Commissioner Of Sales Tax And Anr. vs Sales Tax Appellate Tribunal And ...
2002 Latest Caselaw 242 Del

JUDGMENT

Dalveer Bhandari, J.

1. This is a rather unfortunate litigation where the Sales Tax Appellate Tribunal (in short Tribunal) has imposed costs on the petitioners - the Commissioner of Sales Tax and others. The petitioner aggrieved by the said order has preferred this petition under Article 226 of the Constitution of India for issuance of a writ of certiorari or order or direction in the nature thereof quashing the order dated 15.1.2002 and the order dated 11.6.2001 passed by the Tribunal.

2. Brief facts which are necessary to dispose of this writ petition are recapitulated as under.

3. The appeal of M/s Bhullar (India) Limited was filed before the Assistant Commissioner-IX against the order of assessment. The learned Assistant Commissioner directed the appellant to deposit the entire disputed demand of Rs. 1,41,984/- by 13.12.2000. This order was challenged in appeal before the Tribunal. While the appeal was pending before the Tribunal, the first appellate court dismissed the appeal in liming for the non-deposit of the amount of demand. The Tribunal observed that the order of the first appellant authority was contrary to the decision of the Tribunal in the case of M/s Plychem Limited and M/s Sri Ram & sons passed on 8.9.2000 & 22.8.2000 reported at 39 DSTC J 23 and J-55 respectively. The Tribunal held that the appeal should not have been dismissed in liming pending consideration of appeal by the Tribunal. Despite these orders the first appellate authority dismissed the appeal for non-deposit of the amount. The Tribunal in this case observed:

The Tribunal found that the events unmistakably indicate that it was attempted to pre-empt the appeal before this Tribunal. The Tribunal also noticed that Delhi High Court in M/s Rahul Enterprises v. CST 38 DSTC J 173 which was approved by the Hon'ble Supreme Court in Sales Tax Bar Association v. Commissioner, Sales Tax on the inherent powers in this Tribunal for achieving the ends of justice and to prevent the abuse of the provisions as a necessary con-comitant to the principal jurisdiction. It was also notice that there was no system in the office of the respondent to communicate to the aforesaid subordinates to the Commissioner those decisions of this Tribunal which have general application (such as the decision in the case of M/s Polychem Ltd. and M/s Sri Ram & Sons), which, subject to the provisions of Section 45 are final as against the department.

Apart from setting aside the order dated 19.12.2000 passed by the learned AC, the respondent was directed by the Tribunal vide order dated 11.6.2001 that all such decision of the Tribunal are communicated by the respondent to all the authorities subordinate to him, drawing their attention to the requirement of law to comply with the orders of the Tribunal and to sent a copy of the departmental instructions so issued to the registry within two months failing which the matter shall come up before the Tribunal for order relating to costs for payment to the appellant in respect of unnecessary harassment caused to the appellant by the order of the learned AC passed in contravention of the directions of the Tribunal in its earlier orders namely as M/s plychem Ltd. and M/s Sri Ram & Sons.

Nothing seems to have moved till 3.12.2001 when the registry brought the fact of non-compliance of the order dated 11.6.2001 to the Tribunal. It was directed that a two weeks notice be issued to the respondent which was issued on 4.1.2001 requesting the respondent to show cause why the matter be not placed before the Bench in accordance with the directions. However, no reply was furnished. A copy of the writ petition dated 18.12.2001 supposedly filed by AC-IX (who was not respondent before the Tribunal) against the Tribunal and the petition was placed on record. In the meantime the petitioner appellant moved the present application stating that he inspected the file on 29.11.2001 and observed that no departmental instructions issued by the learned Commissioner are on record of the Tribunal's file inspire of two months period having been lapsed. The application was heard on 2.1.2002 when in the absence of the learned Govt. Counsel the learned DR was directed to file written reply in the form of affidavit of an officer not below the rank of Addl.CST by 4.1.2002 as to whether the order was complied and if not why cost should not be imposed per day of non-compliance of the Tribunal's order. On 4.1.2002 again no one appeared and the learned DR was called and reminded of the earlier directions. We were assured that the direction dated 2nd January would be complied but no affidavit was filed. Instead a personal communication was made that the respondents are considering to issue instructions. The appellant's counsel informed that the appeal has still not been restored and recalled the observations in the order. The learned Govt. Counsel was invited to argue against the imposition of costs and he submitted that since the costs can be imposed for regulating the proceedings and the proceedings have been concluded in the present matter, no cost can be levied.

The Tribunal further observed in this case that:

The case projects scant regard for justice, fairness and objectivity. Even though the orders in M/s Polychem Ltd. and M/s Sri Ram & Sons in the same set of facts were passed several months earlier than the learned AC's order and were accepted by the respondent by not taking any step against the same and otherwise also the Tribunal following the same principles and against which no case law has been quoted till today, neither there is any communication by the respondent to the lower Authorities nor the respondent is prepared to inform us as to how their compliance is proposed to be assured to avoid unnecessary litigation and undue harassment of the dealers. In the present case the Tribunal recorded a finding that the learned AC functioning under the respondent, attempted to pre-empt appeal before this Tribunal. The respondent is the first source of information to the First Appellate Authorities and assessing authorities. That is why the said direction was issued to the respondent and the question of cost was kept at the back burner.

Judicial propriety demands that the first appellate authority lower in hierarchy to the Tribunal respect the orders of the Tribunal, irrespective of whether or not the respondent has any grievance against the order. The fact that the respondent has not sought any review of that order or made nay application under Section 45(1) of the DST Act, 1975 shows that the respondent was not aggrieved."

4. The learned Tribunal in its order imposed costs of Rs. 11,000/- towards the counsel fee and Rs. 2,000/- towards expenses for filing appeal. The petitioner is aggrieved by the said order of the Tribunal.

5. Admittedly, the Sales Tax Appellate Tribunal is higher in hierarchy then the Commissioner of Sales Tax. The petitioner instead of complying with the directions of the Tribunal, questioned the propriety of Tribunal in issuing those directions. The petitioner in its grounds also mentioned that "Tribunal cannot give directions of general nature that its orders of general importance be circulated to all the officers of the department, particularly, when such a direction is vague in sofar as it specks of orders of general importance without defining such orders.

6. In pyramidical judicial system orders/directions of higher authorities subordinate to them otherwise the entire system would collapse. The subordinate authorities would not be justified in ignoring the directions on the ground that the directions are vague or directions have been issued without defining how they are of general public importance.

7. On consideration of the totality of the facts and circumstances of the case, in our opinion, no interference is called for with the orders passed by the Tribunal.

8. The writ petition being devoid of any merit is dismissed.

CM No. 1832/02 is also accordingly disposed of.