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TMI Blog2005 (5) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ Petitioners were heard analogously and are being disposed of by this common judgment and order. 2. All the writ Petitioners are registered coal dealers and are assessable to taxes both under the Assam General Sales Tax Act, 1993 and the Central Sales Tax Act, 1956 read with the Central Sales Tax (Assam) Rules, 1957. During the course of their business, coals are transported within and outside the State of Assam by road. For transporting/carrying coal, the Petitioners are required to send road challans issued by the Superintendent of Taxes and for that purposes demand for security on every challan is made for every truck load of coal moved within and outside of the State of Assam. The Respondents insist that the security deposits challan be produced on the way whenever demanded at the check gates or otherwise and unless the same are produced, the trucks loaded with coal are not allowed to pass and/or proceed further and are kept detained until production of security deposits challans showing payment of security. 3. According to the Petitioners the above action on the part of the Respondents demanding security is not in accordance with law. They assert that although t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present and future demands for additional security instead of insisting for furnishing further additional security. Thus, the prayer made in the writ petitions is for a direction to the Respondents to issue/counter sign the road challans against the excess security deposits lying with the Respondents and not to insist upon fresh additional security deposits. In a nutshell, it is the prayer of the Petitioners that the excess security deposits already lying with the Respondents be treated as the security towards issuance of the road challans permitting to movement of their trucks carrying coal. 7. The Respondents have filed their counter affidavit in W.P. (C) No. 1622/05. Since the issue involved in all the writ petitions is the same, they relied upon the said affidavit as common to all the writ petitions. The stand in the counter affidavit, inter alia, is that the Petitioners are not entitled to invoke the writ jurisdiction of this Court, in view of the alternative remedy provides in the AGST Act and the AGST Rules for redressal of their grievance, if any. According to them the said Act and the Rules amply provide a scheme for refund of any excess amount which the tax authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en prayed for by the Petitioners if granted, will lead to tax evasion inasmuch it will be difficult for the various authorities of the Tax Department to keep track of the records and in the process the unscrupulous will be successful in avoiding payment of tax. 10. The Respondents have finally stated in their counter affidavit that their being no provision under the Acts and the Rules to make any adjustment in respect of the excess security deposits towards issuance of road challans taking the same to be the additional security and there being adequate provisions in the Acts and the Rules to get refund of the excess deposits, the Respondents cannot act contrary to such provisions. 11. I have heard the learned Counsel for the Petitioners as well as for the Respondents. Leading the arguments on behalf of the Petitioners, Mr. J. L. Sarkar and Mrs. B. Goyal, learned Counsel for the Petitioners, strenuously argued that the whole action of the Respondents in demanding the additional security for issuance of road challans in spite of the excess security which are already lying with the Respondents, is arbitrary, unreasonable and contrary to the provisions of the Act and the Rules. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 (State of M.P. v. G.S. Dall Flour Mills). 14. Mr. Sarkar, learned Counsel for the Petitioner in W.P. (C) No. 1898/05 placed reliance on the decision as reported in 98 STC 531 (Lalla Mookh Tea Company Pvt. Ltd. v. Commissioner of Taxes). 15. Countering the arguments made on behalf of the Petitioners, Mr. D. Saikia. learned Counsel appearing for the Respondents referring to the stand in the counter affidavit, defended the action of the Respondents. He submitted that there being inbuilt provisions in the Act and the Rules for refund of excess amount lying with the Respondents, the Petitioners should take recourse to such provisions instead of demanding an action on the Respondents for which there is no sanction under the Acts and the Rules. He submitted that additional security is demanded to avoid evasion of tax and in the event of granting the prayers made by the Petitioners for adjustment etc., same will lead to anomalies resulting in tax evasion at the cost of the State revenue. He submitted that after an application for refund of excess amount is made same is scrutinized as per the relevant provisions of the Act and the Rules and thereafter the order of refund is passed q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er by payment or deduction or adjustment of such excess from the amount of tax, interest, penalty or other sum due from him in respect of any other period. 19. Under Sub-section 2 of Section 30 where any tax is levied under this Act on the sale or purchase of any goods referred to in Section 14 of the CST Act and such goods are subsequently sold in the course of inter-State trade or commerce, the dealer paying tax on such sale under that Act shall be entitled to get the amount of tax paid under this Act refunded to him on application by him to the Assessing Officer in the prescribed manner within one year from the date of assessment for the year to which the sale relates and the Assessing Officer shall, if the application is in order, refund the amount in such manner as may be prescribed. 20. Section 31 of the AGST Act empowers the authority to withdraw the refund in the event of an order relating to such refund is the subject matter of an appeal or further proceedings. 21. Section 32 of the said Act provides for interest on refund, if for reasons of delay, a refund, being other than a refund under Sub-section (2) of Section 30 due to a dealer under Section 30 is not made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und will have to be understood in this context only. If the Petitioners are entitled to any refund, they may take the same as envisaged under-Section 30 of the AGST Act and Rule 36 of the AGST Rules. If the demand made by the Petitioners for adjustment of such additional security stated to be lying with the Respondents is to be accepted, same will have to be de hors the provisions of the Act and the Rules. 26. The procedure having been laid in the Acts and Rules, same will have to be followed. There cannot be any via media bypassing such procedure. Once it is held that the security/additional security obtained from the traders and for that matter the Petitioners for the purpose of adjustment against the payable tax is for all practical purpose is the amount against payable tax, the procedure laid down for refund of any excess of such amount will have to be followed. As noticed above, we are not concerned with the procedure of collecting the security and additional security from the Petitioners by the Respondents and the same is not the issue in the present proceeding. Only grievance raised in this batch of writ petitions is that the Respondents instead of making further demand f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondents, I am of the considered opinion that no fault is attribute to the Respondents. Annexure-VII letter dated 3.3.05 in W.P. (C) No. 1898/05 is also in the same context by which the Petitioners were advised to apply for refund as per the relevant provisions. 29. The case of R. N. Omprakash Anand (supra) on which the learned Counsel for the Petitioners placed reliance is altogether in a different context. In that case the Petitioner filed objection against the direction of the authority to make payment of security money under Section 7(1) of the Assam Finance (Sales Tax) Act, 1956. The Petitioner was allowed adjustment and while filing his return he prayed for adjustment of the security amount against the dues under the AGST Act. The impugned notice did not disclose any grounds or reasons why the security is demanded. It was found that the Petitioner in that case had filed the copies of the challans showing the deposits of security and in the challans it was clearly stated that the payment had been made on account of adjustable security under the Assam Finance (Sales Tax) Act/Central Sales Tax Act. In that context it was held that the amount deposited after the challans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Taxes. Even if any such circular was issued by the Commissioner of Taxes towards rejection of the prayers of the Petitioners for adjustment of the excess security amount against the further security deposits, same was in conformity with the provisions of the Acts and the Rules and cannot be said to be by way of supplementing the said provisions in any manner. 34. Mr. D. Saikia, learned Counsel for the Respondents placed reliance the case of Mafatlal Industries Ltd. and Ors. and National Hydroelectric Power Corporation Ltd. (supra) to bring home the preliminary objection raised in the counter affidavit relating to maintainability of the writ petition. In the first case laying down the proposition on the basis of the discussion made in the judgment on the issue relating to refund of excise/custom duty levied on misinteipretation/misapplication/erroneous interpretation of the statutory provision, the Apex Court held that the claim for refund has necessarily to be preferred under and in accordance with the provisions of the respective enactment before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is lying with the Respondents after making adjustment against payable tax and other dues, the Petitioners can very well invoke the inbuilt provisions under the Acts and the Rules to get refund of the same along with the interest if admissible to them. In absence of any provisions in the Acts and the Rules, they cannot make a demand for adjustment of such excess amount lying with the Respondents in respect of their future transactions and that too without there being any order of refund. 39. Each transaction is independent to one Anr. . In every transaction, the Petitioners are bound to follow the procedure and they cannot fall back on the earlier transactions so as to claim that the excess security lying with the Respondents in respect of those transactions be taken as the security in respect of the future transactions. Even if there is any excess security lying with the Respondents, the Petitioners will have to follow the procedure laid in the Acts and the Rules to get refund of the same or to make adjustment of the same against future dues as envisaged under Rule 36(6) of the Rules. 40. If the contention of the Petitioners that the refund envisaged under the Acts and the R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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