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TMI Blog1996 (2) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... . 10186 of 1988 relates to the assessment year 1985-86 and the notice which has been challenged in C.W.P. No. 10188 of 1988 relates to the assessment year 1984-85. From the averments made in the writ petitions it appears that the petitioner has entered into different transactions during various years and the notices have been issued by the respondents to the effect that the petitioner has not paid tax as per the provisions of the Act in respect of these transactions. 3.. The case set up by the petitioner is that it has installed one sheller of two metric tonnes capacity on the leased premises and it is engaged in the business of export of basmati rice and during different years it exported different quantities of rice. The petitioner s claim is that it has exported 100 per cent of the rice manufactured by it after purchasing paddy within the State of Punjab and after husking the same. The petitioner says that in terms of section 4B of the Act no purchase tax is payable on the paddy purchased by it because the rice manufactured by it is being sent outside India and the respondent has no jurisdiction to issue notice in terms of section 10(b) of the Act for imposition of penalty or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had become liable to pay penalty under section 10(6) and interest under section 11(d) of the Act and no fault can be found with the action initiated by the respondent. The respondent has contested the claim of the petitioner that its case is covered by section 4-B of the Act and has further stated that paddy and rice are different commodities under Schedule C of the Act. Reliance has been placed by the respondent on the decisions of the Supreme Court in Ganesh Trading Co. v. State of Haryana [1973] 32 STC 623 and Babu Ram Jagdish Kumar Co. v. State of Punjab [1979] 44 STC 159. 5. At the commencement of hearing learned Advocate-General, Punjab, brought to our notice that C.W.P. No. 2300 of 1993 filed by M/s. Satnam Overseas Ltd. has been dismissed by a Division Bench on October 19, 1995 along with C.W.P. No. 2302 of 1993, and as the petitioner has directly approached this Court on the premise that it would be futile for it to file appeal in view of the case of M/s. Satnam Overseas Rice Sheller, this writ petition should also be dismissed. He also invited our attention to the decision of the Full Bench dated August 17, 1995, in C.W.P. No. 6071 of 1993 (United Riceland Limited v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... First objection of the learned Advocate-General is that when the petitioner has got an effective alternative remedy available to it under the Act, this Court should not entertain the writ petition and leave it to the petitioner to avail the alternative remedy. In substance the argument is that when the Act itself has provided a complete machinery for adjudication of disputes relating to the liability of the petitioner to pay a particular tax or the amount of tax, this Court should refrain from exercising its extraordinary jurisdiction and give relief to the petitioner. Learned counsel for the petitioner opposed the argument of the learned Advocate-General and submitted that the petitioner should not be nonsuited on the ground of alternative remedy because after due consideration of this issue the Division Bench admitted the writ petition. He argued that the point raised in the writ petition is a pure issue of law and, therefore, even though the Reported in [1997] 104 STC 362. petitioner has not resorted to the remedies available under the statute the court should not at this stage of the proceedings relegate the petitioner to the remedies available to it under the statute, more s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... six years of its admission would lead to an inference that the Division Bench, which heard the matter, did not apply its mind a proposition which we find no cogent reason to accept. Co-ordinate or smaller Benches of the court cannot in their enthusiasm to dispose of the cases draw such inferences indirectly casting aspersions on the competence of other brother Judges. A party to the litigation cannot be asked to satisfy a Bench finally hearing the matter that on an earlier occasion another Bench had correctly admitted the writ petition. Judicial propriety demands that in such matters the Bench hearing the writ petition does not make an order which directly or indirectly casts reflection on the competence and ability of other Benches of co-ordinate jurisdiction. We do not find any merit in the objection of the learned Advocate-General, namely, that the petitioner should be deprived of a right of its case being considered on merits merely because it has failed to avail an alternative remedy. 9.. Second objection of the learned Advocate-General is that seriously disputed questions of fact are involved in the writ petition and, therefore, this Court should not exercise jurisdiction u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionate suggesting that the petitioner has not been exporting the entire rice manufactured by it. During the year 1985-86 the difference is almost six times between the paddy purchased including the stock on the one hand and the rice exported on the other hand. Similarly, during the year 1986-87 the difference is over three times. Therefore, there is substance in the contention of the learned Advocate-General that the disputed questions of fact are involved and the court cannot decide the case on the assumption that the petitioner is a 100 per cent exporter. In our opinion, it was for the petitioner to have produced clinching proof of its being a 100 per cent exporter and its failure to do so furnishes a strong ground to decline interference by this Court with the notice issued by the respondent. 11.. We may have yet directed to petitioner to give a reply and then take other steps under the Act of 1948 for vindication of its stand, but having taken note of the plea of the learned counsel for the petitioner that we should reconsider the ratio of the two decisions of this Court in United Riceland Limited v. State of Haryana [1997] 104 STC 362 [FB] and Satnam Overseas Ltd. v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he commencement of this Act. 4-B. Levy of purchase tax on certain goods.-Where a dealer who is liable to pay tax under this Act purchases any goods other than those specified in Schedule B, from any source and- (i) uses them within the State in the manufacture of goods specified in Schedule B, or (ii) uses them within the State in the manufacture of any goods other than those specified in Schedule B, and sends the goods so manufactured outside the State in any manner other than by way of sale in the course of inter-State trade or commerce or in the course of export out of the territory of India, or (iii) uses such goods for a purpose other than that of resale within the State or sale in the course of inter-State trade or commerce or in the course of export out of the territory of India, or (iv) sends them outside the State other than by way of sale in the course of inter-State trade or commerce or in the course of export out of the territory of India, and no tax, is payable on the purchase of such goods under any other provisions of this Act, there shall be levied a tax on the purchase of such goods at such rate not exceeding the rate specified under sub-section (1) of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the provisions of this Act and the Rules made thereunder on the production of proof regarding the payment thereof in the State. (3) At any time, before the goods leave the State, the officer in-charge of the check-post or barrier established or erected, as the case may be, under this Act, at the point of exist from the State, or any other officer not below the rank of an Assistant Excise and Taxation Officer or such other officer as State Government may, by notification, appoint, at any other place shall determine the tax due and direct the owner, driver or other person in-charge of the goods carrier or the owner, or person in-charge of the goods to pay the amount of tax due within such time and manner, as may be prescribed. (4) The officer directing the payment of tax under sub-section (3) may, in the case of failure of the person concerned to pay the tax as directed, require him to furnish adequate security to his satisfaction in the manner prescribed to ensure the payment of tax due and in case such person fails to furnish the security, the amount of tax due shall, notwithstanding anything contained in sub-section (1) of section 30, immediately become payable and shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of purchase tax, particularly, when there is no evidence available on record to prove that it has been exporting the entire quantity of rice manufactured out of the paddy purchased by it. 14.. Before we proceed further and at the cost of repetition we would like to emphasise that the petitioner has not been able to produce concrete evidence before the court that it has exported the entire rice manufactured out of the paddy purchased by it. We may also note that vires of section 4-B has been challenged in more than one petition and the matter has been finally set at rest by the decision of the Supreme Court in Devi Dass Gopal Krishan Pvt. Ltd. v. State of Punjab [1994] 95 STC 170; (1994) Supp 2 SCC 59. In that case their Lordships of the Supreme Court considered the vires of section 4-B in the context of section 9(1)(b) of the Haryana General Sales Tax Act, 1973, as interpreted in Goodyear India Ltd. v. State of Haryana [1990] 76 STC 71 (SC); (1990) 2 SCC 71, and also the subsequent decisions rendered in Hotel Balaji v. State of Andhra Pradesh [1993] 88 STC 98 (SC); (1993) Supp 4 SCC 536 and Mukerian Papers Ltd. v. State of Punjab [1991] 81 STC 152 (SC); (1991) 2 SCC 580. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of this Court interpreted the provisions of 1948 Act along with appendices B and C and held that paddy and rice are two different items covered by two different entries of appendix C . This decision has been affirmed by a Full Bench in Desh Raj Parshotam Lal v. State of Punjab [1978] 42 STC 429 (P H). Although in Malwa Sugar Mills Co. Ltd. v. Assessing Authority (Excise and Taxation Officer) [1976] 38 STC 39 (P H), a learned Single Judge took a different view, but in our opinion that decision cannot be regarded as a good law in view of the two subsequent decisions of a Division Bench [Satnam Overseas Ltd. v. State of Punjab (C.W.P. No. 2300 of 1993 decided on 19th October, 1995) and a Full Bench [United Riceland Limited v. State of Haryana [1997] 104 STC 362]. This view has also been indicated in the judgment of the Supreme Court in Jagatjit Sugar Mills v. State of Punjab [1995] 96 STC 344. 16.. In the light of the fact that paddy and rice are two different commodities and are two different specified goods in appendix C , we shall now see whether the judgments of the Division Bench and the Full Bench require re-examination. 17.. In United Riceland Limited v. State of Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners liable to the tax liability................... The Full Bench then proceeded to examine the claim of the petitioner regarding exemption from payment of purchase tax. It referred to the various decisions of the Supreme Court, including that of Jagatjit Sugar Mills v. State of Punjab [1995] 96 STC 344, and then observed: As earlier noted in the aforesaid judgments of the Supreme Court in Hotel Balaji s case [1993] 88 STC 98; (1993) Supp 4 SCC 536 and Murli Manohar s case [1991] 80 STC 79, the Supreme Court made reference to the provisions of the Act while interpreting the law of other States. Such observations or contentions made or noted in the judgment of the Supreme Court while interpreting the provisions of the law pertaining to other States may not be deemed finally decided as admittedly the Haryana Act was not called upon to be adjudicated. The judgment proceeding on concessions whether implicit or implied and admittedly not on analysis or examination of the relevant provisions cannot be held to be declaring the law within the meaning of article 141 of the Constitution. The obiter dictum cannot be treated as precedent particularly when such obiter dictum is not found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Punjab [1995] 96 STC 344, the Division Bench held: 24. Therefore, it is amply clear from the above judgments that paddy and rice are two different items and paddy ceases to be paddy when rice is manufactured out of it. So, even if it is held that paddy is covered under Schedule B, section 4-B of the Act will not be applicable because it would be purchase of goods other than the goods specified under Schedule B. Even if it is held to be not specified in Schedule B and sent out of State in the course of export out of the territory of India because no purchase tax had been paid on the paddy, tax can be levied under section 4-B also. 25........................... 26.. As against this, learned State counsel has argued that it is not the rice which they have taxed. They have taxed the paddy because it has been used for manufacturing rice and because rice and paddy are two different items. In the light of the discussion in the foregoing part of this judgment, we accept the submission of learned State counsel. In view of the aforesaid reasons, the petitioners will not be in a position to get an advantage of section 29 of the Act also. 19.. A careful reading of the judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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