ROM INDUSTRIES Vs. STATE OF J AND K

JUDGEMENT

(1.) By this writ petition, the petitioner seeks a direction to the Deputy Excise Commissioner, Toll Post Lakhanpur, not to collect toll tax under SRO-80 of 30th March, 2000 on the crude vegetable oil imported by it in big tankers in the State of Jammu and Kashmir as raw material for manufacture of edible oil by refining the same. The case of the petitioner is that by virtue of SRO-80 dated 30th March,2000, additional toll tax at the rate of 4% has been levied on "edible oil" and the oil imported by it for refining for manufacture of edible oil being not edible in that form, no additional toll can be levied and collected in respect thereof under the above SRO.

(2.) We have heard the learned counsel for the petitioner, Mr.Sunil Sethi. The learned counsel fairly stated that the petitioner is not aggrieved by SRO 80 but by the levy of toll tax thereunder on the vegetable oil imported by it which, according to the petitioner, is not edible oil. The petitioner wants a direction to the respondents not to collect toll tax under the above SRO, which is applicable to the "edible oil", on the oil imported by the petitioner which is not edible but non-edible.

(3.) We have also heard the learned counsel for the respondents, Mr. M.A. Bhat, who submits that there being no dispute about the fact that under SRO 80 dated 30th March, 2000, additional toll tax is leviable only on "edible oil" and not on non-edible oil, the controversy sought to be raised in this writ petition whether the vegetable oil imported by the petitioner is edible oil or not, cannot be decided by this court in exercise of writ jurisdiction. The appropriate forum for deciding such factual disputes in regard to the nature of the commodity subjected to toll tax, according to the learned counsel for the respondents, is the assessing officer at the toll gate and it should be raised at the first instance only before him not before this Court. The learned counsel submits that this writ petition is not only misconceived but pre-mature and is liable to be dismissed on that count itself. He stated that if according to the petitioner the vegetable oil imported by it is not edible oil, the petitioner should make appropriate representation in that behalf to the officer at the toll post, who shall undoubtedly examine the same and not levy any toll tax under SRO 80 if he is satisfied that the oil imported by the petitioner is not edible oil. He also stated that if such a representation is made, the concerned authority shall make necessary inquiries and investigations to ascertain whether the oil imported by the petitioner in any consignment or tanker, on which toll is sought to be levied, is edible oil or not, and if he finds that it is not edible oil, no toll tax shall be collected in respect thereof under SRO 80.