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Judgment
V.S. Sirpurkar, J.—These two writ petitions, being W.P.Nos.18965 and 18966 of 1998 are having some peculiar facts.
The petitioner, the assessee herein purchased some goods from the Tamil Nadu Electricity Board (hereinafter referred to as the ''T.N.E.B.'' for the sake of brevity), on his tender having been accepted on 10.7.1990. It is an admitted position that the goods, after being received, were despatched outside the State of Tamil Nadu, i.e., to Raigarh in the State of Madhya Pradesh. The petitioner/assessee then filed a return and was issued a pre-assessment notice in respect of the goods purchased by him from the T.N.E.B. and which goods were despatched outside the State. The assessee took an objection that the goods were exempted under the notification dated 1.11.1982 bearing G.O.Ps.No.1215, under which a blanket exemption was granted in respect of the tax payable under the Tamil Nadu General Sales Tax Act (in short the ''T.N.G.S.T. Act'') on all sales of goods effected by the T.N.E.B. and its branches in the State of Tamil Nadu u/s 17(1) of the T.N.G.S.T. Act. This plea was not accepted by the assessing officer, who, finding that the goods were transferred outside the State, taxed the goods. In coming to this conclusion, the assessing officer also came to the conclusion that the goods were not iron scrap. But since they were purchased on ''As is where is'' basis, it was a machinery (Turbine Alternator) which was purchased by the dealer which was falling under the entry in Sl.No.41D of the First Schedule of the T.N.G.S.T. Act.
The dealer then challenged the order of the assessing officer by way of an appeal before the Appellate Assistant Commissioner. He also took the same view that the goods sold were the machineries and were covered under Item 41D of the First Schedule. He also relied on the specific condition of the tender that where these goods are to be taken outside the State, the provisions of purchase tax would be applicable to the transaction. Taking this view, the appeal was dismissed. The matter was carried before the Sales Tax Appellate Tribunal, where also the petitioner lost the matter. The Tribunal by its order dated 3.9.1996, confirmed the earlier orders passed by the assessing officer as also the appellate authority. The appellate Tribunal also took the view that the provisions of Section 7-A(1)(c) would be applicable to insofar as it pertained to the despatch of the goods made outside the State of Tamil Nadu in the relevant assessment year. The petitioner then kept quiet. On the basis of the order passed by the appellate Tribunal, the petitioner paid the whole tax found due against him on 30.5.1997. The matter had died its logical death.
Thereafter, however, the petitioner filed two original petitions before the Tamil Nadu Taxation Special Tribunal (hereinafter referred to as the ''Special Tribunal''). By the first petition, he challenged the order of the appellate Tribunal, which he had failed to challenge and had allowed to reach its finality. By the second Original Petition, he challenged the assessment made in pursuance of the order of the appellate Tribunal. In his petitions, the petitioner mainly relied on the Supreme Court judgment reported in Shanmuga Traders and Others Vs. State of T.N. and Others, , which according to him was supporting his contention that he was not liable to pay any tax on account of the goods being exempt under the notification dated 1.11.1982, to which we have earlier made a reference in this order.
In the aforementioned judgment, the Apex Court had dealt with similar sale made by the T.N.E.B. in case of iron scrap. The Apex Court had held therein that the goods in question being declared goods, could be taxed only at a single point, that is, only one sale in the State could be subjected to tax. It is for the State to determine whether the single point should be the point of first sale in the State or the last sale in the State or any intermediate sale in the State. It was further held that if the single point is fixed by the State at, say, the point of first sale and the State exempts the first sale from the payment of tax, either by a general provision or a specific provision applicable to a class of seller, the particular seller or the goods may not be subjected to tax at either that point of first sale or any subsequent sale in the State.
Relying generally on this judgment, the petitioner pleaded before the Special Tribunal that his case was squarely covered by the judgment. The Special Tribunal, rejected the petitions holding that in fact, the lis had attained the finality because the petitioner had allowed the earlier order of the appellate Tribunal to attain the finality and further he had not filed any Tax Case by way of a further revision as provided u/s 38 of the T.N.G.S.T. Act. The Special Tribunal also found that the petitioner had even made the payment of the tax as was found due against him. The Special Tribunal also recorded a finding that there could be a liability u/s 7-A of the T.N.G.S.T. Act and that the appellate Tribunal had confirmed the view of the appellate authority as well as the assessing authority that Section 7-A(1)(c) was applicable to the facts of the case. In that view also, the Special Tribunal dismissed the petitions. The present two writ petitions are filed as against the said order of the Special Tribunal.
Mr.Chopda, learned counsel for the petitioner very persuasively pointed out that the judgment of the Supreme Court referred to earlier would hold the field and would actually result in the tax recovered from the petitioner as illegally recovered tax. He appeals to us to use our discretionary original jurisdiction under Article 226 of the Constitution to suggest that such course can be undertaken by us even if it is presumed against him that the lis had come to an end and the judgment of the appellate Tribunal had attained the finality. Insofar as the merits are concerned, Mr.Chopda very fervently argues that the aforementioned judgment of the Apex Court was clear enough to show that there could be no applicability of Section 7-A(1)(c).
We are afraid, we cannot accept both these arguments. Firstly, speaking about the finality, it cannot be denied that the petitioner kept silent and had not challenged the order of the appellate Tribunal by way of a statutory revision u/s 38. If he did not choose to take his statutory remedy, a mere subsequent change in law (if we consider the Apex Court judgment as having effected that change) would be of no consequence and the petitioner would be bound by the earlier judgment which has attained finality. There are any number of decisions on this question that a mere subsequent change in law does not give a fresh cause of action to a petitioner whose lis has attained the finality, and indeed such finality had been attained way back on 3.9.1996 itself. We are, therefore, unable to entertain these writ petitions and we are of the confirmed view that the Special Tribunal was also right in taking that view.
Insofar as the second question is concerned, since we have affirmed the view taken by the Special Tribunal in respect of the proceedings having attained finality, we need not go into the further question. But, before closing we may only point out that even the subsequent judgment of the Apex Court does not deal with the question u/s 7-A(1)(c) and is applicable to the declared goods like iron scrap and in the present case, there is a finding of fact that the goods purchased by the petitioner were not iron scrap but machinery covered under Item 41-D of the First Schedule. We would not go beyond this as it is not really a controversy pending before us. The writ petitions have no merits and the same are dismissed, but not before appreciating the efforts taken by the learned counsel. Consequently, connected W.M.P.Nos.28775 and 28777 of 1998 are closed. No costs.