CW 48/2000 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH [1] S.B. Civil Writ Petition No.48/2000 M/s. Globe Transport Company Vs State & Ors. [2] S.B. Civil Writ Petition No.49/2000 M/s. Globe Transport Company Vs State & Ors. DATE OF ORDER : 07/07/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Kamal Parswal for Mr. Nitin Jain, for petitioner Mr. R.B. Mathur, for respondents *** Since both the matters involve common question, hence are being decided by present order. Petitioner's Truck No.HR-29-B-7871 & RJ-14G- 7421 were checked by respondent No.3 on 24th & 25th July, 1998 at Shahajahanpur Check Post. During checking, required documents like builties & bills were produced before respondent No.3. However, on examining bills & builties produced - it appears to be bogus and accordingly, a notice U/s 78(5) of Rajasthan Sales Tax Act was served upon the petitioner to appear on 31/07/98 but before the date on which he was called upon. Petitioner appeared before the authority on 25th July, 1998 and as he was not inclined to contest notice served and requested that their cases may be compounded and ready to deposit the amount which could be charged according to Rules taking CW 48/2000 [2] note of voluntary act of the petitioner not to contest the notice and to justify that the bills & bilties produced. Taking note of the face value of the documents produced, still the Assessing Authority segregated those bills which were tallyied with the goods and which was prima facie found to be bogus as per consent of the assessee on acceptance of guilt; assessed a sum of Rs.42,058/- in CWP-48/2000 & Rs.16,496/- in CWP- 49/2000 which was deposited by petitioner. However, he preferred appeal against the orders passed by the Assessing authority under the Composition Scheme U/s 84 of the Act and tried to convince the Appellate Authority that no tax could have been levied in regard to bills & bilties which were produced before the Assessing Authority. However, Appellate Authority taking note of the material prima facie observed while recording a finding of bills being bogus, no inquiry was made by the assessing authority, but finally recorded a finding that once the petitioner participated under the Composition Scheme and voluntarily accepted his guilt which never called upon the Assessing Authority to make inquiry. As such, appeal was not maintainable and finally dismissed the appeal preferred by petitioner. CW 48/2000 [3] Main thrust of the submission of counsel for petitioner is that once finding has been recorded by the Appellate Authority in its order even while rejecting appeal preferred by him, he is entitled for refund of the amount which was charged and paid by him under the orders of the Assessing Authority on the premise that the Appellate Authority recorded a finding that articles related to the bills and builties which were seized by the Assessing Authority they were exempted from payment of tax. Counsel for respondents, on the other hand, submits that there was no occasion available with the Assessing Authority to hold any investigation and to inquire into the matter. Since petitioner appeared before the date of notice on which he was called upon and voluntary accepted his guilt and requested the authority to impose tax which is permissible under law which he is ready to pay. In such circumstances, the Assessing Authority taking note of bills which were found to be bogus from the material available on record, imposed tax upon the petitioner which was voluntarily accepted by him and once it was paid, appeal ordinarily could not have been preferred. CW 48/2000 [4] Counsel further submits that it was only a prima facie observation made by the authority, but appeal once finally dismissed, the petitioner otherwise is not entitled to seek refund under writ jurisdiction of the Court U/Art.226 of the Constitution of India. I have heard counsel for parties and examined the material on record. Petitioner after his vehicles were checked on 24th/25th July, 1998 at Shahajahanpur Check Post and after required documents like builties & bills were seized by respondent No.3 and after notice was served to show that prima facie it appears to be bogus bills before the date of notice the petitioner voluntarily accepted his guilt and requested the Assessing Authority to compound the tax over those which alleged to be bogus and was ready to pay the composition amount which was finally computed and deposited the same. The object of filing departmental appeals is only for adjudication and re-appreciation of the material which was considered by the authority of whom appeal is being preferred. As per S.72(6) of Rajasthan Sales Tax Act, reproduced herein below, against an order of CW 48/2000 [5] composition made under this Act, appeal is not the remedy available: “Notwithstanding anything contained in Section 84, no appeal shall lie or subsist against an order of composition made under this Act.” In the instant case, petitioner's assessment was made under the Composition Scheme and composition amount was paid by him and filing of appeal is also barred U/s 72(6) of the Act. Apart from it, the appellate authority only made observations but once appeals were finally dismissed and rightly so, since statute bars of filing appeal against orders passed by the assessing authority under composition. The said observations otherwise cannot be read to cause prejudice to either of party. In opinion of this Court, mere observations made by the appellate authority will not confer right in favour of the petitioner to claim any refund of the amount paid in terms of assessment made by the Assessing Authority under composition scheme. Consequently, both the writ petitions are devoid of merit and accordingly dismissed. [AJAY RASTOGI], J. FRBOHRA48CW2000 7-7.doc