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TMI Blog1962 (5) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... n old gold ornaments are converted into bullion. All that happens is that the gold is freed from all its impurities which exist in the ornaments and in both stages it is the gold which is purchased and which is ultimately retained. This question arises also in a number of other petitions. As the matter is of importance and a Letters Patent Appeal lies as of right, it will be proper that this petition is decided by a Division Bench. I accordingly direct that the papers of this case be laid before my Lord the Chief Justice for constituting a Division Bench to decide this matter. In pursuance of the abovesaid order of reference, the petition came on for hearing before the Division Bench and the Bench made the following order on 2nd May, 1962. D.S. Nehra, for the petitioner. H.S. Doabia, Additional Advocate-General, for the respondents. ORDER INDER DEV DUA, J.-This petition under Article 226 of the Constitution has been referred to a Division Bench by D.K. Mahajan, J., on the ground that the question raised is of importance and also arises in a number of other petitions. The petitioner is a Hindu undivided family firm carrying on sarafa business at Ludhiana and is registered as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e acquisition of old ornaments for this purpose is a "purchase" within the meaning of section 2(ff) of the Sales Tax Act. By time the return was filed, the petitioner's appeal had already been dismissed and it is averred in the return that the same has been rightly dismissed. Before us a preliminary objection has been raised on behalf of Shri Doabia that the petitioner should have approached this Court through the proper channels by approaching the hierarchy of officers under the East Punjab General Sales Tax Act and this Court should not permit the petitioner to by-pass the procedure prescribed in the Act. As against this, Shri Nehra has submitted that there being no dispute in regard to facts, the only question which this Court is called upon to determine in this petition is a pure question of law whether or not purchase of old ornaments for the purpose of converting them into pure gold by removing the alloy falls within the purview of "purchase" as defined in section 2(ff). It is conceded that purchase of old ornaments for the purpose of making new ornaments would be covered by the definition of the word "purchase". The question being one of imposition of tax on a citizen it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefor." There is no difference between the above and the formulation by Das, C.J., in State of Uttar Pradesh v. Mohammed Nooh[1958] S.C.R. 595 at pp. 605-607; A.I.R. 1958 S.C. 86 at p. 93., where he observed: ".....It must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it, and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be grante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the presence of an alternative remedy this Court would feel disinclined in the exercise of its discretion to interfere on its writ side. But this is not a matter of jurisdiction and per se an alternative remedy would not stand in the way of this Court's power to interfere in a fit case. The writ Court must consider each case on its merits and determine whether or not the alternative remedy is adequate and effective, so as to induce the Court to stay its hands leaving the aggrieved applicant to exhaust the alternative remedy. In considering this matter, the nature of the right invaded, the grounds of challenge and the conduct of the petitioner are also relevant factors. The fact that the aggrieved applicant has by choosing to come to this Court allowed the alternative remedy to be barred by time may also by itself not be conclusive, though in certain circumstances it may not be wholly irrelevant. Now in the case in hand a learned single Judge has in view of the importance of the question raised considered it fit to refer the case to a larger Bench for authoritative decision and the petitioner has submitted that his arguments would be confined to the abstract question of law arisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer[1960] 11 S.T.C. 149; 62 P.L.R. 175. is equally unhelpful. Paragraph 15 of the judgment containing the observations of G.D. Khosla, C.J., on which reliance has been placed in substance says that ginned and unginned cotton have been looked upon by the Legislature as one and the same thing. This dictum has not been shown to be of any material assistance to the appellants. The point, as is clear from this paragraph, was considered from first principles. At pages 185 and 186 of the report, however, the etymological meanings of the word "manufacture" have been subjected by Tek Chand, J., to a detailed discussion and the learned Judge has also noticed a number of American decisions as also other decisions, but the petitioners' counsel has not been able to illustrate or point out as to how the final conclusion in the reported case supports him in his contention before us. On behalf of the respondents it has been contended that if some metal is separated from or taken out of the old ornaments then the process is included in the word "manufacture" as contemplated in the definition of "purchase" in section 2(ff). Assistance has been sought for this submission from the ratio of two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to a dealer who exercises his option under sub-clause (i) of clause (i) or to section 14 or to clause (d) of sub-section (1) of section 23." This definition is apparently broadly worded and prima facie it does not seem, as a matter of law, necessarily to exclude the process of converting old ornaments into bullion. Even the ratio of the authorities cited by the petitioners does not seem to me to support the broad proposition canvassed. As at present advised, therefore, I am of the view that even though there may conceivably be instances in which conversion of an old ornament into bullion may not involve any real manufacturing process (a question on which I need express no considered opinion on this occasion) I am wholly unable to subscribe to the general proposition that mere purchase of old ornaments for converting them into bullion would per se take the case out of the definition of the word "purchase" as contained in section 2(ff). Old ornaments are goods and so is bullion; both are goods of different categories and are saleable; conversion of the former category into the latter might well involve a manufacturing process, and if the conversion into bullion is intended for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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