C.S.P. Singh, J. - (1.) The petitioner manufactures sugar and for that purpose purchased cane in the State of Uttar Pradesh as also in the State of Bihar. Purchase tax has to be paid on purchase of sugar-cane made by the petitioner. This tax is collected in the assessee's case on the bag basis. The respondent No. 3 imposed purchase tax at the rate of Rs. 5.20 paise per bag. The petitioner made a representation to the Cane Commissioner, U. P. against the rate of imposition on the ground that the amount in question had been fixed by taking into account cane purchased by the petitioner from the State of Bihar. This representation was, however, turned down by the Cane Commissioner by his order dated 1st August 1972 (Annexure 'F' to the petition). The petitioner thereafter filed an appeal to the Commissioner, and in the memorandum of appeal, one of the grounds that he took was that purchase tax on cane purchased from Bihar cannot be made the subject matter of tax in view of decision of this Court in Civil Miscellaneous Writ No. 210 of 1967 connected with Miscellaneous Writ No. 724 of 1967 (decided on 22-12-1969).
(2.) Sri L. K. Nagar, Cane Commissioner, has passed the following order on September 14, 1972 on the appeal of the petitioner:- "Appeal under Sub-sec. 5 of Section 3 of the U. P. Sugarcane (Purchase Tax) Act, 1961, filed by Messrs Cawnpore Sugar Works Ltd., Padrauni, district Deoria : I have heard the appellant. The question whether Purchase Tax is leviable on Bihar sugarcane has been referred to Government and final orders on their appeal can only be passed on receipt of orders from Government in this regard." This order of Sri Nagar, to say the least is shocking. The appeal was essentially directed against the Government, and it was highly improper on his part to refer the matter to one of the parties interested in the result of the appeal and to indicate in his Order that the appeal would be decided in accordance with the decision taken by the Government. This is a clear abdication of the powers conferred upon the Commissioner. The appellate powers conferred upon the Commissioner are of a quasi-judicial nature and such powers must be exercised in an impartial manner. The type of the order passed by the Commissioner cannot. but shake the confidence of the litigants. To us, it appears that either Sri Nagar is totally ignorant of the nature of the powers conferred upon him as an appellate authority, or he is so subservient to the Government that he cannot exercise his independent judgment without seeking instructions from the Government. In either case, it will not be safe to entrust the appellate powers to such an officer.
(3.) Coming now to the merits of the controversy, the matter is settled by a decision of this Court in the case of Lakshmi Devi Sugar Mills (P) Ltd. v. State of U. P., C.M.W. No. 1886 of 1971 connected with C. Misc. Writ No. 2973 of 1970. D/d. 3.8.1972 , wherein it has been held that purchase tax cannot be levied by the State of U. P. in respect of cane purchase from the State of Bihar. The impugned order which was passed by respondent No. 3 (Annexure III to the writ petition) dated 19-7-1972 and the two orders of respondent No. 2 dated 1st August 1972 (Annexure. V to the writ petition) and 14-9-1972 (Annexure VII-A to the supplementary affidavit) are quashed. The respondent No. 2 is directed to refix the purchase tax payable by the petitioner, after excluding purchases of cane made by the petitioner from the State of Bihar. The petitioner has also prayed for a refund of purchase tax paid in respect of Bihar cane. So far as this relief is concerned, in conformity with the decision in Lakshmi Devi Sugar Mills (P) Ltd. v. State of U. P., C.M.W. No. 1886 of 1971 connected with C. Misc. Writ No. 2973 of 1970. D/d. 3.8.1972 , we do not think is proper to grant it in this petition. The petitioner may, however, take such steps as are open to him under the law, either by filing a suit for refund or requesting the appropriate authorities to adjust the amount of tax already paid by him towards such arrears of tax which are or may fall due.;