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TMI Blog2015 (3) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 15-5-2013 - GANGELE S.K. AND PALIWAL D.K., JJ. For the Appellant : H.D. Gupta, Senior Advocate with N.D. Gupta and Santosh Agrawal For the Respondents : Vivek Khedkar, Deputy Advocate-General, ORDER:- The order of the court was made by S.K. GANGELE J.- The petitioner has filed this petition against the order dated June 26, 2010 (annexure P/1), dated June 8, 2012 (annexure P-1/A) and also against the order dated June 28, 2010 (annexure P/2). The petitioner was assessed for payment of tax at 12.5 per cent on aluminium powder. As per the petitioner, he is not liable to pay tax on aluminium powder at 12.5 per cent. It is an admitted fact that the petitioner has not availed of the alternative remedy of appeal available to the petitioner under section 46 of the VAT Act and also under the Central Sales Tax Act. The petitioner submitted tax returns for the financial years 2007-08, 2008-09, 2009-10, calculating the rate of tax at four per cent. The authority assessed the tax of the petitioner at 12.5 per cent. Entry No. 36 of Schedule II, Part II of the VAT Act prescribes rate of tax on aluminium at four per cent. The aforesaid entry is as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sthan [1993] 91 STC 408 (SC); [1994] Supp 1 SCC 413, to contend that the words 'that is to say' prior to the mentioning of the different items would mean that anything which generally fell within the definition must be excluded except to the extent specified. This argument does not answer the case of the appellant, namely, that copra had been specified and copra and powdered copra are the same. When this court has already, as narrated earlier, come to the conclusion that the desiccated coconut in whatever form comes within the definition of copra, we see no reason to restrict the meaning of copra to exclude copra in powdered form. The submission of the learned SolicitorGeneral that regard must be had to the fact that the itemisation was in respect of oil-seeds also does not take us much further. It is nobody's case that copra is an oil-seed as generally understood. It has been deemed to be an oil-seed for the purposes of Act by statutory definition. If copra is an oil-seed according to the statutory definition, then powdered copra can also be an oil-seed, for the purposes of the notification. From the aforesaid decision of the honourable Supreme Court, it is clear t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Bench while deciding the aforesaid case distinguished the ratio decidendi of the Full Bench and preferred to follow the earlier division Bench decisions reported in Binod Mills Co. Ltd. v. Commissioner of Sales Tax, M.P. [1972] 29 STC 413 (MP) and Commissioner of Sales Tax, M.P. v. Samrathmal Dhoolchand reported in [1972] 29 STC 418 (MP) (App). It may also be pointed out that for the assessment year 1989-90, the assessing officer had assessed the sales tax at the rate of 12 per cent following the Full Bench view. That order was set aside by the Deputy Commissioner, Ujjain Division, holding that the Full Bench in Hukumchand Mills' case [1988] 71 STC 101 (MP) [FB]; [1987] MPLJ 570, is not for a proposition that the rate of tax payable on the sale of coal ash was at the rate of 12 per cent instead of four per cent. Despite the aforesaid order, the assessing officer for the period from April 1, 1990 to March 31, 1991 once again assessed the sales tax at 12 per cent. That order was challenged by the petitioner before this court in Writ Petition No. 959 of 1995 (decided on August 7, 2001) and it was held by the learned single judge that the ratio laid down in the Full Bench decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... native remedy, the honourable Supreme Court in the case of Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad reported in AIR 1969 SC 556, has held as under: When an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefor. But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self-imposed limitation, a rule of policy, and discretion rather than a rule of law and the Court may therefore in exceptional cases issue a writ such as a writ of certiorari, notwithstanding the fact that the statutory remedies have not been exhausted. There are at least two well-recognised exceptions to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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