IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.11.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.2915 of 2003 & W.P.No.2916 of 2003 and WPMP Nos.3658 and 3659 of 2003 respectively Tvl.Kamdar Exports Exporter & Importers rep. by its Partner Mukesh Kumar No.5, (New No.9) Narayana Mudali Lane Chennai-600 079 .. Petitioner in both the writ petitions vs. 1. The State of Tamil Nadu represente by the Secretary to Government, Department of Commercial Taxes and Religious Endowments, Fort St. George Chennai-600 009 2. The Commercial Tax Officer Sowcarpet III Assessment Circle Chennai-600 001 .. Respondents in both the writ petitions W.P.No.2915 of 2003 This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records in the file of the second respondent pertaining to the proceedings in C S T 93136/1999-2000, dated 20.12.2002 and quash the same as invalid and illegal. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.2916 of 2003: This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records in the file of the second respondent pertaining to the proceedings in C S T 93136/2000-2001, dated 20.12.2002 and quash the same as invalid and illegal. For petitioner : Mr.S.Mohan For Respondents : Mr.A.C.Mani Bharathi Government Advocate (Tax) C O M M O N O R D E R Heard the learned counsel appearing for the parties concerned. 2. Since the issues involved in the above writ petitions have arisen out of the same facts and circumstances, a common order is passed. 3. The facts, in a nutshell, are as follows: The petitioner firm is a registered dealer both under the Tamil Nadu General Sales Tax Act and the Central Sales Tax Act, with CST Registration NO.93136/2000-2001 and it is an assessee on the file of the second respondent. The grievance of the petitioner is that the respondents are not empowered to levy or collect sales tax in respect of the transfer of credit of money against the transfer of duty exemption pass book. The petitioners are merchant exporters and importers and as such the Government of India has granted certain incentives for export promotion, under which a credit on the F.O.B value is given in the pass book, which credit can be used for payment of customs duty in respect of the future consignments. 4. It is only a money credit. In the event of the petitioner not utilising the said credit, they are entitled to confer the benefits, namely, the credit of the money available in the duty exemption pass book in favour of other importers and exporters. The buyers of those duty exemption pass book utilise the credit available in the pass book in the place of the petitioners and they transfer the credit to the petitioners, which were available towards payment in respect of customs duty. Thus, it is clear that what has been transferred is nothing but the transfer of cash from one person to another person and it cannot be called as "goods". However, the second respondent had levied tax and penalty for two https://hcservices.ecourts.gov.in/hcservices/ assessment years, namely, 1999-2000 and 2000-2001, under the Central Sales Tax Act, 1956, as if it is transfer of goods. In spite of the reply submitted by the petitioner, the second respondent had passed the revised order of assessment. In such circumstances, the petitioner has preferred the present writ petitions before this Court, under Article 226 of the Constitution of India. 5. The learned counsel appearing for the respondents had submitted that the petitioner firm has come before this Court by filing the present writ petitions without availing the appeal remedy, as provided under Section 31 of the Tamil Nadu General Sales Tax Act, 1959. Hence, he had submitted that since there is an alternative remedy, the present writ petitions are to be dismissed as not maintainable. 6. Section 31 of the Tamil Nadu General Sales Tax Act, 1959 reads as follows: "31. Appeal to the Appellate Assistant Commissioner:- (1) Any person objecting to an order passed by the appropriate authority under Section 4-A, sub section (3) of Section 10, Section 12, Section 12-A, Section 14, Section 15, sub-sections (1) and (2) of Section 16, Section 18, sub-sections (2) of Section 22, Section 23 or Section 27 other than an order passed by an Assistant Commissioner (Assessment) may, within a period of thirty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Assistant Commissioner having jurisdiction: Provided that the Appellate Assistant Commissioner may, within a further period of thirty days admit an appeal presented after the expiration of the first mentioned period of thirty days if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the first mentioned period: Provided further that in the case of an order under sub-Section (3) of Section 10, Section 12, Section 12-A, Section 14, Section 15 or sub-Sections (1) and (2) of Section 16, no appeal shall be entertained under this sub- section unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due or of such instalments https://hcservices.ecourts.gov.in/hcservices/ thereof as might have become payable, as the case may be and (twenty-five) percent of the difference of the tax assessed by the assessing authority and the tax admitted by the appellant. (2) The appeal shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by such fee not exceeding one hundred rupees, as may be prescribed. (3) In disposing of an appeal, the Appellate Assistant Commissioner may, after giving the appellant a reasonable opportunity of being heard, and for the sufficient reasons to be recorded in writing- (a) in the case of an order of assessment- (i) confirm, reduce, enhance or annul the assessment or the penalty or both; (ii) set aside the assessment and direct the assessing authority to make a fresh assessment after such further inquiry as may be directed; or (iii) pass such other orders as he may think fit; or (b) in the case of any other order, confirm, cancel or vary such order: Provided that at the hearing of any appeal, the appropriate authority shall have the right to be heard either in person or by a representative. (4) Omitted by Act No.31 of 1972 w.e.f. 1st December 1972. (5) Notwithstanding that an appeal has been preferred under sub-section (1), the tax shall be paid in accordance with the order of assessment against which the appeal has been preferred: Provided that the Appellate Assistant Commissioner may, in his discretion, give such directions as he thinks fit in regard to the payment of the tax before the disposal of the appeal, if the appellant furnishes sufficient security to his satisfaction, in such form and in such manner as may be prescribed." 7. The learned counsel appearing for the petitioner firm has https://hcservices.ecourts.gov.in/hcservices/ not refuted the statements made by the learned counsel appearing for the respondents. 8. In such circumstances, the writ petitions are liable to be dismissed, since the petitioner firm has not availed the alternative remedy of appeal, provided under Section 31 of the Tamil Nadu General Sales Tax Act, 1959. Hence, the writ petitions stand dismissed. However, it is open to the petitioner firm to approach the appropriate authority by way of an appeal, under Section 31 of the Tamil Nadu General Sales Tax Act, 1959, within a period thirty days from the date of receipt of a copy of this order. Consequently, connected W.P.M.P.Nos.3658 and 3659 of 2003 are dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar lan To: 1. The Secretary to Government, Govt. of Tamil Nadu Department of Commercial Taxes and Religious Endowments, Fort St. George Chennai-600 009 2. The Commercial Tax Officer Sowcarpet III Assessment Circle Chennai-600 001 +1cc to Mr.S.Mohan, Advocate Sr 63157 +1cc to the Spl. Govt. Pleader (Taxes) Sr 63090 DM (CO) km/8.12. W.P.No.2915 of 2003 & W.P.No.2916 of 2003 https://hcservices.ecourts.gov.in/hcservices/