JAIN, J. - (1.) THESE special appeals have been filed by the Union of India u/s 18 of the Raj. High Court Ordinance, 1949 against the orders dated 6. 1. 93 passed by the learned Single Judge dismissing the writ petitions.
(2.) SINCE all these special appeals involve common question of law and fact, they are being disposed of by this common order. For convenient disposal of all these special appeals, the facts from D. B. Civil Special Appeal No. 33 of 1993 are being taken into consideration which are briefly as follows : - The petitioner appellant Assistant Controller of Stores, Northern Railway, Bikaner is one of the departments of the Northern Railway and a registered dealer under the provision of Raj. Sales Tax Act. The Northern Railway has four other departments having their separate sales tax number. The waste material and scrap of all these Deptts. is kept at the petitioner's place at Bikaner, who is authorised to effect the sale through auction. The petitioner was assessed on 4. 12. 89 for the period 1. 4. 86 to 31. 3. 87 (1986-87) in connection with the sale of waste material and the petitioner paid the concerned amount of tax. The same assessment was reopened u/s. 12 of the Rajasthan Sales Tax Act. The entire tax liability was fastened on the petitioner vide assessment order dt. 29. 7. 91 and it was assessed to the tune of Rs. 36,30,605/- including the penalty and interest. Against this assessment order, the petitioner-appellant preferred an appeal on 6. 9. 91 before the Dy. Commissioner (Appeals)-II, Jaipur and requested that as the liability of other departments has been imposed on it without proper appreciation the appeal (Ex. 2) may be heard without payment of demand and a stay application (Ex. 3) was also moved. The petitioner also moved an application (Ex. 4) for staying the demand created against it before the Addl. Commissioner (Anti Evasion), Commercial Taxes, Rajasthan, Jaipur. The Addl. Commissioner vide his order dt. 14. 11. 91 (Anx. 6) gave two months time to the petitioner for depositing the tax and to furnish relevant proof of certificate by 15. 1. 92. The petitioner sought time vide Ex. 7 on 31. 1. 92 and prayed for staying the demand raised by the C. T. O. The learned Addl. Commissioner (Anti Evasion) vide his order dt. 31. 1. 92 (Anx. 8) stayed recovery of penalty and the amount of tax increased on the basis of the best judgment assessment on furnishing a solvent security to the tune of Rs. 17 lacs, he however did not stay the recovery of the amount of actual tax and interest on that amount which comes to Rs. 1,98,90,225/ -. Aggrieved against the said order, the petitioner assessee filed a writ petition which came to be heard and dismissed by a learned Single Judge of this Court vide his judgment rendered on 6. 1. 93 and hence, this special appeal. Mr. Joshi, learned counsel for the petitioner-appellant has contended that since the appeal filed by the petitioner u/s. 13 of the Rajasthan Sales Tax Act is pending, recovery of tax may be stayed and a direction may be issued to the authorities to decide the appeal at the earliest. In this respect he has placed reliance on the decision rendered in Rajasthan Spinning & Weaving Mills Ltd. Vs. Additional Commissioner reported in (1), M/s. Hindustan Agro Chemical Vs. State & Anr. (2), M/s. Alcobex Metals (P.) Ltd. Vs. Collector, Customs and Central Excise, Jaipur & Ors. (3), Pawan Kumar & Co. Vs. State (4) and Hindustan Sugar Mills Vs. Director of Transport and Ors. (5 ). We have heard learned counsel for the parties and perused the record as well as the case law cited at Bar. It is true that this Court in the aforesaid cases while disposing of the writ petitions on the ground of alternative remedy and in some of the cases filed against interim orders, ordered to decide the appeal within a specified time and in the meantime directed' not to take coercive steps for recovery of the demand till the decision of the appeal. In none of these cases the recovery was stayed after the sales tax has been recovered by the authority or person concerned. In all these cases the dispute was as to whether the liability arises at all. The very determination of the demand and imposition of penalties etc. were disputed by the assessees. In none of these cases the sales tax has already been recovered and thus these cases have no application as to the facts of the present case where the sales tax has already been recovered by the auctioning authority.
(3.) IN the instant case scrap of all the five departments of Northern Railways viz. Dy. Controller of Stores, Jodhpur, Divisional Superintendent, Engg. Deptt. Jodhpur, Deputy Supdtg. Engineer, Bikaner, Civil Engineer (Construction) Bikaner and Assistant Controller of Stores, Northern Railway, Bikaner has been sold through auction by the petitioner for which it was duly authorised purchaser after recovering the price of the scrap of waste material and the amount of sales tax leviable thereon. There is a categorical finding of the C. T. O. that it has collected the sales tax also from all auction purchasers. This fact of collection of sales tax stands established from the findings recorded by the Assessing Authority and that fact stands supported to some extent from Anx. R/l. This being a question of fact it is not proper for us to go into it in this special appeal particularly when an appeal u/s. 13 of the Rajasthan Sales Tax Act has been filed and is pending before the competent authority. Normally one who recovers tax is liable to deposit it. It was contended by Mr. Joshi that this amount of sales tax which was recovered by them has been paid to different assessees. This fact is seriously disputed by Mr. B. C. Mehta. We are not inclined to go into such disputed questions of fact which can safely be agitated before the Appellate Forum. Keeping in view these facts and circumstances when it is established that the sales tax was recovered at the time of auction purchase we are not inclined to grant any indulgence by staying the recovery of tax till the disposal of that appeal. Thus, the order passed by the learned Single Judge calls for no interference. That apart, according to Sec. 5 (G) of the Rajasthan Sales Tax, one who recovers the tax has to pay the tax. Moreso, the appellant has only challenged the assessment order dated 29. 7. 91 but he has not challenged the rectified assessment order passed on his own application on 10. 3. 92 before the learned Single Judge as also before this Court. Under these circumstances, the petitioner is entitled to no relief. No other point has been pressed before us. In the result, these special appeals have no force, so they are hereby dismissed. The impugned order dt. 6. 1. 93 passed by the learned Single Judge is maintained. However, the Dy. Commissioner (Appeals) is directed to decide the appeals of the petitioner as early as possible but not later than one month. . ;