THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.27440 and 27474 of 2010 Dated:09.11.2010 Between: M/s.Foods, Fats & Fertilizers Ltd. …Petitioner and Joint Commissioner (CT) (Legal), Hyderabad, And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos.27440 and 27474 of 2010 COMMON ORDER: (per Hon’ble Sri Justice V.V.S.Rao) This common order shall dispose of both the writ petitions as they are by the same assessee for two different assessment years. The petitioner, an incorporated entity, is a registered dealer under the Andhra Pradesh General Sales Tax Act, 1957 (APGST Act), and the Central Sales Tax Act, 1956 (CST Act). For the assessment years 2003-2004 and 2004-2005 they filed their returns before the third respondent. By proceedings dated 16.02.2006 the assessment for 2003-2004 under APGST Act was completed. By yet another proceedings dated 29.03.2007 the assessment for the other year was also completed. The third respondent allowed exemption under Section 5(1) of the CST Act on the export sales of Soya bean extraction as well as exemption on the turnover relating to sales made on behalf of the resident principal, namely, M/s.Asia Pacific Commodities Limited. The second respondent, however, revised the assessment of the third respondent. By two separate orders, dated 09.10.2009, the exemption under Section 5(1) of the CST Act was disallowed. Feeling aggrieved, the petitioner filed tax appeals before the Sales Tax Appellate Tribunal (STAT). Pending the appeals, the petitioner filed two applications before the first respondent seeking stay of collection of the balance of disputed tax. By impugned orders dated 20.09.2010 the first respondent denied the relief. These two orders are assailed in these writ petitions. In the impugned orders the Joint Commissioner observed as under. The case of the revisional authority however is that the provisions of the APGST ACT latches the liability to pay tax on the agents under section 2(1)(e)(iv) of the APGST Act irrespective of the turnovers of the principal/principals. In support of this finding the revisional authority cited the following judgments of Hon’ble Supreme Court of India. 1. Bagal court cement company Vs state of Mysore (37 STC (P 73) 2. State of Madras Vs the allocation and co ordination organization (29 STC P 114) 3. M/s. Cardamom Planters association Vs the Deputy Commissioner (CT) of Sales Tax (9 APSTJ 144) Besides the above it should be noted that the petitioner company could not file any evidence before the Joint Commissioner (CT) Legal that they indeed acted as agents or that the principal disclosed the turnovers in their returns and that the disputed turnovers are covered by sales tax holiday. In view of the aforesaid facts, I do not find any prima-facie ground to grant stay on the collection of the disputed tax. The Counsel for the petitioner, in both the appeals, submits that the petitioner has placed the entire material before the Deputy Commissioner in proof of the contention that the sales effected to M/s.Asia Pacific Commodities Limited by the petitioner as an agent are exempted sales under Section 5(1) of the CST Act, and, though the same material was placed before the first respondent, the same was not considered. Secondly, he submits that the appellate authority relied on the precedents, which have no relevance to the fact of the matter and, therefore, the orders of the appellate Deputy Commissioner are ex facie erroneous. On the balance of convenience he submits that the petitioner has already deposited 25% of the disputed tax while filing the appeals before the STAT and, if collection of the disputed tax is not stayed, the petitioner would suffer irreparable loss and injury, especially when it is a running unit. Both the learned Counsel for the petitioner, and the Special Counsel for Commercial Tax Department, have taken us through the documents filed along with the case. The petitioner made two separate applications in Form XXII before the first respondent seeking stay. These were sent by the petitioner’s Chartered Accountant, one Sri M.Rama Chandra Murthy, Hyderabad, enclosing the following appeal papers. 1. Form – XXII 2 copies 2. Facts of the case and grounds of appeal 2 copies 3. Copy of the acknowledgment Tribunal appeal 4. Two copies revision order passed by the Deputy Commissioner (CT), Eluru Division, Eluru, dt.21.06.2010. 5. Two copies of the assessment order dt.29.03.2007 passed by the Assistant Commissioner (CT) LTU & VMU-1, Eluru Division, Eluru. 6. Two copies of the consequential order dt.22.06.2010 passed by the Assistant Commissioner (CT) LTU & VMU-1, Eluru Division, Eluru. 7. Power of Attorney. A bare perusal of the above would belie the contention that all the necessary material was placed before the first respondent. Alternatively, it is submitted that the petitioner has placed all the material before this Court and, therefore, the balance of convenience may be considered with reference to the documents now placed. We are afraid, we cannot accept the plea. Judicial review is of the decision making process by the decision maker with reference to the material placed before him. If some other material, which was not placed before the decision maker or which came into existence post litem, point out any mistakes those cannot be branded as grave error apparent on the face of the record warranting exercise of extraordinary jurisdiction. That judicial review is not an appeal over the order of the decision maker is too well-known to be restated. We are not sitting in appeal and, therefore, we cannot be swayed by the submissions made across the bar placing reliance on the material which was certainly not before the first respondent. In that view of the matter we do not find any error apparent on the face of the impugned order. These two writ petitions are, therefore, dismissed in limine. We observe that we have not gone into the merits of the case and all the issues raised therein shall be dealt with by the learned Sales Tax Appellate Tribunal. _______________ (V.V.S.RAO, J) _____________________________ (RAMESH RANGANATHAN, J) 09.11.2010 vs