9911796707
TMI Blog2002 (10) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... d process of reduction of strength of dyes as process of manufacturing and were paying due taxes, treating themselves as manufacturers so far as this activity is concerned. Accordingly, the petitioners were assessed for three assessment years, i.e., samvat year 2037, 2038 and 2039 on June 2, 1983, June 29, 1984 and April 10, 1985 respectively. 4.. The aforesaid assessment orders for all the three years though were appealable but, admittedly, no appeals were carried to challenge the legality and validity of the aforesaid assessment orders for the aforesaid three years, with the result, all these assessment orders have become final and conclusive. 5.. The petitioners, on February 6, 1986, made application under section 52 of the Act to the Commissioner of Sales Tax to determine the question as to whether or not the activity in reducing dyes amounts to "manufacture". The Deputy Commissioner, Mumbai vide his order dated December 30, 1986 held that the process of reduction of dyes did amount to "manufacture". 6.. Being aggrieved by the said finding recorded by the Deputy Commissioner, appeal was preferred to the Maharashtra Sales Tax Tribunal ("the Tribunal", for short). On March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that it was not necessary to challenge the assessment orders for earlier three years referred to hereinabove, as the machinery for granting refund is independently provided under the Act. He pressed into service the provision of section 43 of the Act in support of his submission, which reads as under: "Section 43. Refund of excess payment.-(1) The Commissioner shall refund to a person the amount of tax, penalty and interest (if any) paid by such person in excess of the amount due from him. The refund may be either by cash payment, or, at the option of the person by deduction of such excess from the amount of tax, penalty and interest due in respect of any other period: Provided that, the Commissioner shall first apply such excess towards the recovery of any amount due in respect of which a notice under sub-section (4) of section 38 has been issued, and shall then refund the balance (if any). (2) Where any refund is due to any dealer according to the return furnished by him for any period, such refund may provisionally be adjusted by him against the tax due and payable as per the returns furnished under section 32 for any period: Provided that, the amount of tax, penalty or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for and examine the record of any order passed (including an order passed in appeal) under this Act or the rules made thereunder by any officer or person subordinate to him, and pass such order thereon as he thinks just and proper: Provided that, no notice in the prescribed form shall be served by the Commissioner under this clause after the expiry of three years from the date of the communication of the order sought to be revised, and no order in revision shall be made by him hereunder after the expiry of five years from such date; (b) the Tribunal, on application made to it against an order of the Commissioner [not being an order passed under sub-section (2) of section 55 in second appeal] within four months from the date of the communication of the order, may call for and examine the record of any such order, and pass such order thereon as it thinks just and proper. (2) Where an appeal lies under section 55 and no appeal has been filed, no proceedings in revision under this section shall be entertained upon application. (3) No order shall be passed under this section which adversely affects any person, unless such person has been given reasonable opportunity of being hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prior to the filing of the writ petition. 15.. The facts in the above case of Bhadrachalam Paperboards Ltd. [1998] 111 STC 657 (SC) were altogether different than the present one. In that case there was no order of assessment. Under the terms of the contract, the amount of tax was reimbursed by the assessee to the forest department treating the transactions as sale transactions. The High Court did record that there was no sale of goods attracting tax, but since there was no averment in the petition to the effect that the burden of the tax had not been passed on to the customers, the assessee was held not entitled to claim refund of the tax already paid. The High Court was pleased to dismiss the petition. 16.. On appeal by the assessee to the apex Court, the decision of the High Court was reversed on the point of refund and it was held that the assessee was entitled to refund of tax collected for the period commencing three years prior to the date of the filing of the petition. It is thus clear that the question of assessment or reassessment was never involved in this case: whereas in the case in hand is the case: wherein the assessment orders have become final as such, in our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt held that no assessee can be allowed to reopen the assessment proceedings, that has been finally concluded against him, on the basis of a favourable decision in the case of another assessee. This is because an order which has become final in the case of an assessee will continue to stand until it is specifically recalled or set aside in his own case. The same is a view reiterated by the apex Court in the case of Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. (2000) 120 ELT 285 (SC), which reads as under: "Coming to the question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Having failed to challenge the same in the appellate forum, the petitioners allowed the said orders to become final. In Champalal Binani v. Commissioner of Income-tax [1970] 76 ITR 692 (SC); AIR 1970 SC 645 it was held that a writ of certiorari is discretionary: it is not issued merely because it is lawful to do so. In Moon Mills Ltd. v. M.R. Meher, President Industrial Court AIR 1967 SC 1450, it was observed by the apex Court that writ of certiorari is legally a matter of sound discretion and will not be granted, if there is a negligence or omission on the part of the petitioner to assert his right. Apart from the above, having accepted the said orders by the petitioners, we do not think, we would be justified in exercising writ jurisdiction in favour of the petitioners on the facts of these cases. 21.. A party cannot challenge the proceedings after long participation or acceptance of the order without raising any objection on the principle of acquiescence as held by the apex Court in the case of Prasun Roy v. Calcutta Metropolitan Development Authority (1987) 4 SCC 217. 22.. In the case of Har Avtar Singh v. State of Punjab (1982) 3 SCC 483, petitioner had filed writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
