N. N. MATHUR, J. - (1.) THESE three special appeals are directed against the judgment of the learned single Judge dismissing the writ petitions on the ground of availability of alternate remedy and relegating the appellant to a statutory remedy under the Rajasthan Sales Tax Act, 1994. The appeals involve common questions of law and, as such, are disposed of by a common judgment. By three different petitions, for the assessment years 1995-96, 1996-97 and 1997-98, the appellants challenged the authority of the Assistant Commissioner, Special Circle-II, Commercial Taxes Department, Jodhpur, making a demand under section 29 of the Rajasthan Sales Tax Act, 1994, hereinafter referred to as "the RST Act", by treating the inter-State sales of goods effected in terms of section 3(b) and section 6(2) of the Central Sales Tax Act, 1956, hereinafter referred to as "the CST Act" as a local sale and thereby imposing tax at the rate of 4 per cent under the RST Act.
(2.) THE appellant, a public limited company having its registered office at Jodhpur with branches at different places in the State of Rajasthan, is engaged in the business of buying and selling chemicals, namely, methanol, chlorine, caustic soda lye, soda ash, hydrochloric acid, etc. It is averred that the appellant purchases the aforesaid chemicals in the course of inter-State trade from manufacturers/suppliers from Gujarat and effects subsequent inter-State sales to various buyers in the State of Rajasthan including SRF Ltd., Bhiwadi, by transfer of the documents of title to the goods, i.e., by endorsing goods receipts/bilties during their movement from Gujarat to Rajasthan. According to the appellant, these transit sales are duly supported by "C" forms from the purchasing dealers in Rajasthan and also forms E-I from the seller outside Rajasthan from whom the appellant has purchased the goods in the course of inter-State trade on "C" forms after paying 4 per cent CST. In the case of subsequent inter-State sales effected to SRF Ltd., Bhiwadi, the chemicals have been booked with the transporter by the appellant's Gujarat supplier for the destination Bhiwadi for being delivered to SRF Ltd., on the instructions and on account of the appellant. It is asserted by the appellant that in respect of all transactions in question, it is not in dispute that the appellant did not take physicactual delivery of the goods at any time during the course of inter-State movement and that the transporter had given delivery to the ultimate buyers in whose favour goods receipts/bilties were endorsed by the appellant. THE said goods merely passed through the areas where the appellant's branches/head office are located and they were carried to the destination of the subsequent buyers in that very vehicle in which they were brought from Gujarat by the same transporter. THE case of the respondents as set up in the impugned notice is that on account of the entries of the said sales made by the appellant in the daily sales report, preparation of invoices and delivery challans in respect of the said sales, it must be presumed that the appellant took symbolic/notional/constructive delivery of the goods which terminated their inter-State movement and the sales effected thereafter were "intra-State sales" of such goods to the buyers in Rajasthan on which local tax is leviable. Thus, the question raised before the learned single Judge was with respect to the scope and interpretation of section 3(b) and section 6(2) of the CST Act and powers of the assessing authority in that regard. According to the appellant, section 3(b) contemplates inter-State sales effected by transfer of documents of the title to the goods during their movement from one State to another and Explanation I appended thereunder provides that inter-State movement of goods commences from time the goods are handed over by the seller to the carrier or other bailee for transmission to the ex-State destination and such movement continues up to the time delivery of the goods is taken from such carrier or bailee by the purchaser. Subsequent inter-State sales satisfying the pre-conditions of requisite declaration are exempt from tax under section 6(2). THE learned single Judge following his own decision dated August 25, 2000 rendered in B.S.L. Ltd. v. State "S.B. Civil Writ Petition No. 651 of 2000", dismissed all the three petitions on the ground of availability of alternate remedy. THE order dated September 18, 2000 followed in the other two writ petitions, dismissed by orders dated September 20, 2000 and September 25, 2000, reads as follows : "In this case, the petitioner has alternate remedy available. In view of my judgment delivered in the case of B.S.L. Ltd. in S.B. Civil Writ Petition No. 651 of 2000 dated August 25, 2000, the petitioner in this case also will have to be relegated to the alternate remedy as provided by the statute. Reserving the right to pursue the alternate remedy, this petition is rejected." We have perused the judgment of the learned single Judge in B.S.L. Limited's case (supra). It was a case wherein petitioner, M/s. B.S.L. Limited purchased diesel from Indian Oil Corporation and Bharat Petroleum Corporation during the relevant assessment year. A concessional tax and surcharge was paid on it at the rate of 3 per cent instead of 4 per cent, as was leviable and in doing so, the company had misused the S.T. form No. 17. According to the department, this payment of tax at the rate of 3 per cent instead of 4 per cent amounts, in the circumstances, was to evade the tax and hence show cause notice was given to the company as to why it should not be penalised for such misuse and evasion. The learned single Judge after referring number of decisions of the apex Court, held that as a general rule, wherever there is an alternate remedy available, it must be followed. It was further held that there can be a deviation from the general rule only when the well-defined exceptions as enunciated by the Supreme Court of India exist. In the opinion of the learned single Judge, there did not exist any exceptional reason to deviate from the general rule. The learned single Judge without putting the instant writ petitions to the test of exceptions of availing the alternate remedy, dismissed them. The learned single Judge has referred to the decisions of the apex Court in the State of Bombay v. United Motors (India) Ltd. [1953] 4 STC 133; AIR 1953 SC 252, Himmatlal Harilal Mehta v. State of Madhya Pradesh [1954] 5 STC 115; AIR 1954 SC 403, Thansingh Nathmal v. Superintendent of Taxes, Bhubri [1964] 15 STC 468; AIR 1964 SC 1419, Shyam Kishore v. Municipal Corporation of Delhi AIR 1992 SC 2279, Vijay Prakash D. Mehta and Jawahar D. Mehta v. Collector of Customs (Preventive), Bombay AIR 1988 SC 2010, U.P. Financial Corporation v. Naini Oxygen and Acetylene Gas Ltd. [1995] 82 Comp Cas 671; (1995) 2 SCC 754, U.P. Jal Nigam v. Nareshwar Sahai Mathur (1995) 1 SCC 21, State of Himachal Pradesh v. Raja Mahendra Pal AIR 1999 SC 1786, Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 53 STC 315; [1983] 142 ITR 663, AIR 1983 SC 603, Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. [1985] 154 ITR 172; [1985] 58 Comp Cas 145; AIR 1985 SC 330, Ramniranjan Kedia v. Income-tax Officer, "A" Ward, Udaipur [1958] 33 ITR 812 (Raj); AIR 1957 Raj 210, Bhanwarlal Binjara v. Assistant Commercial Taxes Officer, Jodhpur 1976 WLN (UC) 459, Kota Box Manufacturing Co. v. State of Rajasthan [1983] 54 STC 284 (Raj), Lodha Fabrics v. State of Rajasthan [1988] 68 STC 145 (Raj), Gopi Chand Teli v. State of Rajasthan (1995) 2 WLC 1 and Laxman Singh Verma v. State of Rajasthan (2000) 1 RLR 137. Dealing with the question of alternate remedy, Mr. P. Chidambaram, Senior Advocate, has referred to a recent Division Bench judgment of this Court dated 29th May, 2002 rendered in Rajasthan Textile Mills Association v. Director-General of Anti Dumping (D.B. Civil Writ Petition No. 4629/2001), to which one of us was a party (Mathur, J.), wherein after referring to various decisions of the apex Court, viz., Bengal Immunity Company Limited v. State of Bihar [1955] 6 STC 446; AIR 1955 SC 661, Calcutta Discount Co. Ltd. v. Income-tax Officer [1961] 41 ITR 191; AIR 1961 SC 372, Raja Anand Brahma Shah v. State of Uttar Pradesh AIR 1967 SC 1081, Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu (1991) Supp 2 SCC 228, Whirlpool Corporation v. Registrar of Trade Marks (1998) 7 JT SC 243; AIR 1999 SC 22, Rohtas Industries Ltd. v. S. D. Agarwal AIR 1969 SC 707 and Barium Chemicals Ltd. v. Company Law Board [1966] 36 Comp Cas 639 (SC); AIR 1967 SC 295, the court held that the High Court has power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction more particularly in a case where such an action is likely to subject a person to lengthy proceedings and unnecessary harassment. Thus, the alternate remedy has been consistently held by the courts not to operate as a complete bar for exercise of powers under article 226 of the Constitution of India. The High Court having regard to the facts of the case, has discretion to entertain or not to entertain a petition. In spite of existence of alternate remedy, the High Court has power to entertain a petition under article 226 of the Constitution of India where (i) there is a threat by the State to realise without authority of law tax from a citizen by using coercive machinery of an impugned Act infringing the fundamental rights guaranteed to him under article 19(1)(g) of the Constitution, reference be made to Himmatlal Harilal Mehta v. State of Madhya Pradesh [1954] 5 STC 115 (SC); AIR 1954 SC 403, Bengal Immunity Co. Ltd. v. State of Bihar [1955] 6 STC 446 (SC); AIR 1955 SC 661, State of Bombay v. United Motors (India) Ltd. [1953] 4 STC 133 (SC); AIR 1953 SC 252 and Tata Iron and Steel Co. Ltd. v. S. R. Sarkar [1960] 11 STC 655 (SC); AIR 1961 SC 65; (ii) the action of the executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, reference be made to Calcutta Discount Co. Limited v. Income-tax Officer [1961] 41 ITR 191 (SC); AIR 1961 SC 372; (iii) the authority had no jurisdiction or had purported to usurp jurisdiction without any legal foundation, reference be made to Whirlpool Corporation v. Registrar of Trade Marks AIR 1999 SC 22; (iv) the constitutional validity of any statute is under challenge; (v) the vindication of public right; (vi) prevention of injury to public at large; (vii) the act is arbitrary or without sanction of law, reference be made to Tata Engineering and Locomotive Company Ltd. v. Assistant Commissioner of Commercial Taxes [1967] 19 STC 520 (SC); and (viii) the petition involves interpretation of constitutional provision and the taxability of the transaction in respect of a tax has been assessed, the reference be made to Paradip Port Trust v. Sales Tax Officer [1999] 114 STC 178 (SC); (1998) 4 SCC page 90. According to the appellant, the instant case clearly falls within the well-settled exceptions with the rule regarding exhaustion of alternate remedy. According to the appellant, the entry of sales in question fully satisfies the conditions of section 6(2) and section 3(b) of the CST Act and are duly supported by form "C" and form E-I on sale of goods effected in the course of inter-State movement, as such, the assessing authority by refusing exemption has usurped the jurisdiction under the RST Act. All the sales in question are governed by the CST Act and are beyond the scope of the RST Act. The attempt to treat the subject sale as a local sale and thereby levy of Rajasthan sales tax is in violation of and beyond the constitutional mandate contained in articles 19(1)(g), 269 and 286 of the Constitution of India. On the other hand, it is submitted by the learned counsel for the respondents that the transaction of sale of chemicals as inter-State sale in terms of section 6(2) read with section 3(b) of the CST Act by way of transfer of documents of title to the goods, may not be treated as an inter-State sale. As a matter of fact, there is a symbolic/constructive/notional delivery taken by the appellant first at its branch. The entries in the books are made by the appellant in the stock registers, invoices are raised and fresh delivery challans are being prepared. Thus, it is not a case of inter-State movement but clearly a case of intra-State movement, inasmuch as the movement of the goods from Gujarat to Rajasthan comes to an end, when it is delivered at the branch office. According to the learned counsel, it is a disputed question of fact, which cannot be gone into in the writ jurisdiction.
(3.) IN order to examine whether a case falls in any of the exceptional categories to by-pass the alternate remedy, an apparent error shown on the face of the record is required to be seen. To appreciate the controversy involved, it is necessary to acquaint with the relevant legislative provisions. By virtue of entry 92A of List I of the Seventh Schedule appended to the Constitution, the Parliament has exclusive power to make laws with respect to "tax on sale or purchase of goods other than newspapers". The entry reads as follows : "92-A. Taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce." It is well-settled that if the operation of an act of Legislature extends beyond the boundaries of the State, the law will be ultra vires under article 245 in the absence of territorial nexus. The taxation by the State on sale or purchase, which takes place in the course of import outside the State or in the course of import of goods into or export of goods out of the territory of India is forbidden by article 286 of the Constitution of India. The real purpose of article 286(1) is to prevent imposition of unduly heavy burden upon the consumers by multiple taxation of a single transaction of sale. Article 286 reads as follows : "286. (1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place - (a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of the territory of India. (2) Parliament may by law formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in clause (1). (3) Any law of a State shall, in so far as it imposes, or authorises the imposition of, - (a) a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-State trade or commerce; or (b) a tax on the sale or purchase of goods, being a tax of the nature referred to in sub-clause (b), sub-clause (c) or sub-clause (d) of clause (29-A) of article 366, be subject to such restrictions and conditions in regard to the system of levy, rates and other incidents of the tax as Parliament may by law specify." Parliament enacted the Central Sales Tax Act, 1956 to formulate principles for determining when a sale or purchase of goods takes place in the course of inter-State sale or commerce or outside a State or in the distribution of taxes on sale of goods in the course of inter-State trade or commerce and to declare certain goods to be of subject importance in inter-State trade or commerce and specify the restrictions and conditions to which State laws imposing tax on sale or purchase of goods of special importance. Once a sale is prima facie found to be an inter-State sale, the tax shall be collected in the State from which the movement of the goods commenced in view of section 9(1) of the CST Act and none other. Thus, in the case of an inter-State sale, any act to realise tax from a citizen under the RST Act, will be ultra vires being in violation of the fundamental rights guaranteed under article 19(1)(g) of the Constitution. A citizen aggrieved will have a right to seek relief by a petition under article 226 of the Constitution of India. In the instant case, the learned single Judge dismissed the writ petition even without looking into the facts of the case and appreciating the contentions, which prima facie indicates that all subsequent sales effected by the appellants during the course of inter-State movement of the said goods are exempt in terms of section 3(b) and section 6(2) of the CST Act. Such sale is governed by the CST Act and are beyond the scope of RST Act. Thus, the writ petition involved an arguable question as to whether there is a patent lack of authority to impose RST on the sales by treating them as local sales ? In our view, the learned single Judge was not justified in dismissing the writ petition on the ground of availability of alternate remedy. ;