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TMI Blog1987 (4) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... ns as relate to a tax of the State Act. The facts pleaded by the plaintiff, which are not in dispute, are that they had paid the tax due from it regularly in due time for the financial years 1963-64 to 1968-69 the last such payment being made on 30th April, 1969, for the month ending 31st March, 1969. The respondent made an application for refund on 11th November, 1969 which was rejected by the Assistant Commissioner on 28th January, 1970. A decision of the Supreme Court in the identical case of Orissa Cement Ltd. was delivered on 22nd April, 1970 reported in [1971] 27 STC 118; AIR 1970 SC 1672 (Orissa Cement Ltd. v. State of Orissa) declaring that the rebate payable under section 13(8) of the State Act is applicable also to the tax paid under the Central Act by virtue of section 9(3) thereof. The respondent thereafter carried a revision before the Commissioner of Commercial Taxes, Orissa under rule 22 of the Central Sales Tax (Orissa) Rules, 1957 read with section 23(4) of the State Act as against the order of assessment passed by the Sales Tax Officer but no revision was made against the order of Assistant Commissioner refusing to allow the rebate. The Commissioner rejected the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such assessment or order as the case may be." Central Sales Tax Act: "Section 9. (3) The authorities for the time being empowered to assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, and subject to any rules made under this Act, assess, collect and enforce payment of any tax, including any penalty payable by a dealer under this Act, in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law including the provisions relating to returns, appeals, reviews, revisions, references, penalties and compounding of offences, shall apply accordingly." Section 9(3) of the Central Act was however substituted on 30th August, 1969 retrospectively from the commencement of the parent Act by section 9(2) as follows: "9. (1) ..................... (2) Subject to the other provisions of this Act and the rules made thereunder, the authorities for the time being empowere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m for refund due to a person on whatsoever account is doubtless a civil claim and is ordinarily within the cognizance of the civil court and hence the suit brought by the respondent would be maintainable unless it is found that such a suit is barred either under the express provisions of any statute or is impliedly barred under the provisions thereof. 5.. Before however such question of jurisdiction is considered, it is necessary to find out as to whether a claim of rebate is part of the assessment process and further whether the refund of the rebate due to the respondent had been provided for under the statute. The matter was considered in [1965] 16 STC 613 (SC); AIR 1965 SC 1942 (Kamala Mills Ltd. v. State of Bombay), wherein on elaborate discussion of the provisions of the Bombay Sales Tax Act it was held in para 21 thereof that whether or not a return is correct; whether or not transactions which are not mentioned in the return, but about which the appropriate authority has knowledge, fall within the mischief of the charging section; what is the true and real extent of the transactions which are assessable; all these and other allied questions have to be determined by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open for the appellant to have moved the Commissioner in revision against such order refusing the refund. Even if the revision would have been dismissed, the respondent could have invoked the extraordinary jurisdiction of this Court under article 226 of the Constitution of India though no opinion can be expressed as to whether such jurisdiction would have been exercised in favour of the respondent in view of the limitation which had set in. The fact remains that the remedies available under the statute were not pursued. 7.. It may now be examined as to how far the jurisdiction of the civil court has been ousted in entertaining the suit. I am not in a position to agree with the submissions of the learned Advocate-General that section 22 of the State Act would be ipso facto applicable to assessments of Central sales tax and hence the express bar under that provision excluding the jurisdiction of the civil courts would also be applicable to such assessments. Section 9(3) as it then was, or section 9(2) by which it was substituted, of the Central Act as referred to above merely authorised that a tax to be assessed and collected under the Central Act was to be made in the same proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular remedy for enforcing it, the remedy so provided by the statute must be followed and the civil court's jurisdiction is ousted. The scheme of the particular Act is to be examined to see if the remedies normally associated with actions in civil suits are prescribed by the statute vide paragraph 20 of AIR 1975 Orissa 219 [FB] (Magulu Jal v. Bhagaban Rai). It is indisputable that so far as the Central Sales Tax Act read with the Orissa Sales Tax Act is concerned, it provides enough remedies which are normally associated with actions in the civil court within the statute itself and hence the jurisdiction of the civil court to entertain such a suit has to be held as being impliedly barred. 9.. In view of such conclusion, the suit brought by the respondent was not maintainable and hence has to be dismissed. Further, because of the decision on the question of maintainability, it is also not necessary to decide the other question regarding limitation raised by the appellant. 10.. In the result, the appeal is allowed. The judgment and decree passed by the Subordinate judge are set aside and the suit is dismissed as not entertainable. There shall be no order as to costs. Appeal allo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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