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Shree Rajendera Mills Ltd. Vs. Joint Commercial Tax Officer - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtChennai High Court
Decided On
Case NumberWrit Petition No. 3911/70
Judge
Reported in1978(2)ELT551(Mad)
ActsCentral Excises Act, 1944 - Sections 36; Customs Act - Sections 131;
AppellantShree Rajendera Mills Ltd.
RespondentJoint Commercial Tax Officer
DispositionPetition dismissed
Excerpt:
- .....relating to what is stated 10 be lending of cotton is the subject-matter of an appeal before the appellate assistant commissioner of commercial taxes. the matter relates to the year 1967-68. for the earlier year, we are told that a similar turnover was considered by the tribunal, which was of opinion that the transactions amounted to leading and they were not sales. when the appeal in respect of the year 1967-68 is pending, we do not think it desirable and necessary to deal with the matter under article 226 of the constitution. normally, the assessee should be compelled to resort to the statutory remedy. in fact, in this case, he has availed himself of it and he must await the result.but an apprehension is expressed on behalf of the assessee that because a tax case has been filed.....
Judgment:

Veeraswami, C.J.

The turnover in question relating to what is stated 10 be lending of cotton is the subject-matter of an appeal before the Appellate Assistant Commissioner of Commercial Taxes. The matter relates to the year 1967-68. For the earlier year, we are told that a similar turnover was considered by the Tribunal, which was of opinion that the transactions amounted to leading and they were not sales. When the appeal in respect of the year 1967-68 is pending, we do not think it desirable and necessary to deal with the matter under article 226 of the Constitution. Normally, the assessee should be compelled to resort to the statutory remedy. In fact, in this case, he has availed himself of it and he must await the result.

But an apprehension is expressed on behalf of the assessee that because a tax case has been filed against the Tribunal's decision relating to the year 1967-68, the Appellate Assistant Commissioner might feel that he was not bound by the view of the Tribunal. We consider that in the hierarchy of authority set up under the Act, the Tribunal is superior to the Appellate Asistant Commissioner, who is bound by the orders of the Tribunal. The orders of the Tribunal will be as effective as the orders of this court so far as their binding character on the Appellate Assistant Commissioner is concerned. Merely because a tax case has been filed by the department, it does not mean it acts as a kind of stay of operation of the order of the Tribunal. So long as that order of the Tribunal is not set aside, the Appellate Assistant Commissioner is bound to give effect to it, and if he fails to do it and by-passes it on the ground that the department has filed an appeal, it will be really a contempt of the Tribunal's order. In the circumstances, therefore, we should think that the Appellate Assistant Commissioner will, as he is bound to, follow the Tribunal's view- It is, of course, open to the Appellate Assistant Commissioner to take his own view on the facts, but, so far as the law propounded by the Tribunal is concerned, it is binding and it should be applied by the Appellate Assistant Commissioner to the facts before him.

Subject to these observations, the petition is dismissed. No costs.


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