at the taxable turnover and for levying tax'.

21. In A. V. Fernandez v. State of Kerala [1957] 8 STC 561 (SC) it has been held as under:

If there is a liability to tax, imposed under the terms of the taxing statute, then follow the provisions in regard to the assessment of such liability. If there is no liability to tax there cannot be any assessment either. Sales or purchases in respect of which there is no liability to tax imposed by the statute cannot at all be included in the calculation of turnover for the purpose of assessment and the exact sum which the dealer is liable to pay must be ascertained without any reference whatever to the same.

There is a broad distinction between the provisions contained in the statute in regard to the exemptions of tax or refund or rebate of tax on the one hand and in regard to the non-liability to tax or non-imposition of tax on the other. In the former case, but for the provisions as regards the exemptions or refund or rebate of tax, the sales or purchases would have to be included in the gross turnover of the dealer because they are prima facie liable to tax and the only thing which the dealer is entitled to in respect thereof is the deduction from the gross turnover in order to arrive at the net turnover on which the tax can be imposed. In the latter case, the sales or purchases are exempted from taxation altogether. The Legislature cannot enact a law imposing or authorising the imposition of a tax thereupon and they are not liable to any such imposition of tax. If they are thus not liable to tax, no tax can be levied or imposed on them and they do not come within the purview of the Act at all. The very fact of their non-liability to tax is sufficient to exclude them from the calculation of the gross turnover as well as the net turnover on which sales tax can be levied or imposed.

22. In K.S. Shivji & Co. v. Joint Commercial Tax Officer AIR 1967 Mad 135 the Division Bench of the Madras High Court held that 'when a remedy is available to an assessee under the statute, he must first resort to it and when actually he has resorted to it and the appeal is pending, the Court acting under Article 226 would be reluctant to interfere with an order of assessment. But there may be cases where this rule may not outweigh other considerations which may compel interference by the Court.'

23. I have carefully gone through all the aforesaid cases. Except in K. S. Shivji & Co. v. Joint Commercial Tax Officer AIR 1967 Mad 135 and all other cases the extraordinary jurisdiction has been invoked challenging the order to be without jurisdiction and without invoking the departmental remedy. K. S. Shivji & Co.'s case [1965] 16 STC 769 ; AIR 1967 Mad 135 does not hold the ground in view of the decision of their Lordships of the Supreme Court in Premier Automobiles Ltd. case AIR 1975 SC 2238 referred to hereinafter.

24. Thus, on a careful study of the entire case law cited above I have no doubt in my mind that in the circumstances of the present case where the petitioners after invoking the extraordinary jurisdiction of this Court have also chosen to file the appeals, ought to have taken one firm decision whether they want to continue with the appeals or the writ petitions filed here. In Titaghur Paper Mills [1983] 53 STC 315 (SC); AIR 1983 SC 603, cited above, their Lordships of the Supreme Court have categorically held that 'where a right or liability is created by the statute which gives special remedy for enforcing it, the remedy provided by that statute alone must be availed of'. Then in Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke AIR 1975 SC 2238 their Lordships while dealing a case under the Industrial Disputes Act held as under:

It would thus be seen that through the intervention of the appropriate government, of course not directly, a very extensive machinery has been provided for settlement and adjudication of industrial disputes. But since an individual aggrieved cannot approach the Tribunal or the labour court directly for the redress of his grievance without the intervention of the Government, it is legitimate to take the view that the remedy provided under the Act is not such as to completely oust the jurisdiction of the Civil Court for trial of industrial disputes. If the dispute is not an industrial dispute within the meaning of Section 2(k) or within the meaning of Section 2A of the Act, it is obvious that there is no provision for adjudication of such disputes under the Act. Civil Courts will be the proper forum. But where the industrial dispute is for the purpose of enforcing any right, obligation or liability under the general law or the common law and not a right, obligation or liability created under the Act, then alternative forums are there giving an election to the suitor to choose his remedy of either moving the machinery under the Act or to approach the Civil Court. It is plain that he can't have both. He has to choose the one or the other.

25. In the light of the aforesaid discussions the petitioners should persuade their remedy before the appellate authority, particularly when no challenge to any provision of law or violation of principles of natural justice is argued in these cases. The case of the petitioners is also not that the assessing authority has no jurisdiction to decide the tax liability. The grievance of the petitioner in fact is that the tax on steel tubes should be levied at the last point on the basis of the past practice and notifications issued from time to time.

26. In this view of the matter I would not interfere in the extraordinary jurisdiction of this Court. However, at the same time I may observe that very interesting and important questions have been raised in these writ petitions particularly in view of the fact that the assessing authority has given contradictory orders as is apparent on the face of the record. In cases of Bharat Steel Tubes and Jotindra Steel Tubes the demands have been raised at the first point while in the case of Vijai Hari Agencies at the subsequent stage. This obviously could not have been done. The assessing authority ought to have been done. The assessing authority ought to have to taken one stand and should have assigned reasons as to why it was deviating from the past practice when there was no change in the circumstances. The petitioners first filed the writ petitions which were admitted and notices issued and then also filed appeals. It is for this reason that the counsel for the respondents has raised a preliminary objection which is sustainable as it is not open to the petitioner to continue with both the remedies. In view of the fact that departmental remedy by way of appeals are more effective, I would direct the appellate authority to decide the appeals before February 28, 1985.

27. The petitioners' apprehension is that the appellate authority may not decide the appeals at an early date and/or the same may be dismissed on some technical ground or on the point of limitation. In my considered opinion this apprehension of the petitioners is wholly misconceived. In the present case the assessing authority has given two contradictory orders in the same subject-matter and it is the bounden duty of the appellate authority to adjudicate upon the points involved so that it may also be a guideline in future for the assessing authorities. This is more so when this Court is not deciding the case, on a preliminary objection raised on behalf of the Department. It is now a settled proposition of law that the State must not non-suit the citizens on the technical pleas like that of limitation and others and should obtain the decision on merits.

28. In view of the fact that the assessing authority has apparently erred in giving contradictory orders, the demand raised on all cannot ex facie be permitted to stand. One of the two orders is likely to be set aside and I cannot forestall as to which interpretation the appellate authority would give. It would be in the interest of justice that the payment of demand raised is not enforced till the disposal of the appeals.

29. In the result, these writ petitions are dismissed on the preliminary objection raised by the Department. However, a direction is issued to the appellate authority for deciding the appeals on merits on or before February 28, 1985 and not to enforce the realisation of the demand raised till the disposal of the appeals. There shall be no order as to costs.


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