2015 (3) TMI 738 - HC - VAT and Sales Tax

Maintainability of appeal - Application for condonation of delay - Bombay Sales Tax Act, 1959 - whether return of kerosene without N-parafin by the Petitioner No. 2 to the Petitioner No.1 amounts to return of goods. - Held that - it is not necessary to interfere with the impugned order in our discretionary and equitable powers under Article 226 of the Constitution of India at this preliminary stage. The matter is still at large and on merits. It may be that an application for stay is pending, however, considering the checkered history of the litigation and the time spent in prosecution of the same, we are of the opinion that this Writ Petition can be disposed of by appropriate clarifications. In the event the final orders in the Appeal are in any way adverse to the Petitioners, then, while challenging the same, the Petitioners can raise all contentions and grounds including as set out in the present Writ Petition to impugn the findings rendered at the preliminary stage on the point of power or the authority of the officer to present the Appeal and on the point of limitation. The Petitioners can, by way of appropriate proceedings, including requesting the Tribunal to forward certain questions of law for opinion and answer by this Court, request that the findings on the above two questions also raise questions of law and they may be referred for opinion and answer of this Court. - Petition disposed of.

Issues involved:
1) Challenge to order passed by Maharashtra Sales Tax Tribunal
2) Controversy between Petitioners and Department of Sales Tax
3) Rectification proceedings and subsequent orders
4) Appeal filed by State of Maharashtra
5) Maintainability and limitation of the appeal
6) Application for condonation of delay
7) Authority of the officer to present the appeal
8) Adjudication of the appeal on merits
9) Pending application for interim stay

Detailed analysis:
1) The judgment challenges the order passed by the Maharashtra Sales Tax Tribunal in VAT Appeal No. 113 of 2007. The controversy arose between the Petitioners and the Department of Sales Tax regarding the return of kerosene without N-parafin. The Commissioner of Sales Tax made an order on this matter on 14th March, 1996, which was later challenged and rectified. Subsequent appeals and orders led to a series of legal proceedings, including Writ Petitions and Appeals, resulting in the current challenge before the High Court.

2) The appeal filed by the State of Maharashtra faced challenges regarding its maintainability and limitation. The Tribunal initially dismissed the appeal as not maintainable, leading to a Writ Petition by the State Government. The Division Bench of the High Court found the appeal maintainable but directed the Tribunal to decide on the issue of limitation explicitly.

3) The Petitioners raised objections to the Tribunal's preliminary orders on maintainability and limitation. The Tribunal, however, allowed the application for condonation of delay and affirmed the officer's authority to file the appeal. This led to the filing of the instant Writ Petition challenging these preliminary orders and findings.

4) The learned Senior Counsel for the Petitioners argued that the application for condonation of delay lacked reasonable cause and did not meet the requirements of the Limitation Act. He also contested the authority of the officer to present the appeal, urging the Court to scrutinize the Tribunal's findings on these matters.

5) On the other hand, the Government Pleader for the Respondents argued that the Writ Petition was an attempt to delay the adjudication of the appeal on its merits. He emphasized the significant revenue implications of the State's appeal and urged the Court not to entertain the Writ Petition at that stage.

6) After hearing both sides and examining the petition, orders, and annexures, the Court decided not to interfere with the impugned order at the preliminary stage. The Court directed that if the final orders in the appeal were adverse to the Petitioners, they could raise all contentions, including those related to authority and limitation, in subsequent challenges. The Court also set a deadline for the Tribunal to dispose of the pending appeal, expecting cooperation from both parties.

7) The Court clarified that it had not expressed any opinion on the rival contentions raised and left it open for both parties to address them before the Tribunal at an appropriate stage. The Writ Petition was disposed of with no order as to costs, emphasizing the need for expeditious disposal of the pending appeal.

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