Enchante Jewellery Ltd. vs State & Ors.

M/s Enchante Jewellery Limited has filed this writ petition seeking quashing of Commissioner Sales Tax, Jammu and Kashmir Government,

Jammu's Order No. 1Appeal/0102/108788 of September 20, 2001 whereby petitioner's appeal against Deputy Sales Tax Commissioner (Adm.)

Jammu's order of March 23, 2001 passed under Section 15A(4) and (9) of the Jammu and Kashmir General Sales Tax Act, 1962 (hereinafter to

be referred as ""Act""), had been dismissed.

Facts giving rise to the filing of this writ petition may be stated thus:

M/s Enchante Jewellery Limited, Gurgaon, Haryana was found carrying taxable goods i.e. Gold/Jewellery in Vehicle No. HR 551126, on March

6, 2001. These goods were being carried uneupported by documents as required under Section 15A(2) of the Act.

Value of these goods was assessed at Rs. 87,65,162 by Deputy Sales Tax Commissioner (Adm.) Jammu. A show cause notice was, accordingly,

served on Mr. Ravinder Thusu, petitioners representative, to appear on March 22, 2001 to show cause as to why penalty under Section 15A(4)

be not imposed because the goods were being carried by an unregistered dealer and without requisite documents.

Neither Mr. Ravinder Thusu nor any of petitioners other representative appeared before the Deputy Sales Tax Commissioner (Adm.) Jammu on

the appointed date.

Deputy Sales Tax Commissioner (Adm.) Jammu, accordingly, issued an older on March 23, 2001 imposing a penalty of Rs.7,36,272.60 under

Section 15A(4) of the Act and making the petitioner liable to pay security amounting to Rs. 7,36,272.60 under section 15A(9) of the Act.

The petitioner filed an appeal against the order of the .Deputy Sales Tax Commissioner (Adm), Jammu pleading that it had brought Jewellery in the

State to explore the market and find out the buyers with a view to start its business in the State of Jammu and Kashmir and not with any

clandestine intention. It had been, inter alia, urged by the appellant before the Commissioner that Deputy Sales Tax Commissioner (Adm.) Jammu

had not allowed sufficient opportunity to the appellant to project its case.

This appeal, slated for hearing before the Commissioner on April, 24, 2001 was adjourned as requested by appellant's learned Advocate. It was

again adjourned on the. request of the appellant to June 4, 2001.

Mr. B. B. Bakshi, appearing before the Commissioner as appellant's counsel, sought further adjournment, expressing his inability to argue the case.

Appeal was accordingly adjourned to June 13, 2001 when a fax message was received that Mr. G. C. Sharma, Senior Advocate had been

engaged to argue the appeal. On the adjourned date, Mr. Bakshi filed additional written objections and the case was fixed for hearing at Jammu on

31.07.2001. The case was again adjourned to August 9, 2001.

Though fixed several times, for hearing, the appeal was adjourned on one or the other excuse of the appellant, and when despite last opportunity

having been allowed, none had appeared to argue the appeal for the appellant, it was heard in its absence.

The Commissioner examined the appeal of the appellant on the grounds urged in the memo of appeal and finding no merit in it, rejected it vide his

order of September 20, 2001.

Learned Senior Counsel appearing for the petitioner. Mr. D.C. Raina submitted that sufficient opportunity had not been allowed to the petitioner to

present its case before the Commissioner and, that in any case, the order was bad in law, because the provisions .of the Code of Civil Procedure,

would not permit dismissal of appeal on merits when the appellant was mot present.

I have considered the submissions.

I find both the contentions of Mr. Raina to be untenable. This is so because Code of Civil Procedure is not applicable to the appeals under the

Jammu and Kashmir General Sales Tax Act, 1962. The appeals before the Authorities under the Act are governed by the self contained procedure

prescribed in Rule 52 of the Jammu and Kashmir General Sales Tax Rules, 1962 which for facility of reference reads thus:

Procedure for the disposal of appeals :

(a) The Appellate Authority after entertaining the appeal shall fix the date of hearing by a notice in Form ST53. A copy of the notice shall also be

issued to the Assessing Authority.

(b) The Appellate Authority shall not ordinarily allow more than two adjournments on the request of the appellant and in case the appellant or his

agent fails to appear on the date(s) of hearing the order shall he passed exparte on the merits of the case. The Appellate Authority shall not give

more than one adjournment on the request of the Assessing Authority if such authority wants to represent his case.

(c) The Appellate Authority shall in the last date of hearing announce the date on which the order shall be issued and it shall be recorded on the

appeal file. The order shall be issued on the date so announced unless the Appellate Authority for reasons to be recorded in writing on the file

defers the announcement, of the order.

(d) The Appellate Authority shall in his order mention all the grounds taken in the memorandum of appeal and any other additional grounds taken

during the course of appellate proceeding with the permission of the said authority; provided that before entertaining such additional grounds the

Appellate Authority is satisfied that the appellant had a sufficient cause for not taking such additional grounds in the memorandum of appeal.

(e) The Appellate Authority shall indicate in his order the quantum of reduction in taxable turnover and the extent of reduction in the tax and any

other sum reduced in consequence of his order.

(f) A certified copy of the order shall be issued to the appellant free of charges. Certified copies of the order shall be issued to the Commissioner,

Deputy Sales Tax Commissioner and the Assessing Authority.

Perusal of the above quoted Rule, when read with the order of learned Commissioner indicates that the learned Commissioner had been quite

liberal in allowing adjournments to the petitioner/appellant although the Rules framed under the Act would not contemplate adjournment of appeals

on more than two occasions. In terms of the Rule, failure of the appellant to appear on the dates fixed for the hearing of the appeal had to result in

passing of exparte order on merits of the case.

This is what the learned Commissioner had done in the present case and, in that view of the matter, I do not find merit in petitioner's counsel's

submission that the petitioner/appellant had not been allowed sufficient opportunity to represent its case before the Commissioner and the order

was bad in law because of its having been passed in the absence of the appellant, on merits by the learned Commissioner. Plea of the petitioner

that he had not been allowed sufficient opportunity to represent its case before the Deputy Sales Tax Commissioner too is found to be without

merit.

This writ petition lacks substance and is dismissed.