IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 18.10.2011 i) GSTR No. 17 of 2010 State of Punjab …..Petitioner vs. M/s K. Ajesh & Company and ors …..Respondents ii) GSTR No. 18 of 2010 State of Punjab …..Petitioner vs. M/s Shradha Exports Mumbai …..Respondent ii) GSTR No. 19 of 2010 State of Punjab …..Petitioner vs. M/s Shrey Diam, Mumbai …..Respondent iii) GSTR No. 20 of 2010 State of Punjab …..Petitioner vs. M/s Balaji Corporation Mumbai …..Respondent iv) GSTR No. 21 of 2010 State of Punjab …..Petitioner vs. M/s K. Ajesh & Company and ors …..Respondents v) GSTR No. 22 of 2010 State of Punjab …..Petitioner GSTR Nos. 17 to 24 of 2010 vs. M/s Ess Kay Transport Company, Haryana ….. Respondent vi) GSTR No. 23 of 2010 State of Punjab …..Petitioner vs. M/s Gokul Iron Hardware Traders …..Respondent vii) GSTR No. 24 of 2010 M/s Superior Industries Ltd. …..Petitioner vs. State of Haryana …..Respondent CORAM: - HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE G.S. SANDHAWALIA Present: - Mr. Piyush Kant Jain, Addl. A. G. Punjab for the petitioner Mr. K.L.Goel, Sr. Advocate with Mr. Zorawar Singh, Advocate for respondent(s) HEMANT GUPTA, J This order shall dispose of GSTR Nos. 17 to 24 of 2010 inviting this Court to decide of the following questions of law referred by Sales Tax Tribunal, Punjab vide the order dated 3.5.2005: - i) Whether the Deputy Excise and Taxation Commissioner exercising the powers of appeal under Section 20(1) (a) is an authority subordinate to Commissioner for the purposes of section 21(1) of the Act. ii) Whether the Commissioner has jurisdiction to revise the order passed by the Deputy Excise and Taxation Commissioner while acting as an Appellate Authority? 2 GSTR Nos. 17 to 24 of 2010 The said questions of law are said to have arisen on account of the interception of Car bearing No. RJ 14-T 3527 carrying taxable goods i.e. diamonds in four pouches. The Assistant Excise and Taxation Commissioner (Mobile Wing) Patiala imposed the penalty of Rs. 76,89,812/- vide the order dated 19.8.2002. The said order was challenged by the dealers- respondents before the Joint Director (Enforcement), Patiala. Initially, the appeals were not entertained for want of mandatory pre-deposit of 25% of the amount of penalty but the Tribunal permitted the dealers to deposit the amount by 6.8.2003 vide its order dated 28.7.2003. The dealers deposited the aforesaid amount. The Deputy Excise and Taxation Commissioner-cum- Joint Director (Enforcement), Patiala allowed the appeals vide the order dated 25.8.2003 and quashed the penalty imposed vide the order dated 19.8.2002. On a reference made by Assistant Excise Taxation, Commissioner, the Additional Excise and Taxation Commissioner in exercise of the revisional jurisdiction of Section 21 of the Punjab General Sales Tax Act, 1948 (for short the ‘Act’) has set aside the order passed by the Deputy Excise and Taxation Commissioner-cum-Joint Director (Enforcement), Patiala and restored the penalty of Rs. 76,89,812/- vide the order dated 13.10.2003. Against the said order passed by Additional Excise and Taxation Commissioner, dealers filed five revision petitions 3 GSTR Nos. 17 to 24 of 2010 before the Sales Tax Tribunal. The said petitions along with two other cases came up for hearing before the Sales Tax Tribunal. The Sales Tax Tribunal found that the action of the revisional authority i.e. Additional Excise and Taxation Commissioner was beyond jurisdiction and consequently set aside the order passed in revision. Subsequently, at the instance of the State, on a petition under Section 22(2) of the Act, the questions as mentioned above are referred for the opinion of this Court. Mr. Goyal, Sr. Advocate appearing for dealers- respondents, at the outset, pointed out that the State has filed appeals against the order passed by Deputy Excise and Taxation Commissioner dated 25.8.2003. Such appeals are pending before the Punjab VAT Tribunal successor of Sales Tax Tribunal constituted under the Punjab Value Added Tax Act, 2005. In view of the pendency of the said appeals at the instance of the State against the order passed by Deputy Excise and Taxation Commissioner on 25.8.2003, the questions of law as referred by the Sales Tax Tribunal for the opinion of this Court are academic in nature and do not require any decision on merits. After hearing learned counsel for the parties, we find that the present references are academic in nature as admittedly the State is in appeal against the order passed by Deputy Excise and Taxation Commissioner on 25.8.2003. Since the appeal is pending at the instance of the State, the question whether the Additional Excise and Taxation Commissioner could exercise suo moto revisional power under Section 21 of the Act 4 GSTR Nos. 17 to 24 of 2010 to interfere with the order passed by Deputy Excise and Taxation Commissioner is academic in nature as all question at the instance of the State can be decided on merits by the Tribunal. The scope of the revisional jurisdiction need not be gone into the present set of cases when the order passed by the Deputy Excise and Taxation Commissioner has been challenged in appeal as well. In view of the said fact, the references are returned unanswered. Learned Punjab VAT Tribunal is directed to decide the appeals on merits without taking into consideration the earlier decision of the Sales Tax Tribunal that the order passed by the Additional Excise and Taxation Commissioner is without jurisdiction. The Tribunal shall decide the appeals on merits in accordance with law. (HEMANT GUPTA) JUDGE 18.10.2011 (G.S. SANDHAWALIA) preeti JUDGE 5