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2013 (7) TMI 430 - HC - VAT and Sales TaxPower of Commissioner u/s 70 of Chhattisgarh Value Added Tax Act 2005 - determination of rate of tax - Held that - procedure prescribed under rule 79 of Chhattisgarh Value Added Tax Rules, 2006 shows that the proceedings before the Commissioner are quasi judicial in nature; he exercises quasi judicial power and not administrative power - Under sub-section (2) of section 70 70(2) of the Act, the decision of the Commissioner is final as no appeal or revision lies under the Act. It is also binding upon all the authorities mentioned in section 3 of the Act except when they are deciding the appeals - the power exercised by the Commissioner is quasijudicial in nature and not administrative. The single judge after considering the submissions of the parties has dismissed the writ petition; substance of the order is under Article 227 and no power under Article 226 of the Constitution has been exercised. - the writ appeal is not maintainable. Following decision of State of Kerala and others Versus Travancore Chemicals and Manufacturing Co. and another 1998 (11) TMI 526 - SUPREME COURT OF INDIA , Commissioner of Sales Tax, UP Lucknow Vs M/s Super Cotton Bowl Refilling Works 1989 (2) TMI 115 - SUPREME COURT OF INDIA and Manmohan Singh Jaitla vs Commissioner Union Territory of Chandigarh and Others 1984 (12) TMI 269 - SUPREME COURT - Decided against Assessee.
Issues Involved:
1. Nature of the power exercised by the Commissioner under Section 70 of the Chhattisgarh Value Added Tax Act, 2005 (quasi-judicial or administrative). 2. Maintainability of the writ appeal against the order of the single judge. Detailed Analysis: Nature of Power Exercised by the Commissioner: 1. Main Question: The primary issue is whether the power exercised by the Commissioner under Section 70 of the Chhattisgarh Value Added Tax Act, 2005 (the Act) is quasi-judicial or administrative in nature. 2. Facts: The Appellant, engaged in selling consumer electronic products, contested the tax rate applied to Digital Still Image Video Cameras (DSCs) by the Commercial Tax Department, claiming they should be taxed under entry 63 of part-II of schedule-II as IT products, not under the residual entry. 3. Commissioner's Order: The Commissioner, after a hearing, determined the tax rate under residual entry-1 part-IV of schedule-II, which was upheld by the single judge. 4. Legal Framework: Section 70 of the Act allows dealers to question the tax rate on goods, requiring the Commissioner to determine the rate following a prescribed procedure. Rule 79 of the Chhattisgarh Value Added Tax Rules, 2006 outlines this procedure, emphasizing a detailed enquiry and opportunity for the dealer to be heard. 5. Judicial Precedents: - The Supreme Court in the Super-Cotton case held that the Commissioner's decision under a similar provision in the UP Sales Tax Act was quasi-judicial. - In contrast, the Travancore-Chemicals case involved a provision under the Kerala General Sales Tax Act, where the Supreme Court remarked that the order was administrative, but this was in a different context. 6. Conclusion: The High Court concluded that the Commissioner's power under Section 70 is quasi-judicial due to the detailed procedural requirements and the nature of the decision-making process. Maintainability of the Writ Appeal: 1. Submissions: The Respondent argued that the Commissioner's order is binding on authorities except during appeals and that the Appellant had other remedies available, making the writ appeal inappropriate. 2. Legal Basis: Section 70(2) of the Act states that the Commissioner's decision is final and binding, except in appeals. The High Court noted that the Commissioner acts as a Tribunal under Article 227 of the Constitution. 3. Judicial Review: The High Court referenced the Jaitla case, where the Supreme Court held that quasi-judicial authorities are subject to judicial review under Article 227. 4. Substance Over Form: The High Court emphasized that the nature of the single judge's order, rather than the writ petition's heading, determines whether it falls under Article 226 or 227. The single judge's dismissal of the writ petition was essentially under Article 227. 5. Conclusion: The writ appeal was deemed not maintainable as it was substantively under Article 227, and the High Court's supervisory jurisdiction did not extend to appeals under Article 226 in this context. Conclusions: (a) The Commissioner exercises quasi-judicial power under Section 70 of the Chhattisgarh Value Added Tax Act, 2005. (b) The writ appeal is against the order of a quasi-judicial authority and falls under Article 227 of the Constitution. (c) The writ appeal is not maintainable. Decision: The writ appeal was dismissed as not maintainable.
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