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TMI Blog2003 (2) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... ved, all these writ petitions were heard together with the consent of counsel for both the parties and are being disposed of by the common judgment. 3.. The petitioners are dealers of toffee. The matter was argued with reference to writ petition No. 101 of 2000 by the counsel for both the parties; hence it is necessary to give the fact of that writ petition only. The petitioner, is a co-operative society having its registered office in the State of Gujarat and the petitioner has its principal place of business in the State of Uttar Pradesh. It appears that the original assessment for the assessment year 1996-97 was framed by the Assistant Commissioner (Assessment) by the order dated December 31, 1998, a copy where of has been filed as annexure 1 to the writ petition. A perusal of the assessment order for the assessment year 1996-97 shows that the question of rate of taxability of chocolate was very much debated before the assessing officer. Reliance was placed upon an order passed by the Commissioner under section 35 of the U.P. Trade Tax Act in the case of M/s. Hindustan Coco Products Ltd., wherein the Commissioner held that chocolate is a confectionary. Reference was also made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Pappu Sweets [1998] 111 STC 425; STI 1998 SC 97 and as such non-filing of the rejoinder-affidavit will not in any way affect the merits of the case. 6.. He further submitted that since some of the writ petitions have been filed against the notices issued under sections 21 and 22 of the Act while in some writ petitions orders passed under sections 21 and 22 have been challenged, which are appealable, the writ petitions are not maintainable on the ground of alternative remedy. He has submitted that the writ petition against the show cause notice is not maintainable and in support of this submission he has placed reliance upon (1995) 8 JT 331 (SC) (Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh). 7.. Existence of alternative remedy is not an absolute bar. It is a self-imposed restriction by the courts not to exercise their discretion under article 226 in appropriate cases. Since in the present case questions of law are involved as well as the interpretation of the judgment of the Supreme Court in Pappu Sweets [1998] 111 STC 425; STI 1998 SC 97 we have rejected the arguments of the learned Standing Counsel and proceeded to hear the case on merits. 8.. Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luded industries contained in the notification for the purposes of section 4-A of the Act. The judgment of the Supreme Court is prefaced with a view to step up automatic growth by promoting development of certain industries in the State, the Uttar Pradesh Government decided grant of exemption from payment of sales tax to new industrial units and to units undertaking expansion, diversification or modernisation. To achieve that object it issued a notification on July 27, 1991 under section 4-A of the Act. Annexure 2 to the said notification contains the list of industries not entitled to the facility of exemption or reduction in rate of tax. In that connection the Supreme Court was considering the matter. The observations made by the Supreme Court should be read in that light. The learned Standing Counsel has submitted that the Supreme Court has declared in the aforesaid judgment that toffee is liable to be taxed as unclassified item and now there is no further scope for arguments. To our mind, such an interpretation put by the learned Standing Counsel on the judgment of the Supreme Court is reading the judgment totally out of context in which the questions arose for decision in that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in excess of five per cent is to be waived and neither any tax nor interest can be realised. The circular issued by the Commissioner is binding upon the authorities vide [2001] 122 STC 100 (SC); [2001] 248 ITR 338 (SC); 2000 UPTC 472 (Commissioner of Sales Tax v. Indra Industries). A perusal of the letter of the State Government dated February 13, 2002, issued to the Commissioner, Trade Tax, shows that a representation was made by the dealers of toffee to the State Government that toffee was always treated as sweetmeat by the department prior to January 16, 2000 and the tax was imposed and realised accordingly. On the representation of the dealers of toffee the State Government directed by the aforesaid letter dated February 13, 2002 for the waiver of tax and interest in excess of five per cent on toffee. 12.. Reliance was also placed upon a single Judge judgment of this Court in Commissioner of Sales Tax U.P., Lucknow v. Babani Company 1984 UPTC 81. In the said case it was held that sweetmeat in its wider scope takes in confectionery also. 13.. Power under section 22 of the Act is very limited. The assessing officer is empowered to issue notice under the aforesaid section onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of later decision of the High Court declaring correct law on the point. The said ruling is not applicable to the facts of the present case as the Supreme Court in the case of Pappu Sweets [1998] 111 STC 425; ITR 1998 SC 97, has not declared that for the purposes of rate of tax, toffee is not sweetmeat and is liable to be taxed as unclassified item. At the cost of repetition the Supreme Court was considering the matter for grant of exemption from trade tax to new industries under section 4-A of the Act. 15.. Now we take up individual cases. Civil Misc. Writ Petition No. 101 of 2000. 16.. An additional issue has been raised by the assessing officer in the notice under section 21 of the Act. The assessing officer has sought to reopen the assessment of the turnover of mustard oil. It has been mentioned in the said notice that the mustard oil and refined mustard oil are two different commodities. The refined mustard oil in original proceedings has been taxed as mustard oil, which is different from mustard oil. Refined mustard oil comes into existence after processing mustard oil and as such it should be taxed at the rate of 8+2 per cent and not at the rate of 2.5 per cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the assessment year 1996-97 is quashed. The relief for quashing the assessment proceedings for the assessment year 1996-97, both under the U.P. Trade Tax Act and the Central Sales Tax Act is refused. The writ petition is allowed in part, accordingly. Writ Petition No. 912 of 1999. 21.. Notices under section 22 of the Act for the assessment years 1993-94 and 1995-96 dated August 27, 1999 are quashed. However the relief for quashing the notice for the assessment year 1999-2000 is refused. The writ petition is allowed in part. Writ Petition No. 727 of 2000. 22.. Notice under section 22 of the Act for the assessment year 1998-99 is quashed and the writ petition is allowed, accordingly. Writ Petition No. 310 of 2000. 23.. The petitioner has challenged the order passed under section 22 of the Act levying tax on the turnover of toffee and the assessment order for the assessment year 1999-2000. The petitioner has an alternative remedy by way of filing appeal under section 9 of the Act. The writ petition is dismissed on the ground of alternative remedy. If the petitioner files appeals within 15 days from today, the appeals shall be heard and decided on merits without taking any o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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