IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTEENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 24911 of 2008 Between: MSTC Limited (A Government of India Enterprise) 6th Floor, LIC Building, "Jeevan Prakash" Jeevitha Bema Road, Visakhapatnam-4 rep by its Branch Manager Samir Kumar chowdary ..... PETITIONER AND 1 Joint Commissioner (CT) Legal, O/o Commissioner of Commercial Taxes, Andhra Pradesh, Hyderabad. 2 Commercial Tax Officer, Dabagadens, Visakhapatnam. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a Writ or order or direction more particularly a Writ in the nature of Writ of Mandamus setting a side the order of the 1st respondent passed in CCT's Ref. No. LV(3)/646/2008 dated 16-09-2008 and interdict the respondent authorities from collecting the balance disputed tax of Rs. 1,10,649/- until disposal of the appeal for the year 2004-05 pending before Appeate Deputy Commissioner (CT), Visakhapatnam, and pass such other order or orders. Counsel for the Petitioner: MR.A.SARVESWAR RAO Counsel for the Respondents: GP FOR COMMERCIAL TAX The Division Bench of this Court made the following : Order follows 2nd page THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 24911 of 2008 ORAL ORDER : (Per the Hon’ble Mrs. Justice T. Meena Kumari) Seeking a writ of mandamus to set aside the order passed by the ﬁrst respondent in proceedings CCT’s Ref.No.LV (3)/646/2008, dated 16-9-2008 and interdict the respondent authorities from collecting the balance disputed tax of Rs.1,10,649=00 for the assessment year 2004-05 (APGST) pending disposal of the appeal before the Appellate Deputy Commissioner (CT), Visakhapatnam, and to pass such other suitable orders as this court may deems ﬁt and proper in the circumstances of the case. 2. Aggrieved by the order passed by the ﬁrst respondent in so far as rejection of the stay application of the petitioner in CCT’s Ref.No.LV (3)/646/2008, dated 16-9-2008, the petitioner is constrained to approach this Court for a writ of mandamus under Article 226 of the Constitution of India. 3. The petitioner is a Government of India Enterprise, having its registered oﬃce at Kolkata and a branch oﬃce at 6th ﬂoor, LIC building, Jeevita Bhima Road, Viskahapatnam. The petitioner is the selling agent of the public sector undertakings of the Central and State Governments for the purpose of disposal of obsolete-scrap items. The petitioner acts as a broker- agent for the purpose of issuing advertisements and tender notiﬁcations and the ﬁnalization of the tenders. Once a tender is ﬁnalised, the petitioner refers the successful tenderer to the concerned public sector undertakings and the contract is ﬁnalized at the place of the concerned undertaking, i.e., registered Principal and in consideration, the petitioner receives commission whereas the sale value is retained by Registered Principal. 4. For the year 2004-05 the petitioner filed returns under APGST Act against which the second respondent passed assessment order dated 23-1-2008 determining the net turn over at Rs.9,19,38,370=00 as against Rs.9,15,39,706=00. Aggrieved thereby, the petitioner ﬁled appeal along with the stay application before the Appellate Deputy Commissioner. The Appellate Dy.Commissioner rejected the stay application through orders dated 02-6-2008 against which the petitioner ﬁled revision before the Joint Commissioner (CT) Legal, which was also dismissed through proceedings CCT’s Ref.No.LV (3)/646/2008, dated 16-9-2008 against the petitioner filed the present writ petition. 5. The main issue involved in the above said appeal is whether the sale of tender forms are exigible to tax and whether discarded and scrapped goods are liable to be taxed at the rate applicable to Iron Scrap/General Scrap or liable to be taxed at higher rate. With regard to levy of higher rate of tax on some items of sale, the petitioner submits that in view of the nature and quality of said goods, they were disposed oﬀ as iron scrap/general scraps. Even other wise, the said sales were eﬀected not by the petitioner but by the concerned Registered Principal which are registered dealers of the Commercial Tax Department, hence, the petitioner is not liable to pay the tax. Levy of higher rate of tax on unserviceable crane is not justiﬁed as the same is nothing but iron and steel scrap falling under item 2-A of the III-schedule to APGST Act. Therefore, the classiﬁcation of the same as unclassiﬁed goods is unjustified. 6. It is submitted by the learned counsel for the petitioner that though several contentions were raised before the respondent, the respondent has refused to grant stay vide the order impugned herein. It is submitted that pursuant to the rejection of stay by the third respondent, the ﬁrst and second respondent are contemplating to take coercive steps for recovery of the disputed tax. 7. Heard the learned counsel for the petitioner and the learned Special Standing Counsel for Commercial Taxes. 8. In the facts and circumstances of the case, without going into merits, we are of the opinion that the writ petition can be disposed of at the stage of admission directing the petitioner to deposit ﬁfty per cent of the disputed tax amount, as per the impugned order, within a period of eight weeks from today and in the meantime the respondents are directed not to take coercive step for recovery of the tax, pending ﬁnalisation of the appeal by the Appellate Authority. It is made clear that the amount paid, if any, shall be given credit to the above stipulated sum. 9. With these directions, the writ petition is disposed of at the stage of admission. No order as to costs. JUSTICE T.MEENA KUMARI JUSTICE RAMESH RANGANATHAN 13-11-2008. I s L NB: Furnish CC today. B/o. I s L