D.S.M. Polymers (P) Limited vs The Registrar, Tamil Nadu Taxation Special Tribunal and Others

N.V. Balasubramanian, J.—The petitioner has filed this writ petition challenging the order of the Tamil Nadu Taxation Special Tribunal made

in O.P.No. 300 of 2003, dated 25.3.2003. The Special Tribunal by its order has held that against the order, which had been challenged before the

Special Tribunal, which was passed by the Deputy Commissioner (CT), Chennai (North) Division, dated 05.3.2003, a revision would lie before

the Joint Commissioner (CT) (RP), Chennai-5 u/s 35 of the Tamil Nadu General Sales Tax Act, 1959, within thirty days from the date of receipt

of the order. The Special Tribunal, therefore, has held that since an efficacious alternative remedy was available to the petitioner, it was appropriate

for the petitioner to approach the said authority and challenge the order of the Deputy Commissioner by way of filing a revision. It is that order of

the Special Tribunal which is being challenged in this writ petition.

We heard Mr.K. Venkatasubramaniam, learned counsel appearing for the petitioner. The learned counsel appearing for the petitioner submitted

that the Deputy Commissioner has committed a grievous error in holding that the transport of goods was not backed by a Bill. He referred to the

grounds for detention of the goods and submitted that the reasons given for the detention of goods, which are extracted at page 21 of the typed

set, clearly show that the transport of goods was accompanied by Bill and consignment note. The learned counsel, therefore, submitted that the

Deputy Commissioner overlooked the grounds of detention of the goods and he also submitted that the transport of goods was by way of

consignment sale. Learned counsel also referred to a part of the order of the Deputy Commissioner, wherein the Deputy Commissioner has stated

that the order of dismissal would not in any way affect the rights of the petitioner to make its claim u/s 6A of the Central Sales Tax Act, 1956,

before the appropriate Assessing Authority having jurisdiction over Chennai Port from where the movement of goods commenced and seek refund

of advance tax.

The learned counsel appearing for the petitioner also submitted that the order of the Deputy Commissioner suffers from violation of the

principles of natural justice, as the date of hearing is shown as 20.2.2003, but in the order, the Deputy Commissioner has stated that time was

granted upto 03.3.2003 to file the declaration forms and on that day, the declaration forms were not filed and it was further adjourned to

05.3.2003 and on 05.3.2003 a Xerox copy of the declaration form was produced for one of the transactions, and, therefore, there is a violation of

the principles of natural justice, and this fact was omitted to be noticed by the Special Tribunal, when it directed the petitioner to avail the

alternative remedy under the provisions of the Act.

We have heard Mr. T. Ayyasamy, the learned Special Government Pleader (Taxes) also.

The Special Tribunal, in our view, has rightly held that when there is an efficacious alternative remedy available under the provisions of the Act,

the petitioner should approach the appropriate authority and avail the said alternative remedy, and no exception can be taken to the view

entertained by the Special Tribunal. It is not disputed that the petitioner has an alternative remedy u/s 35 of the Tamil Nadu General Sales Tax Act

by filing a revision before the Joint Commissioner (CT)(RP), Chennai-5, against the order passed by the Deputy Commissioner (CT), Chennai

(North) Division, dated 05.3.2003. Since there is an effective alternative remedy available under the principles of the Act, we hold that the Special

Tribunal was justified in holding that the petitioner should avail the said alternative remedy.

It is well settled that the exercise of writ jurisdiction is purely a discretionary one. The Supreme Court in Whirlpool Corporation Vs. Registrar of

Trade Marks, Mumbai and Others, held as under:-

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 certain restrictions one of which is that if an effective and efficacious remedy is available, the

High Court would not normally exercise its jurisdiction.

A Division Bench of this Court, in which one of us was a party, in Indian Additives Ltd. Vs. Indian Additives Employees Union and Another, held

as under:-

No doubt, it is well-settled that alternative remedy is not an absolute bar a writ petition, but it is equally well-settled that ordinarily if there is an

alternative remedy, the discretion under Article 226 should not be exercised and the party should be relegated to avail the alternative remedy.

Hence, even if there is violation of any of the Fundamental Rights or of natural justice or the proceedings are without jurisdiction, the High Court

under Article 226, on the facts of the particular case, can still dismiss the writ petition on the ground of availability of alternative remedy and

ordinarily it should do so if there is an alternative remedy.

Here, it is not a case of enforcement of fundamental rights, nor is it a case which can be said that the order was passed by the authority without

jurisdiction. As far as the violation of the principles of natural justice is concerned, there are no materials at all before the Court to show that the

order has been passed in violation of the principles of natural justice and there is nothing available on record to show that the case was adjourned

from 3.3.2003 to 5.3.2003 requiring the petitioner to submit certain documents and on that date, the order was passed without giving an

opportunity to the petitioner. However, these are all matters of evidence which have to be established before the revisional authority. Hence, we

hold that on the facts of the case the Special Tribunal was correct in not entertaining the petition filed by the petitioner. Hence, we do not find any

reason at all to interfere in this writ petition. Learned counsel for the petitioner also referred to certain decisions and in the view we are taking, we

are not referring to those decisions. The writ petition is therefore liable to be dismissed and accordingly, it is dismissed.

Learned counsel appearing for the petitioner also submits that this Court may issue a further direction till the disposal of the revision petition that

the third respondent shall not invoke the bank guarantee. We are not inclined to accede to the request made by the petitioner, as we are not

inclined to give any direction after the disposal of the writ petition. The learned counsel for the petitioner further submits that as the time limit has

already expired to prefer the revision, this Court may grant time to prefer the revision petition. The learned Government Pleader has not raised any

serious objection to the same. We find that this Court has already admitted the writ petition against the order of the Deputy Commissioner and

granted interim stay and the matter is pending on the file of this Court. Considering the facts of the case and in the interest of justice, we grant to the

petitioner two weeks'' time from the date of receipt of a copy of this order to prefer the revision petition and it is also open to the petitioner to file a

petition for stay and it is needless to state that if any such petition is filed, the Joint Commissioner (CT)(RP), Chennai-5 would consider and

dispose of the same as expeditiously as possible.

The writ petition stands dismissed. No costs. Connected miscellaneous petition is also dismissed.