TaxTMI 
TaxTMI 
2013 (7) TMI 430
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....eo Camera (the DSC) etc. 3. So far as the DSCs are concerned, the Appellant imports the DSCs and sells them in the country. 4. The Commercial Tax Department, Chhattisgarh (the Department) started charging tax on the sale of DSCs under residual entry namely entry I of part-IV of schedule-II framed under section 15 of the Act. 5. The Appellant claims that the DSC is an IT product and covered under entry 63 of part-II of schedule-II rather than residual entry. It filed an application before the Commissioner, Commercial Tax, Raipur (the Commissioner) under Section 70 of the Act to determine rate of tax on the DSC. 6. After affording opportunity to the Appellant, the Commissioner by his order dated 17.10.2012 held that the Appellant was liable to pay duty under residual entry-1 part-IV of schedule-II. This was held in view of the order dated 23.05.2012 passed in case No.-160 of 2011 of M/s Bharti Wall Mart Private Limited. 7. Aggrieved by the aforesaid order, the Appellant filed WP(T)-102 of 2012. It was dismissed on 21.02.2013. Hence, the present writ appeal. SUBMISSION OF THE PARTIES 8. We have heard counsel for the parties. 9. The counsel for the Appellant sub....
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....ming quasi-judicial function 13. The counsel for the Appellant submits that: * In State of Kerala and Others Vs M/s Travancore Chemicals and Manufacturing Company and another, {1991 (112) STC 191 (SC)} (the Travancore-Chemicals case), the Supreme Court, while interpreting a similar provision has held such an order to be an administrative order; * In the present case also, the order is an administrative order. 14. Section 70 (see Appendix-1) of the Act is titled 'Determination of disputed questions'. It permits a dealer to raise any question about rate of tax on any goods before the Commissioner in a prescribed manner after payment of prescribed fees. In case such a question is raised, the Commissioner is required to determine the rate of tax on such goods within six months, in accordance with the procedure that may be prescribed. 15. Under the Act, the State has also framed Chhattisgarh Value Added Tax Rules, 2006 (the Rules). The procedure, manner, and fee have been prescribed therein. 16. Rule 79 (see Appendix-2) of the Rules is titled 'Procedure for determination under Section 70 of disputed questions'. Sub-rule (1)(b) of rule 79 {79(1)(b)} of the Rules require....
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....t is clear from the following observations: 'It is difficult to accept the position that under Section 35 which empowers the Commissioner to determine disputed questions and the Commissioner under sub-section (2) after giving the parties opportunity of being heard, decides a question, his order can be called to be an administrative order. In our opinion, the very language of the Section which enjoins a decision by the Commissioner envisages that the decision is quasi-judicial or judicial and cannot be characterised as administrative.' 24. In our opinion, the power exercised by the Commissioner is quasijudicial in nature and not administrative. Writ Appeal is not maintainable 25. Under section 70 of the Act, the power has been conferred upon the Commissioner to determine the rate of tax under a statute; he is also exercising judicial functions; there is also a lis between the parties as according to the Appellant the rate of tax is covered under entry 63 of part-II of schedule-II; whereas, according to the Department, it is covered by Entry I of Part-IV of Schedule-II of the Act. 26. Under sub-section (2) of section 70 {70(2)} of the Act, the decision of the Commissio....
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....High Court under article 227 of the Constitution. 31. In SKS Ispat Limited Vs Union of India and others (Writ Appeal-1006 of 2012, decided on 12.12.2012), a division bench of this Court has taken the view that it is not the heading of the writ petition, but substance of the order passed by the single judge is material. It is the order passed that determines whether the order was passed under Article 226 or 227 of the Constitution. 32. In the present case, the single judge after considering the submissions of the parties has dismissed the writ petition; substance of the order is under Article 227 and no power under Article 226 of the Constitution has been exercised. 33. In view of above and the proviso of sub-section (1) of section 2 of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006, the writ appeal is not maintainable. CONCLUSIONS 34. Our conclusions are as follows: (a) While exercising power under section 70 of the Chhattisgarh Value Added Tax Act, 2005, the Commissioner, exercises quasi-judicial power. His order is an order of a quasi-judicial authority and is not an administrative order; (b) The writ appeal is against the order of the singl....