ADAM AND COMPANY Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) THE petitioner has filed this original petition to call for the records in the proceedings No. 001050/ 94 -95/A4 dated August 23, 2002 on the file of the first respondent, directing the respondent to refund the sales tax, surcharge, additional sales tax and additional surcharge collected as per assessment order dated September 20, 1999 assessment year 1994 -95.

(2.) THE petitioner is an assessee on the file of the respondent Commercial Tax Officer, Harbour I Assessment Circle, Chennai -108. The petitioner imported sugar and his total turnover was at Rs. 1,16,48,983 and claimed that the same was not taxable under the Tamil Nadu General Sales Tax Act, 1959. However, the first respondent passed the assessment order. Against the said order, the petitioner filed an appeal before the second respondent, who by his order dated August 10, 2000, upheld the tax at 8 per cent on the turnover of Rs. 1,16,48,983 and set aside the addition of Rs. 3,11,148 and penalty of Rs. 11,18,963. The High Court of Madras, in the case of Indian Sugar & General Industry Export Import Corporation Ltd. v. Commercial Tax Officer, Chennai -108 (W.P. Nos. 10128 & 10129 of 1999 dated November 22, 2001 reported in [2002] 127 STC 339 has held that the sale of imported sugar cannot be subjected to tax. Accordingly, the petitioner wrote to the first respondent who replied in his letter dated August 23, 2002 that the order passed by the Appellate Assistant Commissioner had been given effect to and since the assessment for the year 1994 -95 had become final, the request for refund could not be complied with. Hence the original petition.

(3.) LEARNED Senior Standing Counsel for the Revenue has contended that the petitioner cannot rely on the decision of the High Court of Madras which was passed in the case of some other assessees and as the petitioner has not challenged the order passed by the Appellate Assistant Commissioner further the same has become final ; once again, the petitioner cannot contend that in view of the order passed by the High Court of Madras, the tax collected from him should be refunded.