Case: Cement Marketing Company of India, Bangalore Vs. State of Mysore and Another

HEGDE, J.1. These are connected appeals by special leave. Herein the question of the appellants liability to pay sales tax in respect of certain transactions made in the years 1959-1960, 1960-1961 and 1962-1963 arises for consideration.2. The appellant was the selling agent of the State Trading Corporation of India (Private) Ltd. in the years in question. It had supplied to several consumers cement. The question is whether those supplies can be considered as "sales" under entry 54 of List II of the Seventh Schedule to the Constitution. The appellants contention is that they are not "sales" as the supplies in question were made on the basis of Cement Control Order, 1956, and the Mysore Cement Rationing and Licensing Order, 1957. Its further contention is that in computing the sales tax, excise duty said should not have been taken into consideration, firstly in view of rule 6(5)(j) of the Mysore Sales Tax Rules and nextly that the department is estopped from claiming the same in view of the earlier directions given by it. The Sales Tax Officer rejected both these contentions and levied the impugned assessments. The appellant without taking the matters in appeal under the Mysore Sales Tax Act challenged the validity of the assessments under article 226 of the Constitution before the High Court. The High Court rejected the appellants writ petitions. Hence these appeals.3. The question whether the transactions with which we are concerned in these appeals are "sales" is a mixed question of law and fact. Before that question can be decided, the fact-finding authorities under the Act should find out the various ingredients of the transactions and see whether they amount to "sales". Ordinarily the High Court does not go into questions of fact particularly when law prescribes a procedure for ascertaining those facts. The appellant was not justified in moving the High Court against the orders of the assessing authority. It should have gone up in appeal against those orders. It would have been proper if the High Court had refused to entertain the writ petitions.Even the contention of the appellant relating to the inclusion of the excise duty in the total turnover is essentially a question that should have been urged before the appellate authority. The appellate authority is competent to go into questions of fact as well as of law. In particular the contention of the appellant that the department is estopped from including the excise duty paid in the total turnover is one that should have been appropriately taken before the appellate authority.4.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The question whether the transactions with which we are concerned in these appeals are "sales" is a mixed question of law and fact. Before that question can be decided, theauthorities under the Act should find out the various ingredients of the transactions and see whether they amount to "sales". Ordinarily the High Court does not go into questions of fact particularly when law prescribes a procedure for ascertaining those facts. The appellant was not justified in moving the High Court against the orders of the assessing authority. It should have gone up in appeal against those orders. It would have been proper if the High Court had refused to entertain the writ petitions.Even the contention of the appellant relating to the inclusion of the excise duty in the total turnover is essentially a question that should have been urged before the appellate authority. The appellate authority is competent to go into questions of fact as well as of law. In particular the contention of the appellant that the department is estopped from including the excise duty paid in the total turnover is one that should have been appropriately taken before the appellate authority.