JAIN, J. - (1.) SINCE all these writ petitions raise a common question of law and fact, they are being disposed of by this common order.
(2.) BY these writ petitions, the petitioners seek to quash the judgment of the Rajasthan Sales Tax Tribunal, Ajmer dt. 21. 9. 1992 and pray that the assessment orders Anxs. 1 & 2 and the demand notices Anx. 3 & 4 may kindly be declared non-est and void. For convenient disposal of these writ petitions, the facts of S. B. C. Writ petition No. 1495/94 are taken into consideration. Briefly stated the facts of the case as alleged by the petitioner are that the petitioner Dinesh Kumar Nagpal who is the Director of M/s. Nagpal Agro System Pvt. Ltd. , Delhi is carrying on the business of pesticides and seeds of cereals and pulses at Sri Ganganagar and the firm is registered under the provisions of the Rajasthan Sales Tax Act having registration certificate no. 1508/43. The petitioner has alleged that he sold Sorghum Sudan Grass properly known Jowar Seeds worth Rs. 1,72,587. 85 during the year 1990-91 and worth Rs. 2,43,900. 00 during the year 1991-92 and collected tax @ 2. 5% on these sales. It is alleged that the respondent no. 2 had assessed the tax @ 10% on the sales of Jowar seeds following the judgment of the Rajasthan Sales Tax Tribunal, Ajmer dt. 21. 9. 92 rendered in C. T. O. Vs. M/s Brijmohan Vedprakash, Sri Ganganagar, vide assessment orders Amxs. 1 & 2 for the year 1990-91 and 1991-92 respectively and also issued demand notices Anxs. 3 & 4. Being aggrieved with the assessment orders and demand notices issued by the respondents, the petitioner has filed this writ petition. This writ petition has been filed on 21. 3. 1994. On 24. 3. 94, while issuing notice, this Court stayed further proceedings in pursuance of demand notices. In pursuance to the notice, the respondents have filed reply on 7. 12. 1994. Mr. Garg learned counsel for the petitioners has contended that the Jowar covers the edible as well as non-edible varities of Jowar and, therefore, Jowar seeds sold by the petitioners are taxable at the rate of 2. 5% and not @ 10%. He has contended that as per the Circular dt. 2. 12. 1989 issued by the Commissioner, Commercial Taxes, Rajasthan, the Jowar seeds are taxable at the same rate of tax as applicable to Jowar cereals i. e. 2. 5%. He has further contended that the assessing authorities cannot depart from the well established practice of assessing the said Jowar at 2. 5% and not in the residuary entry, under the principle of "contemporanea expositio", therefore, the order of the Tribunal deserves to be set aside. He has relied on M/s Bharat Forge & Press Ind. Pvt. Ltd. Vs. Collector & Central Excise (1), Chiranjeet Lal Anand Vs. State of Assam (2) Delhi Cloth and General Mills Co. Ltd. Vs. State of Raj. (3), and (1988) 70 STC-97 (SC) So far as the principle laid down in above decisions is concerned, Mr. Mehta has not disputed the same. He has contended that the petitioner has not sold the Jowar seeds or certified seeds but the petitioner has effected the sale of Hybrid Seeds i. e. Sorgum Sudan Grass which does not fall under Entry No. 5 of Government Notification 4 (5) FD/gr. IV/88-13 dt. 8. 3. 88 or under Entry No. 6 of Government Notification No. F 4 (37)FD/gr. IV/90-15 dated 27. 6. 90. He has also contended that the said Sorgum Sudan Grass produced is neither Jowar/milo nor its form and the said Grass is a different kind of seeds. He has further contended that the judgment dt. 21. 9. 1992 of the learned Tribunal given in the case of C. T. O. Vs. Brij Mohan Vedprakash is legal and perfect which has been passed keeping in view of the common use or common parlance of the said commodity.
(3.) I have heard learned counsel for the parties and perused the material on record as well as the case law cited at Bar. So far as the maintainability of the writ petitions is concerned, the petitioners have directly approached this Court against the assessment orders & demand notices and better course was to file appeal but in the facts and circumstances of the given case when the Tribunal has already taken a view in identical matter, the writ petition cannot be thrown out on the sole ground of availability of alternative remedy, which has not been disputed by Mr. Mehta also. Therefore, I proceed to examine the merits of the case. The relevant notifications dl. 23. 3. 89 & 27. 6. 90 read as under: "5 Bazra, Barley, Jowar, or Milo, Maize ragi kadon, kulki, and moth in all their form including atta (flour), Dal and bran thereof but excluding cornflakes. . . . . (rate of tax ). . . 2. 5%. " "6. Moth and its dal, bazra, barley, jowar or milo and maize including atta (flour) dal, bran thereof but excluding cornflakes. . . (rate of tax ). . 2. 5%" The question which arises for determination in these cases is as to whether 'sorgum Sudan Grass' is taxable at the rale of 2. 5% under the entry No. 6 in the Notification dt. 23. 3. 89 and 27. 6. 90being Jowar as alleged by the petitioner or the same falls under the residuary entry as claimed by the Department to make the petitioners liable to pay sales tax at general rate of 10%. ;