GULATI, J. - (1.) THIS and the connected writ petitions can be conveniently disposed of by a common order as they are by the same petitioner and raise the same question arising out of identical set of facts.
(2.) THE petitioner is a limited company engaged in the manufacture and sale of sugar. The common question involved in this group of writ petitions is as to whether the value of gunny bags in which sugar is packed can be subjected to sales tax when the turnover of sugar itself is exempt. It is the case of the petitioner and the same has not been denied that the petitioner-company, like an other manufacturers of sugar, utilises gunny bags as packing material The sugar is always packed in gunny bags before it is stored or is offered for sale. At no time sugar is kept loose as otherwise the quality, grade and colons of sugar deteriorate. The petitioner further states that no extra or separate charge is made from the purchasers on account of the supply of sugar bags. It is further stated that sugar is always sold in that condition and is never sold in bulk or loose,; nor is any rebate allowed to a purchaser who may offer to return the gunny bags or to supply his own gunny bags. Previously the turnover of sugar was liable to sales tax both under the U.P. and the Central Sales Tax Acts. By a Notification No. 5T/4485/X, dated 14th December, 1957, issued under section 4(1)(b) of of the U.P. Sales Tax Act the turnover of certain articles was exempted from levy of sales tax, if additional Central Excise duty was leviable on those articles and proof was furnished of the additional excise duty having been paid. Sugar is one of such items upon which the additional Central excise duty was leviable. In respect of the assessment years 1961-62 to 1963-64 regular assessments were made both under the U.P. and the Central Sales Tax Acts exempting the turnover of sugar from payment of tax. No tax was levied on the value of the gunny bags either. Subsequently, proceedings under section 21 of the U.P. Sales Tax Act were taken on the ground that the turnover in respect of gunny bags had escaped assessment. Fresh assessments were accordingly made for the assessment years mentioned above levying sales tax on the estimated turnover of gunny bags involved in the total quantity of sugar sold inside U.P. Similar assessments were made under section 9(3) of the Central Sales Tax Act read with section 21 of the U.P. Sales Tax Act, and Central sales tax at the rate of 7 per cent was levied' on the estimated turnover of the gunny bags involved in the sale of sugar outside Utter Pradesh. Similar assessments have been made for the other assessment years both under the U.P. had the Central Sales Tax Acts.
(3.) THE petitioner has challenged these assessments by means of this and the connected writ petitions. Writ Petition No. 2834 of 1967 refers to the assessment year 1961-62 and is directed against the assessment under the U.P. Sales Tax Act and Writ Petition No. 2836 of 1967 is directed against the corresponding assessment for the same year under the Central Sales Tax Act. Similarly the remaining writ petitions relate to the remaining assessment years. The main contention of the petitioner in all these writ petitions is that there has been no sale of gunny bags as such and the levy of tax oh the estimated turnover of gunny bags is accordingly unauthorised and without jurisdiction. Before we proceed to examine this contention on merits, it is necessary to dispose of a preliminary objection raised on behalf of the opposite parties. It is contended that an alternative remedy is provided both in the U.P. and the Central Sales Tax Acts against an erroneous order of assessment. The alternative remedy provided is threefold. First, there is an appeal provided, then a revision and finally there is a reference to the High Court on questions of law. It is alleged that the petitioner has already availed of the alternative remedy and as such he is not entitled to invoke the writ jurisdiction of this Court under Article 226 of the Constitution.;