TaxTMI 
TaxTMI 
2008 (8) TMI 825
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....tax liability has been fastened on the petitioner coupled with imposition of penalty and the petitioner is not in position to deposit 25 per cent of the assessed tax liability and the penalty amount. Counsel relied upon A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani AIR 1961 SC 1506, M. G. Abrol, Additional Collector of Customs, Bombay v. Shantilal Chhotelal & Co. AIR 1966 SC 197 and Filterco v. Commissioner of Sales Tax, M.P. [1986] 61 STC 318 (SC); AIR 1986 SC 626. Although the petitioner's product is not having registered trade mark and the soap made by the petitioner is indigenous hand-made soap whose brand or trade mark is not registered under any law in force, counsel would contend, the petitioner's product (hand-made soap) has been taxed at 12.5 per cent and, thus, an error of law has been committed affecting the very authority of the assessing authority in passing the assessment orders. Based on this, counsel contends that the impugned orders suffer from lack of jurisdiction. In support of this contention, the counsel relied upon the decision of the Supreme Court in the case of Mafatlal Industries Ltd. v. Union of India [1998] 111 STC....
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....int Commissioner, which reads, thus: "72. Appeal to Deputy Commissioner and Joint commissioner.-(1) Subject to such Rules as may be made by State Government under this Act, any dealer objecting to an order of assessment or an order levying interest or penalty passed by the prescribed authority against him, or an order under section 25, or a person, objecting to an order of penalty passed against him or an order under section 47 may appeal to the Joint Commissioner, or, the Deputy Commissioner specially authorized in this behalf. (2) No appeal under sub-section (1) shall be admitted unless the dealer objecting to an order of assessment has paid twenty-five per cent. of the tax assessed or full amount of admitted tax whichever is higher. (3) Every appeal under this section shall be filed, in such form and the manner, as may be prescribed, within forty-five days of the receipt of the notice of demand but where the appellate authority is satisfied that the appellant had sufficient reason for not preferring the appeal within time, it may condone the delay. (4) The appellate authority while disposing of an appeal against an order, other than an order under section 47, may- (a....
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.... date of receipt of the appeal." From the order of the Tribunal, an appeal would lie to the High Court under section 79 on substantial question of law. Section 79 which provides thus: "79. Appeal before High Court.-(1) An appeal shall lie to the High Court from every order passed by the Tribunal, if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner or a dealer aggrieved by any order passed by the Tribunal- (i) under the Finance Act, 1981, ( Act 5 of 1981), as it stood before its repeal by section 94, on or after the date of commencement of this Act; or (ii) under this Act, may file an appeal to the High Court, and such appeal under this section shall be filed within ninety days from the date of the communication to the dealer or the Commissioner on any question of law arising out of such order. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate the question. (4) The appeal shall be heard only on the question so formulated and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided....
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....ity appointed under section 10 or the Tribunal may review any order passed by it, if such review is, in the opinion of the said authority or Tribunal, as the case may be, necessary on account of a mistake which is apparent from the record: Provided that no such review, if it has the effect of enhancing the tax, interest or penalty or of reducing a refund shall be made unless the said authority or the Tribunal, as the case may be, has given the dealer, or the person concerned a reasonable opportunity of being heard." Section 77 provides for determination of disputed questions for the purposes of the Act. It reads, thus: "77. Determination of disputed questions.-(1) If any question arises, otherwise than in proceedings before a court, or before the prescribed authority has commenced assessment of a dealer under section 27 or section 28 or section 29 or section 30 or section 31 or section 32 or section 33, whether, for the purposes of this Act- (a) any person, society, club or association or any firm or any branch or Department of any firm, is a dealer, or (b) any particular thing done to any goods amounts to or results in the manufacture of goods, within the meaning of that term,....
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....Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani AIR 1961 SC 1506, the Constitution Bench of the Supreme Court expounded the legal position with regard to petitions under article 226 vis-a-vis existence of alternative remedy, thus: "8. The only point, therefore, requiring to be considered is whether the High Court should have rejected the writ petition of the respondent in limine because he had not exhausted all the statutory remedies open to him for having his grievance redressed. The contention of the learned Solicitor-General was that the existence of an alternative remedy was a bar to the entertainment of a petition under article 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or nonest. In all other cases, he submitted, courts should not entertain petitions under article 226, or in any event not grant any relief to such petitioners. In the present case, he urged, the High Court in appeal had expressly dissented from the ....
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.... v. Income-tax Investigation Commission AIR 1954 SC 207; [1954] 25 ITR 167 (SC). And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under article 226, unless there are good grounds therefor.' There is no difference between the above and the formulation by Das, C.J., in State of Uttar Pradesh v. Mohammad Nooh [1958] SCR 595 at pp. 605-607; AIR 1958 SC 86 at page 93, where he observed: '...It must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at the conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other stat....
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....That apart the existence of an effective remedy does not oust the jurisdiction of the High Court, but it is only one of the circumstances that the court should take into consideration in exercising its discretionary jurisdiction under article 226 of the Constitution. In this case, the High Court thought fit to exercise its jurisdiction under article 226 of the Constitution and we do not see any exceptional circumstances to interfere with its discretion. In the result, Civil Appeal Nos. 376 and 377 of 1963 are dismissed with costs." In the backdrop of the provision that required deposit of entire penalty amount before maintaining the statutory appeal, it was held that the remedy of appeal was not an efficacious remedy. Section 72 of the Act, 2005, that provides for appeal, requires only 25 per cent of the tax liability to be deposited. Pre-deposit of 25 per cent for maintaining the appeal, in our opinion, does not render the remedy of appeal ineffective. In the case of Filterco [1986] 61 STC 318 (SC); AIR 1986 SC 626, the Madhya Pradesh High Court did not entertain the writ petition under articles 226 and 227, as the statutory remedy was available. Dealing into this aspect, the Su....
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....passed; the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under article 226 and sought to reopen the decision of the taxing authorities on question of fact. The jurisdiction of the High Court under article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the articles. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the court will not entertain a petition for a writ under article 226, where the petitioner has an alternative remedy, which, without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of q....