M/s.Bengal Chemicals & Pharmaceuticals Limited v. The Assistant Commissioner (CT) LTU, Abids, Hyderabad & Ors.

THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.29587 of 2010 ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) The writ petition is filed assailing the order of the third respondent dated 26.07.2010 passed in exercise of the appellate jurisdiction under Section 31(1) of the Andhra Pradesh Value Added Tax Act, 2005 (the VAT Act, for brevity). Admittedly, the petitioner also availed the remedy under Section 33 of the VAT Act by filing an appeal before the Sales Tax Appellate Tribunal, Hyderabad (STAT, for brevity), which is pending, and stands posted to 02.06.2011 for hearing. Inspite of the same, the petitioner filed the instant writ petition raising various grounds inter alia contending that phenol and napthalene balls, the two products manufactured by the petitioner company, are exigible to 4% tax as they fall under Item 20 of Schedule IV of the VAT Act, whereas the assessing officer levied tax at 12.5% treating the products as ‘general goods’ under Schedule V of the VAT Act. To sustain the contention, the petitioner further submits that phenol and napthalene balls are classified under HSN code 3808.99.10; HSN code 3808 found mention in Entry 20 of Schedule IV of the VAT Act; and therefore, it attracts 4% tax only. This Court heard the Counsel for the petitioner and the Special Counsel for Commercial Taxes. Indisputably, aggrieved by the impugned order of the third respondent, the petitioner has already preferred an appeal under Section 33 of the VAT Act, which is pending before the STAT. It is axiomatic that an aggrieved person cannot simultaneously pursue the remedy provided under the Statute, and the remedy provided under Article 226 of Constitution of India (Carl Still G.M.B.H. v State of Bihar[1] and Bombay Metropolitan Region Development Authority, Bombay v Gokak Patel Volkart[2]). Therefore, notwithstanding the vehemence in the submission of the petitioner’s counsel, we are not inclined to exercise discretion at this stage. The petitioner may raise all the grounds before STAT and thereafter, if aggrieved, there is always a revision, under Section 34 of the VAT Act, before this Court on a question of law. If this Court expresses any opinion at this stage, it would be prejudicial to the assessee as well as the Revenue. As noticed supra, it appears that the case stands posted to

02.06.2011 before the learned STAT. We may observe that the matter may be finally disposed of on that day. The writ petition, with the above observations, stands dismissed. No costs. _______________ (V.V.S.RAO, J) ______________________________

(RAMESH RANGANATHAN, J)

19.01.2011 Pln