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TMI Blog2023 (8) TMI 1312X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 33(1) of the VAT Act. However, as already noted above, the present writ petition was admitted on 07.09.2021 with an interim order. Having admitted the writ petition, it would not be justified to non suit the petitioner on the ground of availability of alternative remedy at the stage of hearing - the law is well settled that notwithstanding availability of alternative remedy, a petition under Article 226 of the Constitution of India would well be entertainable, provided the aggrieved person makes out a case of violation of the principles of natural justice, when there is a challenge to vires of a statute, when there is violation of fundamental rights or an order is without jurisdiction or in excess of jurisdiction. There was no material before respondent No. 3 to come to the definite conclusion that petitioner had transferred the purchased gold bullion from Hyderabad to its manufacturing unit at Kolkata and thereafter had exported the manufactured gold jewellery from Kolkata on the basis of purchase orders - Since respondent No. 3 had taken the view that petitioner had not furnished details of the manufacturers with their addresses and the quantity of gold sent for man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of gold bullion in Hyderabad. 3.3. On 15.04.2017, Deputy Commissioner (CT), Secunderabad Division, issued show cause notice to the petitioner stating that certain irregularities were noticed in the assessment for the tax period 01.04.2014 to 29.02.2016 and therefore proposed revision under Section 32(2) of the VAT Act. The show cause notice mentioned that from a perusal of the statement of the petitioner dated 03.04.2017, it could be observed that the dealer (petitioner) sends raw gold purchased locally to its manufacturing unit situated in Kolkata for manufacturing gold jewellery to be exported to other countries. According to the Deputy Commissioner, it was nothing but stock transfer of bullion by the petitioner from Hyderabad to its manufacturing unit in Kolkata and therefore the ITC had to be restricted to the extent of taxable sales i.e., local sales as the finished products never reached Hyderabad but were exported directly from Kolkata airport. As to local sale of gold jewellery and eligibility of ITC on purchases relatable to such sales, it was mentioned that no evidence was available in the assessment record to the effect that the gold jewellery sold locally was obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings. 5. This court by order dated 07.09.2021 had admitted the writ petition by issuing rule nisi. In I.A. No. 2 of 2021, this court took the prima facie view that action of respondent No. 3 in initiating revision proceeding under Section 32(2) of the VAT Act was not justified as evidently the said respondent had misread the letter of the petitioner dated 03.04.2017 to say something which the petitioner never said. Accordingly, this court passed an interim order as was prayed for by the petitioner. 6. Respondent No. 3 has filed counter affidavit. It is stated that in order to verify correctness and completeness of the returns filed by the petitioner for the periods 2014- 2015 and 2015-2016, Deputy Commissioner (CT), Secunderabad Division, in terms of Rule 59 of the Telangana Value Added Tax Rules, 2005, had authorised the Commercial Tax Officer, Ashok Nagar Circle, to conduct audit of the business accounts of the petitioner. Pursuant to such authorisation, Commercial Tax Officer verified the books of accounts of the petitioner for the above periods and thereafter passed the assessment order on 30.04.2016 ordering refund of excess of ITC on gold purchased by the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not make any sense to carry the manufactured jewellery from Hyderabad to Kolkata and export the same from the Kolkata airport which could have been easily done from the Hyderabad airport. That being the position, respondent No. 3 has justified the order passed by him in revision and had sought for dismissal of the writ petition. Additionally, respondent No. 3 has urged that petitioner has got an adequate and efficacious alternative remedy of appeal under Section 33(1) of the VAT Act. Petitioner did not file an appeal as provided under the statute. But, after expiry of the limitation period for filing appeal, petitioner has filed the writ petition. Therefore, the writ petition is liable to be dismissed on this count itself. 7. Mr. Vedula Srinivas, learned Senior Counsel for the petitioner submits that the petitioner is a manufacturer of jewellery from out of the gold purchased by it from the local registered dealers at Hyderabad. Its manufacturing activity is also located at Hyderabad. The jewellery so manufactured are sent by air from Hyderabad to Kolkata and from there to foreign buyers. For the assessment period under consideration, respondent No. 4 had examined all the rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the VAT Act which provides for revision by Commissioner or other prescribed authorities. As per sub section (1), the Commissioner may suo motu call for and examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to him, under the provisions of the VAT Act, including sub section (2) and if such order or proceeding recorded is prejudicial to the interests of revenue, may make such enquiry, or cause such enquiry to be made and subject to the provisions of the VAT Act, may initiate proceedings to revise, modify or set aside such order or proceeding and may pass such order in reference thereto as he thinks fit. 10.1. As per sub section (2) of Section 32 of the VAT Act, powers of the nature referred to in sub section (1) may also be exercised by the Additional Commissioner, Joint Commissioner, Deputy Commissioner and Assistant Commissioner in the case of orders passed or proceedings recorded by the authorities, officers or persons subordinate to them. 10.2. As per Section 33(1) of the VAT Act, any dealer objecting to an order passed or proceeding recorded amongst others under Section 32 of the VAT Act, may appeal to the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding availability of alternative remedy, a petition under Article 226 of the Constitution of India would well be entertainable, provided the aggrieved person makes out a case of violation of the principles of natural justice, when there is a challenge to vires of a statute, when there is violation of fundamental rights or an order is without jurisdiction or in excess of jurisdiction. Reiterating what we have said earlier, we are not inclined to relegate the petitioner to the forum of appellate authority at this stage. 13. Before we analyse the impugned revisional order dated 07.12.2020, we may examine the statement of the petitioner dated 03.04.2017 as per which petitioner stated that we hereby state that we have self manufactured the gold jewellery exported from the purchase of gold bullion in Hyderabad . Though it is stated that the said statement was made in reply to the notice of the Commercial Tax Officer, Ashok Nagar Circle, dated 30.03.2017, the said notice has not been placed on record. Therefore, we are not sure in what circumstances and in what context the above statement was made. But we are certainly of the view that the said statement is quite vague inasmuch as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler are verified and noticed that there is no specific instructions to dispatch the goods i.e., from Hyderabad or Kolkata. The order placed only on the dealer at Hyderabad. When the order placed on Hyderabad dealer the question of shipping the goods from Kolkata does not arise. 2. The shipping bills filed by the dealers noticed that all the consignments were from Kolkata but not from Hyderabad. 3. The packing list filed reveals that the port of loading is at Kolkata-Hyderabad. 4. The dealer has filed a letter dt: 03-04-2017 wherein it is stated that they have self manufactured the gold jewellery exported out of the purchases of gold in Hyderabad. The above matter was also stated in their letter dt: 27-04-2017 as we had also made purchases of gold bullion from registered dealers within the state (Hyderabad) and had self manufactured the gold jewellery in Hyderabad with the said bullion purchased within the state and has exported the same gold jewellery to foreign buyers from Kolkata Airport in pursuance to their purchase orders placed on us . As stated above that they manufactured gold ornaments at Hyderabad, they have not furnished the details of manu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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