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TMI Blog1998 (10) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... inflated sales without any ground reality and without giving a reasonable opportunity of being heard to the petitioner and (ii) in view of section 45(3) of the Act, the petitioner cannot file an appeal because it cannot be admitted, unless 20 per cent of the tax assessed is deposited by it. 3.. Against assessment order, an appeal lies under section 45 of the Act. The appeal being efficacious and adequate remedy, we cannot entertain this application merely because 20 per cent of the tax assessed is to be deposited by the petitioner. The question as to whether the impugned assessment orders contain inflated sales is a question which can more appropriately be decided in appeal on the basis of the materials produced by the parties. If the petitioner is dissatisfied with the assessment orders, it has to challenge the same before the appellate authority. It is not open to it to by-pass the statutory remedy. In Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. [1985] 154 ITR 172 (SC); AIR 1985 SC 330 the Supreme Court has laid down as under: "..........Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealer has to deposit 20 per cent of the tax assessed. The impugned provision is, therefore, discriminatory in nature and violates article 14 of the Constitution. The learned SC I has disputed the above submissions. 7.. Section 45 provides for an appeal against an order of assessment or penalty or both passed by the prescribed authority. Sub-section (3) of the said section, which is reproduced below, has laid down that no appeal shall be admitted unless the dealer objecting to the order of assessment has paid 20 per cent of the tax assessed or full amount of admitted tax whichever is greater: "45(3). No appeal under sub-section (1) or (2) shall be admitted unless the dealer objecting to an order of assessment has paid twenty per centum of the tax assessed or full amount of admitted tax whichever is greater." 8.. Recently, a division Bench of this Court in *Tinplate Company of India Ltd. v. State of Bihar 1997 (1) All PLR 521, while dealing with the contention as regards sub-section (3) of section 45 of the Act, has laid down as follows: On appeal from this decision, the Supreme Court has set aside the observations of the High Court on the merits of the case, made while dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of levy of tax and imposition of penalty and if such officer makes illegal assessment and raises exorbitantly high demand, on the basis of such assessment, it will cause serious prejudice to the dealer and in many cases even ruin him because he has to deposit 50 per cent of the tax assessed. It was, therefore, held that the power to levy tax or impose penalty conferred on the assessing officer without effective corrective machinery by way of appeal or revision is unreasonable, oppressive and uncontrolled. The relevant provision of the Tripura Sales Tax Act requiring payment of 50 per cent of tax assessed before admission of the appeal was accordingly declared as ultra vires being violative of article 14 of the Constitution. 10.. The M.P. High Court in Lachhmandas v. State of M.P. [1995] 98 STC 274 has dissented from the aforesaid decision of the Gauhati High Court and has upheld the Madhya Pradesh General Sales Tax Act under which a part of assessed tax was required to be deposited as a condition precedent for filing an appeal. The relevant extract from the said decision is reproduced below: "14. The right of appeal is a statutory right. It is open to the Legislature to provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the enforcement of the order appealed against in case the appeal is ultimately dismissed. It is open to the Legislature to impose an accompanying liability upon a party upon whom a legal right is conferred or to prescribe conditions for the exercise of the right. Any requirement for the discharge of that liability or the fulfilment of that condition in case the party concerned seeks to avail of the said right is a valid piece of legislation, and we can discern no contravention of article 14 in it......". 12.. The Collector of Customs and Excise, Cochin v. A.S. Bava AIR 1968 SC 13, on which reliance has been placed by the learned counsel for the petitioner, is not a case dealing with the question in issue in the present case. In that case, section 35 of the Central Excises and Salt Act, 1944 conferred unfettered right of appeal on a dealer without precondition of deposit of the assessed duty but by virtue of a notification issued by the Government applying the provision of the Customs Act, such a condition was imposed. The court struck down the notification holding that by notification the right of appeal under section 35 of the Central Excises and Salt Act, 1944 has been whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition on the ground of availability of alternative remedy: See Tin Plate Co. of India Ltd. v. State of Bihar [1999] 112 STC 543 (SC).-Ed. "..........Sales tax is the biggest source of revenue for a State and it is for the State to decide how and in what manner it will raise this revenue and to determine which particular transactions of sale or purchase of goods taking place within the State should be taxed and at what rates, and which particular transactions of sale or purchase of goods should be exempted from tax or taxed at a lower rate having regard to the subject-matter of sale, as for instance, where particular goods constitute necessities for the poorer classes of people or where the goods in question are of such a nature as are required to be exempted from tax or taxed at a lower rate in order to encourage a local industry. Consideration of these matters must, from the nature of things, differ from State to State. Similarly, it is for each State to determine the methods it will adopt to collect its revenue from this source and to decide which methods would be most efficacious for this purpose. The provisions of the sales tax law of each State must, therefore, ne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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