JUDGMENT R.K. Agrawal, J.
1. By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, M/s Sareen Sports Industries, seek the following reliefs:
i) issue a writ, order or direction in the nature of certiorari quashing the provisional assessment notices dated 21,8.2006 issued by the Deputy Commissioner (Assessment) - VI, Trade Tax, Meerut, respondent No. l, for the months of April, May, June and July, 2006 for the assessment year 2006-07 (Annexure Nos. 13,14,15 and 16 respectively to the writ petition);
ii) issue a writ, order or direction in the nature of prohibition restraining the respondents not to proceed with the provisional assessment proceeding in pursuance of the provisional assessment notices dated 21.8.2006 issued by the respondent No. 1 for the months of April, May, June and July, 2006 for the assessment year 2006-07;
iii) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
iv) award cost of the writ petition to the petitioner.
2. Briefly stated, the facts giving rise to the present petition are as follow:
According to the petitioner, it is a partnership firm duly registered as a dealer under the provision of the U.P. Trade Tax Act, 1948 (hereinafter referred to as "the U.P. Act") and the Central Sales Tax Act, 1956 (hereinafter referred to as "the Central Act"). It is engaged in the business of manufacture and sale of cricket bats in the brand name of "SS", which it also exports. For the manufacture of cricket bats, it imports English willow cleft from G.R. Green "Willow Specialist", Little Springs Cottage, Lower Ufford, Wood Bridge, Suffolk I.P. 136 DZ England and also from M/s J.S.Wright & Sons Limited, Borehm Road, Great Leigh Chensford, Essey England. The English willow cleft imported by the petitioner from the United Kingdom is meant for manufacturing cricket bats only. According to the petitioner, for the assessment year 2003-04, the Deputy Commissioner (Assessment) - VI, Trade Tax, Meerut, respondent No. 1, initiated provisional assessment proceedings against the petitioner for the months of April to September, 2003 on the ground that the willow cleft imported by the petitioner was covered by the notification No. 2490 dated 16.5.2003 and, therefore, the petitioner was liable to pay entry tax under the provisions of the U.P. Tax on Entry of Goods Act, on the import of the willow cleft. The respondent No. 1 passed ex parte assessment orders which was challenged in appeal before the Joint Commissioner (Appeals) - II, Trade Tax, Meerut who, vide order dated 24.12.2003, set aside the assessment order and remanded the matter to the respondent No. l for passing the assessment order afresh after making the enquiry on certain points. Pursuant to the order of remand, the respondent No. l passed fresh provisional assessment order which order was quashed by the Joint Commissioner (Appeals) - II, Trade Tax, Meerut, Vide order dated 11.3.2005, on the ground that the requisite enquiry as directed in its earlier order had not been done and as the assessment year was over, the respondent No. l would make a full enquiry in the matter before passing regular assessment order. Regular assessment proceeding for the assessment year 2003-04 were initiated and vide order dated 6.3.2006, the respondent No. 1 had held that the willow cleft imported by the petitioner fell within the category of timber/wood and, therefore, entry tax is leviable (a). 4% on such import. The petitioner preferred an appeal against the order dated 6.3.2006 before the Joint Commissioner (Appeals) - II, Trade Tax, Meerut, which is still pending. The respondent No. 1 did not take any proceeding for making provisional assessment for the various months of the assessment years 2004-05 and 2005-06. However, vide notices dated 21.8.2006, he has initiated proceeding for making provisional assessment for the months of April, May, June and July, 2006 in respect of the assessment year 2006-07 on the ground that the petitioner has not deposited entry tax on the import of the willow cleft which is taxable under the notification No. 2490 dated 16.5.2003. The notices dated 21.8.2006 are under challenge in the present writ petition on the ground that the willow cleft which is being imported by the petitioner is a timber product and not timber or wood and, therefore, no entry tax is payable under the notification No. 2490 dated 16.5.2003. In common parlance as also in trade, the said goods is not treated as timber or wood and instead it is being treated as timber product. It cannot be used for any other purpose except for manufacturing of cricket bats and, thus, the notification dated 16.5.2003 is not applicable.
3. We have heard Sri Rakesh Ranjan Agrawal, learned Counsel for the petitioner, and Sri M.R. Jaiswal, learned Standing Counsel for the respondents on the question of admission of the writ petition.
4. Sri Agrawal, learned Counsel for the petitioner, invited the attention of the Court to the averments made in paragraphs 9 to 18 of the writ petition which detail the process of manufacture of English willow cleft. According to him, from the literature which has been filed as Annexures 5 and 6 to the writ petition, it is absolutely clear that each length or roll of tree from which the willow cleft is manufactured, is divided upto the required size hopefully obtaining an optimum number of pieces which is then shaped to the rough shape of a cricket bat blade. The correct side of the cleft is chosen as the face which will become the face of the finished bat. The blade is thereafter waxed on both the ends to prevent splitting and then air dried to the required moisture content. It is graded into various categories varying from wood suitable for the cheapest boy's bat to that for the finest players who have obtained test match or one day international match status. Thereafter, the blades are dried and carefully dispatched by the manufacturer to various customers. It is, therefore, a timber product and not timber. Even under the assessment made for the assessment year 2003-04 under the U.P. Act, the respondent No. l has treated the sale of bats as sport goods taxable @ 2% and not as timber. He further submitted that in the appeal filed by the petitioner against the provisional assessment order for the months of April, 2003 to September, 2003 passed by the respondent No. l, the Joint Commissioner (Appeals), Trade Tax, Meerut, vide order dated 24.12.2003, had directed the Assessing Authority to make enquiry on the business premises of the petitioner where it makes English willow cleft after making specific enquiry about the willow cleft imported from the United Kingdom and a finding has been recorded by the said appellate authority that it cannot be consumed for the manufacturing of furniture except for cricket bat and it is, therefore, timber product. According to him, in view of the specific finding recorded by the said appellate authority, it is not open to the respondent No. l to treat the English willow cleft imported by the petitioner as timber for the purposes of levy of entry tax. He, therefore, submitted that the notices dated 21.8.2006 issued by the respondent No. l proposing provisional assessment for the months of April, 2006 to July, 2006 and seeking to impose entry tax on the import of the English willow cleft under the heading timber is wholly illegal and without the authority of law.
5. Sri M.R. Jaiswal, learned Standing Counsel, on the other hand, submitted that only notices for making provisional assessment has been issued by the respondent No. l and it will be open to the petitioner to show before the said respondent as to under what entry the aforesaid goods would fall for the purposes of levy of entry tax. According to him, this Court should decline to exercise its jurisdiction under Article 226 of the Constitution of India in such a situation. He has relied upon a decision of the Apex Court in State of U.P. v. Anil Kumar Ramesh Chandra Glass Works and Anr. (2005) 11 SCC 451.
6. In reply, Sri Agrawal submitted that the question of liability to entry tax on English willow cleft imported by the petitioner would arise year after year and it does not involve any disputed question of fact and this Court should, therefore, determine the controversy once for all. According to him, in the aforesaid facts and circumstances of the case, the writ petition under Article 226 of the Constitution of India is the only appropriate remedy.
7. We have given our anxious consideration to the various pleas raised by the learned Counsel for the parties.
8. It is not disputed that the petitioner is importing the English willow cleft from the United Kingdom. After it is imported, it manufactures bats which is a finished product. The question as to whether the English willow cleft imported by the petitioner falls under the entry "Timber" under the notification No. 2490 dated 9.5.2003 or not, is a question to be decided on the basis of the evidence produced by the petitioner by the Deputy Commissioner (Assessment) - VI, Trade Tax, Meerut. in the course of the proceeding initiated pursuant to the notices dated 21.8.2006. The learned Counsel for the petitioner is not right in his submission that a finding has been record by the Joint Commissioner (Appeals), Trade Tax, Meerut, in' the order dated 24.12.2003/11.3.2005 that the English willow cleft imported by the petitioner is a timber product. Had such a finding been recorded, there would have been no occasion for the said appellate authority to quash the provisional assessment proceeding which was completed after the close of the assessment year, with a direction to the respondent No. 1 to make full enquiry regarding the nature and use of the product while making the regular assessment.
9. The Apex Court in the case of State of U.P. v. Anil Kumar Ramesh Chandra Glass Works and Anr. (2005) 11 SCC 451, has held as follows:
...this Court had repeatedly held that Article 226 should not be permitted to be invoked in order to challenge show cause notices unless accepting the fact in the show cause notices to be correct, either no offence is disclosed or the show cause notices are ex facie without jurisdiction.
10. The Apex Court in the case of Standard Chartered Bank and Ors. v. Directorate of Enforcement and Ors. , has held that -
It is settled by the decisions of this Court that a writ of prohibition will issue to prevent a Tribunal or Authority from proceeding further when the Authority proceeds to act without or in excess of jurisdiction; proceeds to act in violation of the rules of natural justice; or proceeds to act under a law which is itself ultra vires or unconstitutional. Since the basis of the claim for the relief is found not to exist, the High Court rightly refused the prayer for the issue of a writ of prohibition restraining the Authorities from continuing the proceedings pursuant to the notices issued. As indicated by this Court in State of Uttar Pradesh v. Brahm Datt Sharma (1987) 2 SCC 179 when a show cause notice is issued under statutory provision calling upon the person concerned to show cause, ordinarily that person must place his case before the Authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. On the facts of this case, it cannot be said that these notices are palpably without authority of law. In that situation, the appellants cannot successfully challenge the refusal by the High Court of the writs of prohibition prayed for by them.
11. The Apex Court in the case of Commissioner of Customs, Visakhapatnam and Ors. v. Jaya Satya Marine Exports (P) Ltd. and Ors. , has held that the High Court should not have entertained the writ petition and should have relegated the writ petitioners to the alternative remedy. In the aforesaid case, the question was whether the shrimps and prawns were covered by the word "fish" under item No. 7 of the Schedule under the Agricultural produce Cess Act, 1940 which levied cess at the rate of one and half per cent ad valorem on all articles included in the Schedule, which were exported from India.
12. Applying the principles laid down by the Apex Court in the aforesaid case to the facts of the present case, we find that the jurisdiction of the respondent No. 2 to make provisional assessment has not been challenged nor there is any challenge regarding vires of the provisions of the U.P.Tax on Entry of Goods Act or the notification issued thereunder. The question as to whether a particular commodity falls under the one entry or the other entry, is to be decided by the -Assessing Authority.
13. We also find that in respect of the assessment made for the assessment year 2003-04 the question as to whether the English willow cleft falls under the category of timber or is a timber product, is already subject matter of appeal preferred by the petitioner and we, therefore, do not want to pre-empt its decision.
14. The petitioner would have ample opportunity to represent its case before the respondent No. 1 and place all material and evidence in support of its claim before the said authority.
15. In view of the foregoing discussions, we decline to entertain the present writ petition which is hereby dismissed in limine.