Escorts Limited, Faridabad vs Deputy Excise and Taxation Commissioner (Inspection) Faridabad and others

M.M. Kumar, J.—This order shall dispose of CWP Nos. 15302 and 15304 of 1992, which have been filed under Article 226 of the Constitution by the same assessee-petitioner challenging similar orders but in respect of different periods, passed by the Deputy Excise and Taxation Commissioner (Inspection), Faridabad-respondent No. 1 u/s 9(2A) of the Central Sales Tax Act, 1956 read with Section 47 of the Haryana General Sales Tax Act, 1973. The subsequent notice(s) of assessment and demand order(s) issued by the Assessing Authority-respondent No. 2 have also been subject matter of challenge in these petitions.

The petitioner is a dealer under the provisions of the Haryana General Sales Tax Act, 1973 (for brevity, ''the Act''). The principal ground of challenge in these petitions is that the petitioner has paid tax for the quarter ending 30.6.1991 and 30.9.1991 as per return which were accepted by the assessing authority. After making assessment, the assessing authority passed a further order of penalty on the ground that the tax as per return was not paid within the stipulated period. On 20.11.1992, this Court while issuing notice passed interim orders in terms of orders passed in CWP No. 4964 of 1992, which was also filed by the petitioner and recovery of penalty was stayed.

No one has put in appearance in support of the petition. With the assistance of the learned State counsel we have perused the record.

In the written statement filed on behalf of the respondents a preliminary objection has been raised that the petitioner has remedy of filing of an appeal against the order imposing penalty under the provisions of Section 39of the Act. Such an appeal lies before the Joint Excise and Taxation Commissioner (Appeals) Faridabad. Further appeal is also maintainable before the Sales Tax Tribunal, Haryana. However, the petitioner without exhausting the remedy of appeal has straightway approached this Court by filing the instant petitions. In that regard reliance has been rightly placed on the judgment of Hon''ble the Supreme Court rendered in the case of Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa and Others, , holding that where alternative remedy is provided in a statute it should have been availed of by the petitioner.

In view of the fact that remedy of appeal is available with the petitioner, we deem it appropriate to relegate the petitioner to avail that remedy first. Accordingly, it is directed that if an appeal is filed by the petitioner against the orders impugned in these petitions within a period of four weeks, the appellate authority would take a decision in the matter. Since stay in respect of recovery of penalty has been operating, therefore, the question of limitation for filing the appeal would not come in the way of the petitioner. The stay order is extended till decision of the appeal.

These petitions are disposed of in the above terms. The office is directed to ask the counsel for the petitioner to note this order.