UNIVERSAL MATCH WORKS Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) AGGRIEVED by the judgment and decree in A. S. No. 137 of 1982 on the file of the District Court, Tirunelveli, the defendant has filed the above second appeal.

(2.) THE facts of the case are as follows : THE appellant is a manufacturer and dealer in matches. THEy sold matches and in the course of inter-State trade and commerce, sales tax under the Central Sales Tax Act (74 of 1956) was levied on the sale of matches and the amount so levied was paid by the appellant under protest. Subsequently, the appellant herein filed W. P. Nos. 2703 to 2706 of 1967 (W. P. No. 2705 of 1967 Universal Match Works, Kovilpatti v. Commissioner of commercial Taxes, Board of Revenue, Madras-5) for the issue of a writ of mandamus directing the Commissioner of Commercial Taxes, Board of Revenue, madras to refund to the appellant the amounts so paid by them which was collected towards tax. THEse writ petitions along with other petitions came up before Veeraswami and Ramaprasada Rao, JJ. , on 30th January, 1968. THE Bench of this Court observed that the petitioners will be entitled to refund of the proportionate tax only on furnishing security therefor in each case to the satisfaction of the assessing officer. THEreafter, the appellant along with others filed several writ miscellaneous petitions seeking an order of cancellation of security to be furnished by the appellant pursuant to the orders in the writ petitions. Veeraswami, C. J. and Gokulakrishnan, J. , by an order dated 29th July, 1969, observed as follows : "security was directed as a safeguard to the revenue, but only in the event of the Revenue, filing an appeal in the Supreme court. As a matter of fact no such appeal has been filed. THE order of this court had, therefore, become final. Pursuant to that order, we are told that the assessment had been revised in part. On that basis, the assessee has got a refund of a portion of the tax referable to excise duty added in the taxable turnover on furnishing security therefor. It is stated that since then ordinance No. 4 of 1969 has come into force and the security should not be cancelled. We fail to see any substance in this contention because the security as we have already mentioned was ordered for a specific purpose, viz. , to enable the Revenue to file an appeal and thus safeguard the Revenue. THE passing of the Ordinance was not in contemplation at the time the order for security was made. In the circumstances, the security is cancelled. " * Subsequently, the refund of tax claimed by the appellant in the writ petition was ordered by the respondent. THEreafter, Central Act 28 of 1959 came into force which was led the respondent herein to file O. S. No. 38 of 1976 against the appellant for recovery of a sum of Rs. 16, 956. 22 together with interest. It was contended by the respondent, after narrating the events that have taken place, that they are entitled to claim the refund made to the appellant. THE appellant contended before the trial court that the civil court has no jurisdiction to entertain the suit relating to the sales tax matters and that the court is barred from entertaining the said suit in view of the judgement of the Supreme Court in Comorin Match Industries Limited v. Kovilpatti and Others [s. L. P. (Civil) Nos. 2013-2023 of 1973, etc. ]. It was further averred by the appellant (defendant) that the respondent herein has no right to question the judgment of the Supreme Court except to the extent to which any new statute empowers the respondent to do so. Central Act 28 of 1969 has no concern nor in any manner deals with the judgment striking down section 8 (2) and (2a) of the Central Sales Tax Act. THE validation provisions of central Act 28 of 1969, viz. , section 10 thereof, do not touch that portion of the judgment which quashed the assessment orders on the basis of the invalidity of section 8 (2) and (2a) of the Central Sales Tax Act. In view of the judgment of the Supreme Court in S. L. P. (Civil) Nos. 2013-2023 of 1973 dated 21st february, 1974, the suit has to be dismissed. It was also averred that the suit is barred by res judicata.