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TMI Blog1971 (8) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... Calcutta from where instructions are sent to its factory at Izatnagar to despatch the goods to the customers at the place of their business. The case of the respondents is that for the sale of its products to the customers, delivery has to be made f.o.r. Izatnagar and the goods are despatched from Izatnagar to the customer's place of business; that instructions are sent by the head office in Calcutta to its factory at Izatnagar to despatch the goods in terms of the agreement for sale; that when the goods are ready they are unconditionally appropriated by its factory to the respective contracts and thereafter despatched by rail direct to the customer's place of business; that the railway receipts are taken in the name of the respondents as consignor and "self" as consignee; that the railway receipts are sent to its respective offices from whose territory the orders emanated and that the concerned offices prepare bills, collect payments and then endorse the railway receipts and deliver them to its customers. The respondents contend that during the period of 1st July, 1957, to 31st March, 1958, through its Delhi office, they entered into agreements with the customers for sale to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es effected by them in Delhi as it is contended that it was at Izatnagar in Uttar Pradesh that the goods were moved in pursuance of the interState sales and it was at that place where the goods were appropriated to the contracts for sale and deposited the tax with the Sales Tax Officer, Bareilly, on the basis of its return on all its sales throughout India including the sales made by the respondents to its customers in Delhi. The respondents were assessed to sales tax on the transactions of sales made by it to parties in Delhi by the Sales Tax Officer, Bareilly, Uttar Pradesh, by his order dated 31st January, 1960, which was subsequently modified by order dated 31st December, 1961. Despite the fact that the respondents had been assessed by the Sales Tax Officer, Uttar Pradesh, and the respondents have made payments of the sales tax to the Sales Tax Officer, Bareilly, the Sales Tax Officer, Ward No. 13, Delhi, made an assessment order levying the sales tax on the same transactions on which the res. pondents had already been taxed by the Sales Tax Officer, Bareilly, on the ground that the place of sale was Delhi. This order of the Sales Tax Officer, Delhi, was challenged by the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, the appropriation referred to in section 4(2)(b) connotes the setting apart of goods as specific goods to be delivered cinder the contract of sale and not an appropriation linked with passing of property......In the petition as well as in the counter-affidavit emphasis has been mainly laid on 'unconditional appropriation' of the goods to the contract in Uttar Pradesh, but from the contentions of the assessee raised before the Sales Tax Officer, New Delhi, which have been quoted above, it does appear that the petitioner had argued that the goods were appropriated to the contract in Uttar Pradesh. The findings given by the Sales Tax Officer, New Delhi, are quite consistent with 'appropriation of goods' in Uttar Pradesh. He has given no clear finding that the goods were appropriated to the contract as distinguished from 'unconditionally appropriated' in Delhi. Without that finding the Sales Tax Officer could not assume jurisdiction to levy or collect the sales tax." In the result, the learned single judge allowed the petitions having regard to the fact that the petitioner had already paid the tax due on those transactions in Uttar Pradesh and without a firm finding regarding pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the appellants. It may be stated here that the parties before the learned single judge did not dispute that the sales in question to various parties in Delhi were sales in the course of inter-State trade and commerce within section 3 of the Central Sales Tax Act. The Sales Tax Officer, Delhi, also took the view that the transactions were in the nature of inter-State sales as contemplated by clause (b) of section 3, but according to him, the sale was effected when the goods were in movement from Uttar Pradesh to Delhi. The Sales Tax Officer, however, did not give any findings as to whether the goods were not appropriated to the contract in Uttar Pradesh, as alleged by the respondents. Under section 9 of the Central Sales Tax Act, the tax payable by any dealer under the said Act on sales of goods effected by him in the course of inter-State trade or commerce irrespective of the fact whether such sales fell within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by the Central Government in accordance with the provisions of sub-section (2) in the State from which the movement of the goods comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods in question were appropriated. Having assumed jurisdiction to assess the petitioners to tax without giving a finding on the questions now sought to be raised, we are of the opinion that it is not open to the appellants at this stage to make any grievance. The order of the Sales Tax Officer dated 28th March, 1962, has been quashed by the learned single Judge on the ground that he had no jurisdiction to assess the petitioner, more especially when the petitioner had already been assessed and had deposited the sales tax and that in the circumstances it would be unjust to burden the petitioner with the levy a second time. We do not find any cogent reasons to differ from the judgment of the learned single Judge. The other contention of the learned counsel for the appellants is that when an alternate remedy as provided under the Sales Tax Act was available to the respondents, the High Court should have declined to exercise jurisdiction under article 226 of the Constitution. In support of this contention, the learned counsel relied upon Smt. Ujjam Bai v. State of Uttar Pradesh and AnotherA.I.R. 1962 S.C. 1621., in which it was held that an order of assessment made by an authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which it was observed that normally speaking, parties must be left to have recourse to the procedure prescribed under the Punjab General Sales Tax Act, 1948, for redress of their grievances and they should not be encouraged to treat proceedings under article 226 of the Constitution as substitutes for the proceedings which are provided by the taxing statute itself. There can be no doubt about the principles laid down in the abovecited authorities but in the instant case, as noted in an earlier part of this judgment, the tax payable under section 9 of the Central Sales Tax Act, by any dealer under the said Act on sales of goods effected by him in the course of inter-State trade or commerce, irrespective of the fact whether such sales fell within clause (a) or clause (b) of section 3, has to be levied by the Government of India and the tax so levied shall be collected by the Central Government in accordance with the provisions of sub-section (2) in the State from which the movement of goods commenced, and the respondents have already been assessed by the Sales Tax Officer, Bareilly, and they have already deposited the tax so assessed and as such they cannot be made to pay the said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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