SEN, J. - (1.) THE short question involved in this writ petition is whether or not the railway freight on the cement sold by the petitioner under the Cement Control order. 1967. should be deducted from its texable turnover for purposes of the Rajasthan Sales Tax Act, 1954 or it should be treated as the part of the sale price and liable to be taxed under the Act.
(2.) THE Commissioner Commercial Taxes, has, in response to a show-cause notice entered a caveat and raised a preliminary objection as to the maintainability of the petition. THE parties were heard both on the objections as well as on the merits at great length. THEy have also filed their written submission. The petitioner is engaged in the business of manufacturing and selling cement, which is a controlled commodity, to its purchasers in Rajasthan as well as out side Rajasthan. The sale of cement is controlled by the Cement Control Order, 1967. According to clause 8 of the Cement Control Order, the price is not to exceed the prescribed price per metric ton "f. O. R. destination". The price is, therefore, a fixed price per metric ton "f. O. R. destination" and the supplier has to bear the cost of the freight. In the invoices issued by the petitioner, the price charged per metric ton is the price "f. O. R. destination" i. e. , inclusive of the freight. The petitioner has afterwards deducted the railway Freight with the words "to be paid by you" i. e. , by the purchaser. The petitioner has collected tax in respect of the amounts of railway freight. In the invoices, at the foot, there appears the printed term: - "deposit towards contingent liability on railway freight to be paid by you". The mere fact that the railway freight has afterwards been deducted and shown payable by the purchaser, not the fact that the tax collected was described as deposit, would not entitle the petitioner to claim deduction of the railway freight from its taxable turnover. During the assessment years 1971-72 and 1972-73, the petitioner, in its returns, showed in its turnover the full sale price as fixed by the Cement Control Order, being the price "f. O. R. destination". The tax which was deposited along with the returns was cot on the gross turnover, but on the turnover arrived at by deducting the amount of railway freight. During the assessment proceedings for the years in question, the Assessing Authority issued usual notice under section 10 2) of the Rajasthan Sales Tax Act, 1954 in Form ST-12. On February 6, 1975, after examining the trading account of the petitioner, the Assessing Authority gave an opportunity to the petitioner to show cause why the amounts of freight as shown by it in its returns should not be treated as part of the sale price of the cement. This was done in accordance with rule 54 of the Rajasthan Sales Tax Rules as well as the principles of natural justice. In response to the notice to show cause, the petitioner, by its letter dated February 20, 1975 as clarified by the subsequent letter dated April 14, 1975, raised a preliminary objection contending that the Assessing Authority had no jurisdiction to levy any tax on the amounts of freight which were claimed as deduction in its returns. By an earlier order dated April 17, 1975, the Assessing Authority held that the question whether or not the petitioner was entitled to deduction of the freight from its gross turnover, would be decided at the time of the passing of the assessment order under section 10 of the Rajasthan Sales Tax Act. Being aggrieved, the peti-tioner filed revisions before the Board of Revenue, The revisions were, however, dismissed as premature by a Single Member of the Board, by his order dated 25th November, 1975, as the assessments were still to be made The petitioner, then, preferred special appeals. In special appeals, a Division Bench of the Board, by its order dated May 21, 1976, directed the Assessing Authority to dispose of the preliminary objection raised by the petitioner as a preliminary point, with a further direction that the petitioner should be given reasonable opportunity to seek its remedy before an appropriate authority in respect of the decision if any, given against it In view of that direction given by the Board, the Assessing Authority had no option but to decide the preliminary objection raised by the petitioner. This it did by its order dated June 17, 1976. The petitioner has straight away filed this writ petition challenging the order of the Assessing Authority insofar as it 'relates' to the taxability of the railway freight under the Rajasthan Sales Tax Act, 1954. Shri S. C. Bhandari, learned counsel for the Commissioner, Commercial Taxes, raised a preliminary objection as to the maintainability of the writ petition. He submits that the writ petition besides being wholly mala fide, was premature at this stage and should not be entertained There was no order of assessment. Nor any notice of demand. He stated before us that the amount of tax involved on the railway freight collected by the petitioner during the years in question amounted to over Rs. 6,00,000/- and the petitioner was in duty bound to credit the same alongwith the returns. It has, however, wrongfully withheld the huge amount and is utilising the same in its business. There was no reason why the Assessing Authority should not be permitted to complete the assessment and raise a demand for the tax which was legitimately due. Even if the point is controversial, it should be left to be determined by the assessing authority The R. S. T. Act provides for a complete machinery by which the relief claimed could be had. The relief as claimed in the writ petition can not be granted, as there was no question of jurisdiction involved. There was no lack of inherent jurisdiction on the part of the Assessing Authority. There is also no error apparent on the face of the record. No writ or direction in the nature of prohibition or certiorari could, therefore, be issued. Learned counsel for the Commissioner, Commercial Taxes, contends that the petitioner cannot by pass the remedy of an appeal to the Deputy Commissioner, of a revision before the Board of Revenue and that of a special appeal before the Board. He contends that the facts have to be found by the taxing authorities in the instant case and the petitioner should, therefore, be left to the normal remedy of appeal and a case stated. There is no reason why the hierarchy of the Tribunals should not be left to determine the question involved in the manner provided, and then to have a case stated by the Board of Revenue to the High Court to have its opinion thereon. Learned counsel for the commissioner, commercial Taxes drew our attention to a recent decision of the Board of Revenue in Associated Cement Companies Ltd. , Lakheri Cement Works vs. C. T. O. Kota Revision No. 1267 of the 1975 decided on April 22, 1976, where under precisely similar set of circumstances, the Board of Revenue has held in view of the Cement Control Order, 1967, which envisages that the price of the cement sold by a manufacturer will be the price "f. O. R. destination" i. e. inclusive of railway freight, that railway freight forms part of the "sale price" as defined in section 2 (h), and the subsequent deduction of the amount of freight from the price with a direction to the buyer to pay freight would not mean that the railway freight was "separately charged" or that it was not liable to be included in the ''sale price" as defined in section 2 (h) of the C. S. T. Act. The Board of Revenue has followed the view taken by the Madhya Pradesh, Patna and Mysore High Courts in Birla Jute Mfg. Co. Ltd. vs. Commissioner of Sales tax, Madhya Pradesh (1), Commissioner of Commercial Taxes vs. Aooka Marreluac Ltd. (2) and The State of Mysore vs. Panvam Cement & M. T. Ltd. (3 ). In our judgment, the writ petition cannot be entertained. It is not the function of the High Court under Article 226 of the Constitution, in taxation matters, to constitute itself into an original authority or an appellate authority to determine the question of taxability which depends upon a precise definition of facts. Here, the assessing authority has come to a particular conclusion. The correctness of that view can be questioned in the manner provided by the Act. In S. T. O. Jodhpur vs. The Ratan G. Nohela (4), their Lordships of the Supreme Court deprecated the practice on the part of the assessees to rush to the High Courts after an assessment order is made, saying that such petitions should not be entertained In the present case; there is no order of assessment. There is no demand raised on the petitioner. The assessing authority had earlier rightly declined to decide the taxability of railway freight as a preliminary point. It was, however, compelled to do so under the directions of the Board of Revenue. Be it so, the assessing authority has still seisin over the matter and the assessment order has yet to he passed. To the same effect is the decision of their Lordships in C. A. Abraham vs. I. T. O. Koliayam (5) that where the Act provided for a complete machinery for assessment of tax and imposition of penalty and for obtaining relief in respect of any improper orders passed by the Income-tax authorities, the assessee could not be permitted to abandon resort to that machinery and to invoke the jurisdiction of the High court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the tribunal. There is no reason why the same principles should not apply to the present case we would for that reason alone, dismiss the petition in limine
(3.) IN that view of ours, no other question arises. We would, indeed, have refrained from expressing any opinion on the merits. Learned counsel for the petitioner, however, pressed the merits of the point in controversy evidently wanting to have a decision thereon. We are, therefore, constrained to deal with them. In support of the petition, Shri M. G. Bhandari, learned counsel for the petitioner, has put forth a three fold contention. In the first place, he contends that the Assessing Authority has acted without Jurisdiction in holding that the railway freight forms part of the "sale price" within the meaning of sec. 2 (b) of the Act, when the petitioner deducted the freight as trade discount, and the railway freight was separately charged. In the second place, he contends that the petitioner has no equally efficacious alternative remedy, as due to the circular dated February 27, 1975, issued by the Commissioner of Sales-tax, the filing of an appeal before the Deputy Commissioner was an empty formality. Thirdly, he contends that no tax was recovered on supplies to the DGSD on the advice of the Ministry of Law & Justice when no tax was leviable. As regards the other consumers, it is said that the amounts of freight are collected as a deposit. There is, in our view, no force in any of these submissions. Much stress was laid by learned counsel for the petitioner on the circular dated 27-2-75 issued by the Commissioner requiring the assessing authorities to assess the tax on the railway freight. It is said that the offending circular in question was nothing but a mandate and the assessing authority had no option but to pass the impugned Order; rejecting the preliminary objection It is further stated that the circular is also directed to the Deputy Commissioner and, therefore, the appeal to him would be an exercise in futility. We are afraid, the learned counsel is not right in is contention. The circular issued by the Commissioner is an innocuous document. It was issued by the Commissioner, Commercial Taxes, directing the assessing authorities to collect sales-tax on the full FOR. destination price and not to allow any deduction on account of "freight to pay". It merely drew the attention of the assessing authorities to the three decisions in question and asked them to impose tax on the freight. The decision in Firm Murlidhar Brijmohan vs. State of Rajasthan (6), Mahadayal Premchand vs. C. T. O, Calcutta (7) are clearly distinguishable. In Mahada-yal Premchand vs. C. T. O. Calcutta (7) their Lordships were considering a case where the assessing authority abdicated his functions and expressly stated that though he was satisfied on the material placed before him that no tax was payable, he was passing the order of assessment under the instructions of his higher authorities. That was a case which turned on its peculiar facts. In Firm Murlidhar Brijmohan vs. State of Rajasthan (6) this court was, no doubt, concerned with a similar circular but at that time, under section 14 (2) of the R. S. T. Act the Commissioner was also a Revisional authority i. e. , he exercised quasi judicial functions. The revisional powers of the Commissioner have since been taken away. He now is only concerned with the administrative control. We fail to appreciate why the Commissioner cannot, in exercise of such administrative powers, issued a circular of this nature drawing the attention of the assessing authorities throughout the State to certain recent decisions. In Delhi Cloth and General Mills Co. Ltd. v Shri R. R. Gupta C. T. O. , Jaipur (8) this Court had before it a similar circular and it was observed that it did not appear, as here, that the Assessing Authority was in manner influenced by it. In appeal their Lordships in Delhi Cloth & General Mills Co. Ltd. vs. R. R. Gupta (9) referred to that circular while affirming the decision. Nothing, therefore, turns on the circular. There was some controversy as to whether Deputy Commissioner to whom the circular was issued was the Deputy Commissioner (Administration), as stated by the learned counsel for the Commissioner, or was the Deputy Commissioner (Appeals) as asserted by learned counsel for the assessee. But we do not think it necessary to enter into that controversy here. ;