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TMI Blog2022 (9) TMI 1542X X X X Extracts X X X X X X X X Extracts X X X X ..... said constitutional power, the High Court cannot ignore the law, nor can it override it. The power under article 226 of the Constitution of India is conceived to serve the ends of law and not to transgress them. In the instant case, since the clause (b) of section 5E of the A. P. Act 6 of 1957 was read down by the honourable apex court as indicated above holding that the situs of sale would be the place where the property in goods passes and not the place of location of the goods where they are put to use, the respondent are under obligation to review the assessment of tax for the years 1995-96 to 1997-98 of the petitioner and consequently, the petitioner is entitled for refund of tax paid by it for the said assessment years. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxes paid by the petitioner and pass such other order or orders. . . 2. We have heard the submissions of Sri S. Dwarakanath, the learned senior counsel appearing for the petitioner, Sri K. Raji Reddy, the learned Senior Special Standing Counsel for Commercial Taxes representing the respondents, and perused the record. 3. The learned senior counsel for the petitioner would submit that the petitioner is a manufacturer of paper and paper boards, having its factory and registered office at Erode in Tamil Nadu State. Though the petitioner entered into certain transactions for sale and lease back of assets-machinery at Tamil Nadu, the customers and assets were situated in erstwhile State of Andhra Pradesh. Hence, the petitioner bona fide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement in Chennai is immaterial. Later, the Deputy Commissioner confirmed the revision and levied tax. As the tax was levied on the same transactions on another ground, it delayed the petitioners' effort to claim relief for the assessment years 1995-96 to 1997-98, as the assessing authority would adopt the same stand as of his superior. However, the respondents, neither revised the assessment orders for the years 1995-96 to 1997-98, nor acted upon the representation, dated October 20, 2000, till date and ultimately prayed to allow the writ petition as prayed for. In support of his contentions, the learned Senior Counsel had relied on 20th Century Finance Corporation Limited's case [2000] 6 SCC 12 and Mafatlal Industries Limited v. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Seventh Schedule. We, therefore direct that clause (b) of section 5E of the Act shall be read down to this effect that it would not be applicable to the transactor of transfer of right to use any goods if such deemed sale is (i) an outside sale, (ii) sale in course of the import of the goods into or export of the goods out of the territory of India and (iii) an inter-State sale. 6. A perusal of the aforementioned paragraph makes it clear that clause (b) of section 5E of the Act 6 of 1957 was declared as unconstitutional by the honourable apex court. 7. Further, In Mafatlal Industries Limited's case [1997] 5 SCC 536, the honourable apex court, in paragraph No. l08(ii), held as follows : (ii) Where, however, a refund is cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that account. In other words, a claim of this nature is not contemplated by the said enactments and is outside their purview. 8. As held by the honourable apex court in Mafatlal Industries Limited's case [1997] 5 SCC 536, the power under article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law, nor can it override it. The power under article 226 of the Constitution of India is conceived to serve the ends of law and not to transgress them. In the instant case, since the clause (b) of section 5E of the A. P. Act 6 of 1957 was read down by the honourable apex court as indicated above holding that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's cases that they are entitled to the benefit of the G. O. Ms. No. 1055, (Revenue) dated October 17, 1994 merely because some other assessee has suc ceeded in his own writ petition. Consequently, the petitioner cannot claim refund on basis of success of some other person, i. e., Srinivas Poultry's case. 10. In the above decision, the party to the said writ petition sought refund of tax on the basis of a decision rendered in a case of another person. Under those circumstances, it was held that it was not open for a person to say that the decision of the court or Tribunal in another person's case has enabled him to discover mistake under which he has paid tax. But in the instant case, the petitioner is not seeking refund of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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