Madras HC directs Tobacco Dealer to Appellate Authority on alleged wrong availment of ITC as per Rule of Alternate Remedy [Read Order]

Madras High Court - Tobacco - Appellate Authority - wrong availmeIment ITC - Alternate Remedy - Taxscan

The Madras High Court  directed the  tobacco dealer to Appellate Authority  as per the Rule of Alternate Remedy.

The Writ petitioner, Tvl.F.M.Sales & Marketing is a registered dealer in the office of the respondent under TNVAT Act. This Court is informed that writ petitioner effected sale of about 5000 packets of what is known as ‘Hans Chap Khaini’ chewing tobacco vide a tax invoice dated 30.12.2010 to a local buyer in Arumbakkam. In the invoice, it was mentioned that the goods sold are non-taxable goods and exemption was claimed.

This consignment shall hereinafter be referred to as ‘said goods’ for the sake of convenience and clarity. In the course of a routine physical check, the rowing squad of the respondent detained said goods i.e., aforementioned consignment and a writ petition was filed and the Revisional Authority was directed to dispose of the matter. It may not be necessary to dilate further on those aspects of the matter as the impugned order has since been made.

Ms.Amirta Dinakaran, who accepted notice on behalf of lone respondent, submitted that impugned order is a reasoned order which has been made after giving sufficient opportunity to the writ petitioner i.e., ample and adequate opportunity to the writ petitioner to show-cause. The counsel adds that even personal hearings have been granted to the writ petitioner though it is not statutorily imperative.

Ms.Dinakaran added that it is not statutorily imperative for an Authority to give personal hearing, but in a given case if the Authority considers it necessary (owing to the complexity or factual controversies or other reasons) a personal hearing can always be given and this is one such case where personal hearing has been given and this is not subjected to any disputation or disagreement. Personal hearing has also been captured in the impugned order.

Mr.R.Senniappan, counsel for writ petitioner submitted that it is not clear as to whether the order of Joint Commissioner has been assailed. Therefore, these are all matters which (at best) have to be considered in an appeal. In other words they do not warrant interference in writ jurisdiction.

The single bench of Justice M.Sundar held that there is no disputation or disagreement that the impugned order is appealable. In other words, statutory appeal qua impugned order is available to the writ petitioner, which will be under Section 51 of TNVAT Act.

“As all these details turn on facts, it would be appropriate that the Appellate Authority examines this if the writ petitioner chooses to file an appeal and therefore, this Court refrains itself from expressing any opinion on these aspects of the matter in this order. This is more so as this Court is relegating the writ petitioner / dealer to the alternate remedy of an appeal,” the court said.

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