9911796707
TMI Blog2007 (6) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... owing the concessional rate of tax at three per cent on the turnover. Hence, the present writ petition with the prayer as stated above. I have heard the learned counsel and perused the material on record. Admittedly as against that order, an efficacious effective statutory appeal remedy is available and therefore, the petitioner is directed to file an appeal within a period of four weeks from the date of receipt of a copy of this order. The writ petition is disposed of on the above terms. No costs. [Against this decision the dealer filed appeals before the Division Bench of the Madras High Court] The judgment of the court was delivered by A.P. SHAH C.J. Admit. The learned Special Government Pleader (Taxes) waives service. By consent, the appeal is taken up for disposal. The appellant/firm is engaged in the manufacture of control panels and is an assessee on the file of the Commercial Tax Officer, Podanur Circle, Coimbatore. The appellant was assessed by the assessing officer on a total and taxable turnover of Rs. 28,56,370 in proceedings bearing TNGST No. 1800946/1996-97 dated February 27, 1998. At the time of original assessment, the appellant was allowed co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he lower rate of tax under sub-section (3) will apply. So far as the first requisite is concerned, the assessing officer himself has treated the goods sold as falling within the First Schedule. It was only on that basis he charged three per cent. There is no dispute about the second requisite being satisfied; for the purchaser is undoubtedly a dealer. The misapprehension of the department is particularly in respect of the third requisite. The assessee satisfies the requisite, if he complies with the proviso, and he is not called upon, beyond production of a declaration in form XVII, to show that the declaration has been given effect to. It is true that, in order to satisfy the third requisite, the goods sold should be for use by a purchasing dealer as component parts of some other goods to be manufactured. But the manner in which the seller has to satisfy the requisite is as provided in the proviso to the sub-section, namely, production of the declaration in the prescribed form. Once that is done, there is no further obligation on the part of the selling dealer and he will automatically be entitled to the concessional rate. If the declaration turns out to be false, in the sense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Act authorised to collect from the purchasing dealer the amount payable by him as tax on the transaction, and he could collect that amount only in the light of the declaration mentioned in the certificate in form C. . . . There was nothing in the Act and the Rules that for infraction of the law committed by the purchasing dealer by misapplication of the goods after he purchased them, or for any fraudulent misrepresentation by him, penalty might be visited upon the selling dealer. This court further observed that if the purchasing dealer held a valid certificate specifying the goods which were to be purchased and furnished the required declaration to the selling dealer, the selling dealer became, on production of the certificate, entitled to the benefit of section 8(1) of that Act. . . . . . . We are of the opinion that this submission has to be accepted. After all, the purpose of the rule was to make the object of the provisions of the Act workable, i.e., realisation of tax at one single point, at the point of sale to the consumer. The provisions of the rule should be so read as to facilitate the working out of the object of the rule. An interpretation which wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue. Except for a period when article 226 was amended by the Constitution (Forty-second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. In Harbanslal Sahnia v. Indian Oil Corporation Ltd. [2003] 2 SCC 107, the Supreme Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the petitioner seeks enforcement of any of the fundamental rights or where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In a recent judgment in State of H.P. v. Gujarat Ambuja Cement Ltd. [2005] 142 STC 1 (SC), a three-judge Bench of the Supreme Court after an exhaustive consideration of the earlier decisions held as follows: (paras 23 and 24, at p. 20) '. . . That being the position, we do not consider the High Court's judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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