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TMI Blog2019 (11) TMI 1782X X X X Extracts X X X X X X X X Extracts X X X X ..... here is some merit in the stand of the petitioner that the same rationale would and should apply in his case as well. This position does not change merely because the challenge to the assessment is belated and the assessment and consequent demand have attained finality. The Classification of the goods and the taxability thereof should be no different in the case of the petitioner and/or other similarly placed assessees. A Division Bench of this Court in the case of RAYALSEEMA CONSTRUCTIONS AND ANOTHER VERSUS DEPUTY COMMERCIAL TAX OFFICER, MANNADY DIVISION, MADRAS 1 AND OTHERS [ 1959 (2) TMI 23 - MADRAS HIGH COURT ] considered a challenge to recovery proceedings in a case where the assessment had become final and had not been carried ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sification of 'Pocket Bricks Game' (in short 'game'). 2. According to the petitioner, the game is liable to be classified in terms of heading CTH 9503.20, whereas, according to the respondent, it is liable to be classified as 'hand held Brick Video Game', under CTH 9504.30 and CET 9504.90. In adopting this view the Assessing Authority follows the order of Commissioner (Appeals), Chennai in the case of Sujatha Enterprises where vide order-in-Appeal No.C3/510/0/2001 (Sea), the authorities had upheld the classification of the very same type of goods under the heading CTH 9504.30 and CET 9504.90, at the rate of 16%. 3. The sequence of relevant dates and events is as follows: (i) The Petitioner filed a Bill of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are classifiable under heading CTH 95.03, accepted. 5. This writ petition is now filed challenging order-in-original passed in 2001, on the ground that on merits, the very same issue has been held in favour of the assessee and the order of the CESTAT to such effect has been accepted by the Department. 6. Learned counsel for the petitioner urges that this being the law, it should be applicable across the Board and in rem and there cannot be a different interpretation in the case of the identical products in the hands of other assessees. 7. Mr.PramodKumar Chopda, learned Senior Standing Counsel would reiterate the enormous delay that had been occasioned at every stage in this proceeding pointing out that not only was the appeal to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40) the Supreme Court had held that works contract did not involve any element of sale of materials per se and thus the levy of sales tax upon such transactions was invalid. The Division Bench was of the view that such law would apply uniformly to all similarly and identically placed assesses. Thus, notwithstanding that the assessments in that case had become final and though there were neither appeals filed or in some cases, appeals that had failed on one ground or the other, the Division Bench after a detailed exposition of law, expressed the view that the impugned recovery action would fail. The Bench noted that the objections raised by the petitioner therein, very similar to those before me, were fundamental and went to the root of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n making an assessment on the basis of the relevant part of the charging section which was declared to be ultra vires by this Court. In K.S.Venkataraman Co. (P) Ltd. V. State of Madras, Civil Appeal 618/63 decided on18-10-65, this Court, by a majority, held that by reason of the fact that the relevant part of the charging section was held to be ultra-vires, Section 18A of the Act was not a bar for the maintainability of a suit claiming refund of the tax illegally collected. 6. Learned counsel for the appellant has however contended that the High Court was in error in issuing a writ of mandamus when the proper remedy of the respondent was to file a suit. It is no doubt true that when there is an alternative remedy, the High Court wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is there even in aforesaid circumstances, but the exercise is discretionary which will be governed solely by the dictates of the judicial conscience enriched by judicial experience and practical wisdom of the judge.' 12. The aforesaid decision /judgments reveal the position that where a demand emanates from an order of assessment which is without authority, as in the present case where the issue on merits has been held in favour of the assessee and such decision accepted by the Department, judicial review is permissible subject to discretion exercised by the Court. 13. Having applied my mind to the facts and circumstances of the present case, I am of the view that this is an appropriate case for exercise of jurisdiction in te ..... X X X X Extracts X X X X X X X X Extracts X X X X
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