9911796707
TMI Blog2009 (9) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Commissioner of Sales Tax under section 52 of the Bombay Sales Tax Act, 1959 (for short, "the Act") to get its product classified under entry 24 of Schedule C, Part I and also prayed that prospective effect be given to the order by virtue of the powers under sub-section (2) of section 52. By an order dated October 20, 1995, the Commissioner of Sales Tax held that the product of respondent No. 2 was covered by entry 86, Part II of Schedule C and was liable to tax at the rate of 15 paise in a rupee. Aggrieved by the order respondent No. 2 filed an appeal bearing No. 158 of 1995 before the Tribunal. The Tribunal heard the appeal filed by the petitioner along with another appeal bearing No. 4 of 1996 filed by M/s. Johnson & Johnson Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Misc. Application No. 171 of 2001) was not maintainable and, therefore, the order passed by the Tribunal was without jurisdiction. In the alternative, the learned A.G.P. submitted that assuming that the Tribunal had the power of rectification or entertaining the second application, treating it as an application for rectification, it could not be entertained after expiry of two years from the date of the original order or in any event from October 19, 2001 when the first rectification application was decided. We find merit in the submissions of the learned A.G.P. Section 52 of the Sales Tax Act confers power on the Commissioner to decide the matters mentioned in clauses (a) to (e) of sub-section (1) thereof, one of which is the rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second application for rectification is maintainable, it cannot be filed after two years. In the present case, second application under the caption "misc. application" was filed on December 8, 2001. That clearly after two years of the appellate order and even after two years of the rejection of the first rectification application on October 19, 1998. The second application, assuming second application lay, was clearly barred by limitation. Therefore, the Tribunal had no power to entertain it. The impugned order therefore has to be set aside. Though we have set aside the order, in our view, ends of justice require further order to be passed as indicated below. It was the contention of the petitioner that the Commissioner should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered only the common grounds raised in the two rectification applications which were decided by a common order. The ground of giving of prospective effect of the order of the Commissioner was required to be decided by the Tribunal first while deciding the appeal at the first instance and, in any event, while deciding the rectification application filed by the present respondent No. 2. As the said issue was not decided, respondent No. 2 was required to make the second application. As the second application was allowed, the respondent No. 2 had no occasion to challenge the first appellate order passed by the Tribunal in rectification application No. 73 of 1997. We are therefore of the view that the matter be remanded back to the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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