TaxTMI 
TaxTMI 
1987 (12) TMI 321
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....t, 1947 (hereinafter referred to as "the Orissa Act") which has not been allowed to it by the defendants. Defendants filed three separate written statements in which, while not disputing the facts, they urged, amongst others, that the suit is barred under section 22 of the Orissa Sales Tax Act, 1947 and is barred by limitation. Trial court having decreed the suit rejecting the plea of the defendants, this appeal has been filed. 2.. Learned Advocate-General reiterated the legal contentions and urged that in view of the specific bar under section 22 of the Orissa Act, the suit is not maintainable. To appreciate the contentions of the learned Advocate-General, section 22 of the Orissa Act is to be kept in the forefront which reads as follow....
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....the provisions relating to returns, provisional assessments, advance payment of tax, appeals, reviews, revisions, references, refunds, penalties and rebate shall be applicable. In [1971] 27 STC 118 (SC); AIR 1970 SC 1672 (Orissa Cement Ltd. v. State of Orissa) it has also been held that rebate for payment of the tax levied within the time prescribed by the Orissa Act is a stimulus for prompt payment which has been offered to facilitate and expedite collection and thus being a part of the process of collection is available to payments under the Central Act as provided in section 9(3) thereof. Section 13(8) of the Orissa Act reads as follows: "13. Payment and recovery of tax and penalty.-(1) to (7).................. (8) A rebate of one per....
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....d under section 23(4) of the Orissa Act against the order in revision passed in exercise of suo motu power. Thus, in respect of rebate relating to tax paid under the Orissa Act, exhaustive machinery has been provided thereunder and section 22 would be directly attracted excluding the jurisdiction of the civil court to question an order not allowing rebate. Since the tax paid under the Central Act shall be treated as if the same is the tax paid under the Orissa Act as provided in section 9(3) of the Central Act, the refusal to allow rebate would also be subject to scrutiny by the same statutory machinery and is not cognizable by the civil court. In the decision reported in [1987] 67 STC 284 (Orissa) (Secretary to Government of Orissa, Financ....
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....e a liability not existing at common law is created by statute which at the same time gives a special and particular remedy for enforcing it, a remedy provided by the statute must be followed and the civil court's jurisdiction is ousted. The scheme of the particular Act is to be examined to see if remedies normally associated with actions in civil suits are prescribed by the statute. (iv) The legislature may entrust the special tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or to do something more. The legislature shall have to consider whether there shall be an appeal from the de....
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....ons, I am inclined to hold that section 13(8) creates a right to get back the amount of rebate from out of the tax paid. The legislature did not permit adjustment of the rebate by the dealer while filing return. It also did not intend that a dealer from whom arrear is due shall get back the amount towards rebate. Thus, though entitled to rebate, the same is to be adjusted. This can be possible if the provision for refund of excess tax in section 14 is made applicable. The application for refund form XII can also be applicable to such cases. Besides, legislature never intended that a dealer who is to get the benefit of rebate for prompt payment is to enter into litigation in a civil court to get that benefit. If the machinery provided under ....