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TMI Blog1987 (4) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the said order was passed under the provisions of the Andhra Pradesh General Sales Tax Act, 1957. It was stated by the writ petitioners that their business consisted, inter alia, of exporting chrome ores and although they were registered as a dealer within the meaning of the Central Sales Tax Act, 1956, they were not registered as dealer under the State of Andhra Pradesh. It was their further case that at all material times, no person was granted licence by the Government of India, for the purpose of exporting mineral ores and they have stated that any person intending to export any metal or mineral, was required to do so, through the Mineral and Metal Trading Corporation of India Ltd., which would hereinafter be referred to as the said M.M.T.C. was in fact performing the function which was used to be performed by the State Trading Corporation. The writ petitioners have also stated that they agreed to sell and M/s. Philipp Brothers (Overseas) A.G., Baurstrasse 59 C.H. 63001, Z.U.G. (Switzerland), which would hereafter be referred to as foreign buyer, had agreed to purchase chrome ores from them and in pursuance to the concerned agreement, on or about 8th February, 1966, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 226 of the Constitution of India and as a writ of certiorari has been asked for, quashing the proceeding/assessment, which had been made in the State of Andhra Pradesh, this Court had no jurisdiction, because the concerned records were lying outside their jurisdiction and it was also contended that in this case, the property in the goods had passed at the port of Vizagapatnam and therefore, the sale took place within the limits of the State of Andhra Pradesh and the respondent-Commercial Tax Officer had jurisdiction under the Andhra Pradesh General Sales Tax Act, to impose tax and since the sale to the said M.M.T.C. by the petitioner, was separate and independent from the bargain with the said foreign buyer, the sale of the petitioners to the said M.M.T.C. could not be considered to be sale in the course of export entitling exemption either under article 286 of the Constitution of India or under the provisions of the Central Sales Tax Act. After referring to the celebrated decisions of the Supreme Court, including the one in the case of Coffee Board v. joint Commercial Tax Officer, Madras [1970] 25 STC 528 and after distinguishing the said case in the facts of the present one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere at all times in a bonded warehouse, the delivery was on board a foreign going ship and the goods were to be consumed on the high seas; the property in the goods passed only after the goods had crossed the customs frontiers and did not pass in Tamil Nadu, and the sales were, therefore, in the course of export; and (ii) the sales took place in territorial waters of India within the jurisdiction of the Union of India and outside Tamil Nadu. The sales tax authorities held that the sales took place in Tamil Nadu where appropriation of the goods took place and imposed sales tax. For the year 1964-65, the Tribunal held that the sales could not be deemed to have been taken place within Tamil Nadu. On revision, the High Court held that the sales took place in Tamil Nadu and the assessment to tax was valid. There were similar decisions of the High Court upholding the assessment to tax for the years 1968-69, 1970-71, 1978-79 and 1979-80. The company preferred appeals to the Supreme Court for the years 1964-65, 1968-69 and 1970-71 and filed petitions for special leave to appeal for the years 1978-79 and 1979-80. For the year 1972-73 the company filed a writ petition in the Supreme Court ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Dutta, thus we shall have to see whether this Court has or had jurisdiction to entertain the writ application. In support of his submissions, that in view of the availability of the alternative remedy, the jurisdiction of this Court to entertain the writ petition was barred. Mr. Dutta referred to the case of Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315 (SC); AIR 1983 SC 603. That was a case, which was initiated against the order of assessment made by the Sales Tax Officer under the Orissa Sales Tax Act, whereunder the petitioner/assessee, could get adequate redress against the wrongful acts complained of and it has been observed by the Supreme Court, that when the Act provides for a complete machinery to challenge an order of assessment, the impugned orders of assessment could only be challenged by the mode prescribed by the Act and not by a petition under article 226 of the Constitution of India, since it is now wellrecognised, that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute only, must be availed of. On the analogy of the determinations of the Supreme Court as incor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 653, for the purpose as indicated in the judgment. Mr. Dutta pointed out that all proceedings in the instant case to be initiated within the State of Andhra Pradesh and only a notice as in the case of Swaika Properties AIR 1985 SC 1289, was served here at Calcutta, such service according to him, would not give jurisdiction to this Court to entertain the writ petition, as such service would not give rise to a "cause of action ", arising in part. We are of the view that Titaghur Paper Mills' case [1983] 53 STC 315 (SC); AIR 1983 SC 603 would have been distinguished and even if on such determination, this Court could be moved, if the orders impeached was either void or a nullity. Since we are of the view that the order as issued in this case was neither void nor a nullity, the determination in Titaghur Paper Mills' case [1983] 53 STC 315 (SC); AIR 1983 SC 603 would stand in the way of the writ petitioners, to have their petition maintained in this Court. We are also of the view that following the determination in Swaika Properties' case AIR 1985 SC 1289, this Court cannot be said to have jurisdiction to entertain the writ petition in the facts of this case. Such and above being o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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