IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.17608 of 2008 Date of decision: 19.11.2008 M/s Punjab Agri Products. -----Petitioner Vs. The State of Punjab and another. -----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE L.N. MITTAL Present:- Mr. K.L. Goyal, Advocate for the petitioner. Mr. Piyush Kant Jain, Addl.A.G., Punjab. ----- ORDER: 1. This petition, inter-alia, seeks quashing of order dated 2.9.2008 (Annexure P-20), which is an order of assessment of VAT under the provisions of Punjab Value Added Tax, Act, 2005 (for short, “the Act”). 2. Case set out in the petition is that the petitioner purchases Mentha oil as a commission agent for the principals located outside the State of Punjab and the goods are accordingly, transported outside the State of Punjab. The said transactions are, thus, inter-State purchases, in which no tax is attracted in the State of Punjab. The Assessing Authority by wrongly interpreting Section 20 of the Act, raised a demand of tax to the extent of Rs.6.65 crores for two C.W.P. No.17608 of 2008 assessment years. The Assessing Authority has invoked Section 20(1) (c)(d) of the Act, which is not attracted to the transaction in question. The said Section itself makes it clear that the same is attracted if despatches are to a place outside the State ‘otherwise than as a result of sale in the course of inter-State sale, trade or commerce or export’. 3. Learned counsel for the petitioner submits that the parameters laid down by the Hon’ble Supreme Court in Commissioner of Sales Tax v. Bakhtawar Lal Kailash Cand Arhti AIR 1992 SC 1952=(1992) 087 STC 196 have not been applied, even though the said judgment was cited before the Assessing Officer/Designated Officer. He submits that there is no reference to the said judgment in the impugned order. 4. We have heard learned counsel for the parties. 5. Learned counsel for the State submits that there is an alternative remedy of appeal available and question is not of validity of legislation, but only of application of parameters laid down in the Statute or judgment of the Hon’ble Supreme Court or otherwise. 6. Learned counsel for the petitioner submits that though remedy of appeal is provided, the appellate authority has no power to exempt the requirement of pre-deposit beyond 75% and even 25% of the demand raised will be more than Rs.1.5 crores, which the petitioner is not in financial position to pay. Affidavit Annexure P-21 and accounts Annexure P-22 have been filed collectively. 7. Having regard to the facts and circumstances of the case and without expressing any opinion on merits, we are of the view that the petitioner should be relegated to the alternative remedy, subject to 2 C.W.P. No.17608 of 2008 the condition of paying Rs.10 lacs as a condition for hearing of appeal. The said amount will cover both the assessment years. The petitioner will be at liberty to deposit Rs.5 lacs for each assessment year. 8. If the appeal is filed within 30 days from today, the same be not dismissed on the ground of limitation and will be decided on merits in accordance with law. 9. The petition is disposed of. ( ADARSH KUMAR GOEL ) JUDGE November 19, 2008 ( L. N. MITTAL ) ashwani JUDGE 3