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TMI Blog2002 (3) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction of 4/6 lane of national highways of north, south, east and west of the Agra Gwalior section of NH-3 and for laning of 24 kms. to 41 kms. of Agra Bholpur section of NH-3 in the State of U.P. Besides that, work of maintenance and repair of NH-2 U.P.-3 in the State of U.P. was also given. It was also awarded work by the Construction Division, Agra and Mathura for strengthening and widening the roads and maintenance and repairs of certain roads. It applied for grant of recognition certificate under section 4-B of the Act for the purchase of raw material for manufacture of hot mix material in its hot mix plant. The Trade Tax Officer rejected the request of the petitioner against which an appeal was preferred before the Deputy Commissioner (Appeals), Trade Tax, which was also dismissed vide order dated April 24, 1997. The aggrieved petitioner thereafter preferred Second Appeal No. 75 of 1997 before the Trade Tax Tribunal, Agra. The learned Trade Tax Tribunal, Agra, having heard the parties found that the hot mix material is manufactured by the appellant-petitioner in the hot mix plant from cement, sand, grits, bitumen, etc., for the construction of roads. It is also found that fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itumen, etc., by paying tax at the rate of 20 per cent rendering whole contract inviable and it may be compelled to stop the construction. 5.. On the other hand, Shri Kesarwani, learned Standing Counsel opposed the writ petition and submitted that the impugned order is merely a notice calling upon the petitioner to show cause and therefore, this petition is premature and the appropriate remedy available to the petitioner is to raise all the contentions before the assessing authority. He, however, contended that the goods manufactured by the petitioner cannot be sold either in the State or in the course of inter-State trade as provided under sub-section (2) of section 4-B of the Act nor the final product of the petitioner is for sale hence the benefit of section 4-B of the Act is not available to the petitioner. In short the submission is that the goods manufactured by the petitioner is not intended to be sold and, therefore, benefit of section 4-B cannot be extended to the petitioner and the impugned notices for cancellation of recognition certificate has rightly been issued. 6.. We have considered the submissions made on both sides. Admittedly, the petitioner is manufacturing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the execution of works contract are deemed to be sold. "Goods" is defined in section 2(d) of the Act in the following terms: " 'goods' means every kind or class of movable property and includes all materials, commodities and articles involved in the execution of a works contract, and growing crops, grass, trees and things attached to, or fastened to anything permanently attached to, the earth which under the contract of sale are agreed to be severed but does not include actionable claims, stocks, shares, securities 'or postal stationery sold by the Postal Department'." "Manufacture" is also defined under section 2(e-1) of the Act which is as under: " 'manufacture' means producing, making, mining, collecting, extracting, altering, ornamenting, finishing or otherwise processing, treating or adapting any goods; but does not include such manufacture or manufacturing processes as may be prescribed." 9.. In the case in hand, the activity of petitioner is to manufacture hot mix material from different raw materials such as bitumen, concrete, grits, chemicals, etc., in its hot mix plant. For that purpose the petitioner has got four hot mix plants and after processing the raw mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal. The apex Court in the case of Union of India v. Kamlakshi Finance Corporation Limited reported in AIR 1992 SC 711 held that the principles of judicial discipline require that the order of the appellate authorities should be followed unreservedly by the subordinate authorities and if this healthy rule is not followed the result will only be undue harassment to assessees and chaos in administration of tax laws. 13.. The apex Court in the case of Authorised Officer (Land Reforms) v. M.M. Krishnamurthy Chetty reported in (1998) 9 SCC 138, held that it is well-settled that even order which may not be strictly legal, become final and are binding between the parties if they are not challenged before the superior court. Similar view was again reiterated by the apex Court in the case of V.S. Charati v. Hussein Nhanu Jamadar (Dead) by L.Rs. reported in (1999) 1 SCC 273 and in para 9 of that judgment it was observed that a decision simply because it may be wrong, would not thereupon become a nullity. It would continue to bind the parties unless set aside. Therefore, the respondents having not challenged the order of the learned Sales Tax Tribunal dated July 19, 1997 are bound by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propriate order. Since we have already concluded in the foregoing paragraphs of this judgment that the impugned notice is without jurisdiction, this Court can entertain the writ petition while exercising its jurisdiction under articles 226/227 of the Constitution of India and the petitioner cannot be relegated to the jurisdiction of the assessing authority to show cause and explain the position before him, specially when the statement of facts averred in the writ petition is not denied so far as it relates to the activities of the petitioner, and also in the absence of any allegation regarding misuse of the recognition certificate. That apart, the assessing authority, i.e., Trade Tax Officer, Sector 14, Agra, respondent No. 3 being subordinate to the Commissioner of Trade Tax, is bound by the circulars and, therefore, asking the petitioner to give show cause pursuant to the notice would be illusory and an empty formality. 16.. Learned Standing Counsel pointed out that in Writ Petition No. 970 of 2001 (Khattar Co. Pvt. Ltd. v. State of U.P.) reported in [2002] 128 STC 401, this Court against the order of the Assistant Commissioner (Assessment-9), Trade Tax Agra, cancelling the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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