TaxTMI 
TaxTMI 
2021 (10) TMI 808
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....00 packets of what is known as 'Hans Chap Khaini' chewing tobacco vide a tax invoice dated 30.12.2010 to a local buyer in Arumbakkam. In the invoice, it was mentioned that the goods sold is non-taxable goods and exemption was claimed. This consignment shall hereinafter be referred to as 'said goods' for the sake of convenience and clarity. In the course of a routine physical check, the rowing squad of the respondent detained said goods i.e., aforementioned consignment and a writ petition was filed in W.P.No.3212 of 2011 and the Revisional Authority was directed to dispose of the matter. It may not be necessary to dilate further on those aspects of the matter as the impugned order has since been made. 3. Notwithstanding very many averments and several grounds raised in the writ affidavit, learned counsel for writ petitioner made one focused submission and that one focused submission is, the impugned order erred in not following the order dated 05.06.2010 made in R.P.No.11 of 2010 by the Commissioner (CT), Salem Division, in a revision and an order dated 16.12.2010 made by this Court in W.P.No.28080 of 2010. There was a mention about a Tax Case Order dated 27.09.20....
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.... also been captured in the impugned order. Learned Revenue counsel goes on to state that the contentions of the respondent, more particularly, the written submissions and the submissions made on behalf of the dealer / writ petitioner in the personal hearing have been considered and all this is captured in the impugned order. Learned counsel draws the attention of this Court to a portion of the impugned order which reads as follows: ''The Revision Petition was Remanded back to the Assessing Authority, by the Joint Commissioner (ST) Chennai (North) Division in R.P.No.2/2019/C1 dated 11.2.2021 stating that. "It is seen that the dealer had contested in the Hon'ble High Court of Madaras the issue of notice issued by the Assistant Commissioner (ST) Vallalar Nagar Assessment circle to disallow, the claim of exemption on the turnover representing the sale of scented chewing tobacco under the brand name Hans Chap Khaini for the assessment year 2010-11 vide notice dated 31.8.2012. The Hon'ble High Court in W.P.No.27582/2012 and M.P.No.1/2012 dated 03.11.2020 had given order as follows: "It is incumbent upon the Petitioner to submit his explanation w....
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.... 'The Hon'ble Supreme Court in the case of Kesarwani Zarda Bhandar Vs.State of UP and others reported in 19 VST 545 (SC) has held that "the distinction between "manufactured' and "processed" may not in all situations depending upon the nature of the statute involved. It must pass the requisite test, viz., Whether it is a completely new item. Raw material of a manufactured product has to be distinguished from the manufactured product. When a new form comes into being and in market parlance it is considered to be a new product, the new form would be deemed to be manufactured goods as distinguished from processed goods." Hence raw tobacco when it is cut into small pieces by shearing machine, the resulting tobacco is called "nice tobacco". The "nice tobacco" is allowed to dry for few days and then flavouring essence are being sprinkled on it and this stage this tobacco is known as 'Chewing Tobacco'. Then thereafter, menthol, geru, lime and spices, etc, are being homogeneously mixed with the same, either from electric machine or by the manually operated machine. The items get inseparably mixed with the processed tobacco and the resulting tobac....
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....even referring to the various items like Zarda, Sukha, Surki and Khara Masala as the commodities produced by mixing tobacco leave cuttings with lime, spices and some flavoring agents and that the Department has taken steps to file appeal against the said order.' 12. Learned counsel for writ petitioner fairly submits that it is not clear as to whether the order of Joint Commissioner has been assailed. Therefore, these are all matters which (at best) have to be considered in an appeal. In other words they do not warrant interference in writ jurisdiction. 13. This takes us to the alternate remedy rule. In the case on hand, there is no disputation or disagreement that the impugned order is appealable. In other words, statutory appeal qua impugned order is available to the writ petitioner, which will be under Section 51 of TNVAT Act. 14. Regarding alternate remedy rule, the law is well settled that it is not an absolute rule and it is a discretionary rule. While holding it is not an absolute rule i.e., a discretionary rule and a self-imposed restraint qua writ jurisdiction, Hon'ble Supreme Court in a long line of authorities starting from Dunlop India case [Assistant Co....
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....not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this Rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 55.It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise j....
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....r, since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent.' 17. A perusal of the aforementioned paragraphs makes it clear that the case on hand does not fall under any of the aforementioned exceptions. The above is the obtaining position of law qua alternate remedy rule qua fiscal Statutes. Though obvious, for the purpose of completion of this narrative, discussion and dispositive reasoning, this Court deems it appropriate to mention that exceptions qua alternate remedy rule have been adumbrated in Whirlpool case law [Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others reported in (1998) 8 SCC 1] and Harbanslal principle [Harbanslal Sahnia and another Vs. Indian Oil Corpn. Ltd., and others reported in (2003) 2 SCC 107]. Relevant paragraphs in Whirlpool case is paragraph 15, which reads as follows: '15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certa....