TaxTMI 
TaxTMI 
1988 (4) TMI 72
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....of returning what was wrongly recovered to whom it belongs. Nor is it palatable to our jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of 'alternative remedy', since the root principle of law married to justice, is ubijus ibi remedium. The law ubi jus ibi remedium, becomes from this point of view something more important than a mere tautological proposition. In its bearing upon constitutional law, it means that the Englishmen whose labours gradually formed the complicated set of laws and institutions which we call the Constitution, fixed their minds for more intently on providing remedies for the enforcement of particular rights or for averting definite wrongs, than upon any declaration of the Rights of Man or Englishmen ........ The Constitution of the United States and the Constitution of the separate States are embodied in written or printed documents, and contain declaration of rights. But the statesmen of America have shown an unrivalled skill in providing means for giving legal security to the rights declared by American Constitutions. The rule of law is as marked a feature of the United States as of England." 2. Another point, in our....
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....sed duty on the commodity and that is the reason why the petitioner herein had been approaching the Executive authorities, including the Ministry, concerning the transaction of iron strips of this nature. 'Strip' is described in the Concise Oxford Dictionary as follows :- "a long narrow piece (a strip of card, paper, cloth, garden, territory,) narrow flat bar of iron or steel; (cartoon, sequence of small drawings, telling comic or serial story in newspaper etc., (colloq) Clothes worn by members of football etc. team; ME. f. or COGL. w. MLG. stripe strap, thong, prob. rel. to foil)". 'Sheet' is described in the Concise Oxford Dictionary as follows :- "Rectangular piece of linen cotton etc., used generally in pairs as inner bed cloths, broad more or less flat piece of thin material (a sheet of iron, glass, paper, etc.,).. sheet copper, iron, metal, etc., (spread by rolling, hamering etc., into thin sheets). .. .. Rope or chain at lower corner of sail for regulating its position etc., space at bow or stern of open Boat............". 5. According to Mr. K.C. Rajappa, learned counsel for the petitioner, when there is no specific description of a 'strip' or 'sheet' available ....
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....ether there are adequate grounds for ordering refund as prayed for by the petitioner? 8. Turning back to the observation regarding the law of limitation, the legal remedy that can be given to an aggrieved party is that where there is Ubi Jus ibi remedium. In other words, the law Ubi jus ibi remedium becomes explicit in a glittering way, which may help us while approaching this problem that is confronting us. We may first examine whether there is any provision that is available so as to give a remedy to the dispute. By a statute the appeal time is fixed and that is three months from the date of the order. No appeal had been preferred against the order of the initial assessment, declaring that the commodity is only sheet and not strip. We have already incorporated the meaning given in the Concise Oxford Dictionary for the words 'Strip' and 'sheet'. From whatever angle the commodity is approached with respect to the length, breadth and thickness of the commodity and also whether it is pig iron or any other steel, or any other variety of iron with which the sheet or strip is made of, it need not concern us. We are concerned here, whether the remedy has been asked for within the time....
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....ly, Legislature, Executive and Judiciary. Therefore, it is no doubt true that the provisions of the organic law of the land can be approached by a person only after exhausting all the remedies available under the Statute. In the instant case, it is the imposition of tax on gunny bags that were used as packing materials for packing cement that is attacked on the ground that such a classification cannot be the subject matter of tax under the TNGST Act." Learned counsel for the petitioner submits that the decision reported in 51 STC 171 will squarely apply to this case. In that case the gunny bags that were used as packing material, have taken into account for taxable turn over, and therein the Supreme Court held that the gunny bags, used as packing material, were not taxable. The ratio laid down in the above decision has to be applied to this case also. As regards the question of maintainability, as already pointed out when once the writ petitions are admitted it should be presumed that there is a prima facie case on the averments made in the affidavits filed in support of these writ petitions. These writ petitions have been admitted on 7-9-1981 and it is too late to hold that ....