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TMI Blog1995 (11) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal, and also to declare that G.O. Ms. No. 693, Revenue dated May 18, 1965 is violative of section 8(2A) of the Central Sales Tax Act. 2.. M/s. Hallmark Tobacco Company Limited, Parklane, Secunderabad, is a registered company, engaged in sale of cigarettes. It is also seeking the same relief as the writ petitioner in the other writ petition. For the assessment year 1990-91, the first respondent estimated the sale value of the containers at Rs. 4,68,53,310 and subjected the same to tax at 3 per cent under the G.O. referred to above, and accordingly, the petitioner was called upon to pay a tax of Rs. 14,05,659. The petitioner preferred an appeal before the second respondent and asked for stay. As the post of Appellate Deputy Commissioner, Secunderabad is kept vacant, no orders of stay are passed. Hence this writ petition seeking for stay of collection of the said tax, pending disposal of the appeal before the second respondent, and also to declare that G.O. Ms. No. 693, Revenue dated May 18, 1965 is violative of section 8(2A) of the Central Sales Tax Act. 3.. In the counter-affidavit filed by the Commercial Tax Officer in both the writ petitions, it is stated that the dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntegral part of manufacture of cigarettes. The question of imposing tax on the notional value of packing material does not arise. He relies on Chapter XXIV(2) of the Central Excise Tariff Act, 1985 which is to the effect that in relation to products of heading No. 24.02 which relates to cigars and cheroots and of tobacco or tobacco substitutes, etc., labelling or relabelling of container and repacking of bulk packs to retail pack or the adoption of any other treatment to render the product marketable shall amount to manufacture. Hence packing of cigarettes shall also be deemed to be manufacturing process, and therefore, imposing of tax separately on packing material is wholly unauthorised. He further contends that unless there is a separate agreement of sale of containers, no separate tax can be imposed on them. He relies on certain decisions of the Supreme Court, viz., Hyderabad Deccan Cigarette Factory v. State of Andhra Pradesh [1966] 17 STC 624, Commissioner of Taxes v. Prabhat Marketing Co. Ltd. [1967] 19 STC 84 and Razack & Company v. State of Madras [1967] 19 STC 135 in support of his contention. As the finding of the assessing authority is that the sales of the contents, na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e told that the appeals were withdrawn when stay petitions came up for hearing before this Court in these writ petitions, probably because the petitioners were under the wrong impression that the validity of notification has to be gone into in the writ petitions. The petitioners had thus an effective alternative remedy by way of appeal and, in fact, they invoked the jurisdiction of the appellate authority by filing appeals, but they were subsequently withdrawn. The learned counsel for the petitioners contends that availability of alternate remedy is not a bar always for maintainability of writ petitions. In support of his contention, he relies on Hirday Narain v. Income-tax Officer AIR 1971 SC 33 and Bhadrachalam Paperboards Ltd. v. Union of India (1993) 1 An WR 139. In the first of the cases, the Supreme Court observed that if the High Court had not entertained the petition, the assessee could have moved the Commissioner in revision because by that time, the period prescribed for preferring revision had not expired. But in the present cases, the appeals were filed and withdrawn. At the same time, the assessment orders were not challenged. Only after the arguments were partly heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ped to decide these issues." In Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315 (SC); AIR 1983 SC 603, it was observed thus: "Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under sub-section (1) of section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under article 226 of the Constitution. It is now well-recognised 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." Then after referring to the decision in K.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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