SAI MADHAV BIOTECH Vs. ASSISTANT COMMISSIONER

JUDGEMENT

(1.) The endorsement of the 1st respondent dated 29.3.2010 is under challenge in this Writ Petition as illegal, arbitrary and ultravires Section 72 of the A.P.V.A.T. Act, 2005 (hereinafter referred to as 'the Act'). The petitioner seeks a consequential direction to the 1st respondent to consider his representation dated 11.03.2010, and to redress his grievance.

(2.) Facts, in brief, are that the petitioner, a registered dealer on the rolls of the 1st respondent, is a partnership firm engaged in the manufacture and sale of organic manure developed on plant wastage namely neem fruits. The petitioner would submit that organic manure is exempt from tax under Entry 26 of the First Schedule read with Section 7 of the Act. Relying on a decision of the Advance Ruling Authority, in "M/s Jyothirmayi Neem Products, Mangalagiri", classifying neem fruit based powder, sold as organic manure, as bio-fertilizers and assessing it to tax at 4%, the 1st respondent issued notice dated 17.2.2009 calling upon the petitioner to show cause why the goods in question should not be taxed, and the exemption claimed by the assessee not be denied. The petitioner submitted their objections thereto. In the order of assessment dated 26.2.2010, the assessing authority held that the clarification of the Advance Ruling Authority, in "M/s Jyothirmayi Neem Products, Mangalagiri dated 30.11.2007", was binding on all officers other than the Commissioner and, in view of the clarification, the proposed levy of tax at 4% was being confirmed. The petitioner was called upon to pay tax of Rs. 6,43,177/- within 30 days from the date of service of the order, and was informed that an appeal lay against the order of assessment, under Section 31(1) of the Act, within 30 days of receipt thereof.

(3.) The petitioner submitted an application on 11.3.2010, under Section 72 of the Act, requesting the assessing authority to re-examine the issue. In his endorsement dated 29.3.2010, the 1st respondent observed that he was not competent to review the matter already finalized; and the petitioner should, instead, have filed an appeal under Section 31(1) before the competent authority within the stipulated time. It is this order of the 1st respondent dated 29.3.2010 which is the subject matter of challenge in this Writ Petition.