B.N. Mahapatra, J.
1. In the present Writ Petition, the Petitioner has challenged the suo motu Revisional Orders Dated 31st December, 2007 passed by the Assistant Commissioner of Sales Tax (O.P. No. 2) for the periods 2002-03, 2003-04 and 2004-05 (Annexure-6 series) and show cause notice (Annexure-7) issued under Rule 16 (2) of the Central Sales Tax (Orissa) Rules, 1957 (hereinafter referred to as 'the CST (O) Rules') on the ground that the revisional authority has no jurisdiction to exercise its suo motu power of revision and consequently the notice issued under Section 16(2) is not sustainable in law.
2. Bereft of unnecessary details, the facts and circumstances giving rise to the present Writ Petition are that the Petitioner is a company registered under the Companies Act, 1956 having its place of business at IDCO Plot No. 180/184, Sector-B, Industrial Estate, Kalunga, Dist: Sundergarh, Orissa. It carries on business in manufacturing of cast-iron casting like manhole covers, sanitary fittings etc. During the relevant periods the Petitioner sold its manufacturing goods, i.e., cast iron casting to M/s R.B. Agarwala & Co., Kolkata (hereinafter referred to as 'REA'). The RBA after receiving the goods undertook certain processings like fumigation and other tests as were found necessary to export the same out of the territory of India to foreign buyers who had placed orders upon the RBA as merchant exporters. As under Central Excise Act and Rules framed thereunder, for the limited purpose, packing, fumigation and testing amount to manufacture, RBA after exporting such goods to foreign buyers claimed the requisite Cent Vat Credit under Cent Vat Credit Rules, 2004. The regular assessments for the above assessment years were made by the Sales Tax Officer, Rourkela (II) Circle (hereinafter referred to as 'the assessing officer') under Rule 12(4) of the CST (0) Rules, wherein the Petitioner's claim for deduction on account of export under Section 5(3) of the Central Sales Tax Act, 1956 (hereinafter referred to as 'the CST Act') was allowed by the Assessing Officer after examination of the books of account and necessary documents. Mer completion of the regular assessments for the periods mentioned above, the Petitioner received notice in Form-Ill issued under Rule 10 of the CST (O) Rules from the office of Assessing Officer-Opposite Party No. 2 for the above three years. In response to said notice, Learned Counsel for the Petitioner appeared before the Opposite Party No. 2 with the books of account of the Petitioner and also submitted the written notes of argument. After examining the books of account and documents with reference to the allegations made in the A.G. Audit Report, the Assessing Officer-Opposite Party No. 2 rejected the allegations made in A.G. Audit Report and completed the reassessments without raising any demand. Thereafter, the Petitioner received three notices dated 28th July, 2007 from the office of the Assistant Commissioner of Sales Tax, Sundargarh Range Rourkela-Opposite Party No. 3 (hereinafter referred to as 'the revisional authority') for the aforesaid three assessment years. The said notices were issued by the revisional authority under Rule 80 of the OST Rules read with Rule 22 of the CST (O) Rules for revision of the re-assessment orders passed by the Assessing Officer as it appeared to him that allowance of claim of penultimate sales under Section 5(3) of the CST Act by the Assessing Officer was erroneous and prejudicial to the interest of the Revenue. In response to the said notices, the Petitioner submitted detailed written notes of submission on 5th October, 2007 and appeared along with his Advocate before the revisional authority with the relevant details. However, the revisional authority disallowing Petitioner's claim held that the goods sold by the Petitioner to the merchant exporters were different from the goods actually exported by the merchant exporters to the foreign buyers, and hence the Petitioner is not entitled to exemption from payment of Central Sales Tax under Section 5(3) of the CST Act. Accordingly, suo motu revision ended by raising the demands of Rs. 1,13,18,001, Rs. 1,52,98,613 and Rs. 43,08,121 for the years 2002-03, 2003-04 and 2004-05 respectively. Hence, the present Writ Petition. 3. Dr. Debi Pal, Learned Sr. Counsel, appearing on behalf of the Petitioner submitted that the Petitioner during the relevant period manufactured finished goods as per the order received from the merchant exporter and sold those goods to the merchant exporter ill loose condition. The merchant exporter on receipt of the [finished goods undertook certain processings like fumigation and other tests. The process of fumigation (disinfecting) and radiation checking is carried out by the merchant exporter to meet the statutory requirements of the importing countries. After inspection, fumigation and radiation checking, the goods are packed by the merchant exporter in wooden carrots and tied with steel strips. In this way the goods become fit and presentable for sale in the international market. However, the goods supplied, i.e., C.I. Castings (Cast Articles of Iron) by it remain C.I. Castings (Cast Articles of Iron) without any change in character or property after the processings like fumigation, inspection and radiation checking is carried out on the said goods by the merchant exporter and, therefore, the pre-condition under Section 5(3) that the same very goods, i.e., 'those goods' stands fully satisfied. The sale of cast iron castings by the Petitioner/manufacturer to the merchant exporter in the present case precedes the sale or purchase occasioning the export and such last sale or purchase was for the purpose of complying with the agreement or order for or in relation to such export. The Petitioner manufactured those finished goods in terms of the agreement contained in the order placed by the merchant exporter. The goods, which are manufactured by the Petitioner, are the same goods which were exported to the foreign buyers although the nomenclature may be slightly different under the Central Excise Law and commercial parlance. The 'Cast Iron Castings' are classified under the category of 'Cast Articles of Iron' as defined in Chapter Sub-heading number 7325.10 of the First Schedule to the Central Excise Tariff Act, 1985 ('the CETA') on the basis of rules of classification of excisable goods as set out thereunder. Chapter 73 of the CETA deals with 'Articles of Iron or Steel'. Hence to clearly indicate the classification of their product they wrote the name of their product on all excise documents as 'Cast Articles of iron'.
It was further submitted that the merchant exporter had issued required number of Form- H to the Petitioner, which were produced before the Assessing Officer. In the column where the merchant exporter should have filled up the agreement/order number, they have drawn reference to the annexures annexed to the Form-H wherein the necessary details like bill of lading number, date, name of the vessel, destination, foreign buyers' order number and date are clearly mentioned. Form-H and annexures submitted before the Assessing Officer at the time of hearing formed part of the assessment record. Thus, the allegation in the audit report that the Form-H has not been properly filled up is not correct.
It was also argued that under the central excise laws there are generally two types of clearance for excisable goods, i.e., clearance for home consumption and clearance for export. The clearance for export may be with payment of excise duty under claim of rebate (Rule 18 of CER) or may be without payment of duty under bond (Rule 19 of the CER). The above provisions of Rule 19 deal with clearance for export goods without payment of duty and it applies only where the manufacturer is directly engaged in the export of excisable goods. It is the choice of the merchant exporter to purchase the excisable goods without payment of duty under bond or on payment of duty under claim of rebate. A merchant exporter may prefer to purchase excisable goods from the manufacturer on payment of excise duty and then claim rebate of excise duty from the Central Excise authorities on exportation of the goods. In such situations, the goods are cleared by the manufacturer to the merchant exporter as home clearance on payment of duty, which is later claimed by the merchant exporter as rebate. Therefore, drawing a presumption that the goods have been sold by the Petitioner for home consumption and were not made for the purpose of complying with any agreement or order placed by the foreign buyer is wholly based on assumptions and presumptions guided by misconception of law. In the impugned order, the Assessing Officer has entered a clear finding that he has perused the date of foreign buyers order and the date of dispatch of goods as given in the annexures annexed to the form H(B/L, ARE-1, foreign buyers orders etc.), which reveal that the supplies have been made against the pre-existing contracts with the foreign buyers. Therefore, the exercise of jurisdiction under Rule 80 without any cogent reason IS wholly illegal. Dr. Pal further submitted that before the Assessing Officer they demanded cross-examination of the Central Excise Officer(s) of A.G. Audit team, which was not allowed to them. The Assessing Officer also did not provide a copy of the information/document received from the Central Excise Department.
At the time of re-assessment the Assessing Officer after fully considering the Petitioner's submission rejected the audit objections. The Assistant Commissioner in exercise of its suo motu power of revision has relied upon the very same audit objections and revised the reassessment orders. It was further submitted that when an officer adopted one view of the courses permissible in law and it has resulted in loss of revenue, or where two views are possible, the Assessing Officer takes one view with which the Assistant Commissioner does not agree, it cannot be said an erroneous order prejudicial to the interest of the Revenue unless the view taken by the Assessing Officer is unsustainable in law.
In support of his contention; Dr. Pal relied upon the Judgment of the Hon'ble Supreme Court in Malbar Industries & Company Ltd. v. Commissioner of Income Tax (2000) 243 ITR 83 and Judgment of Madras High Court in Commissioner of Income Tax v. MEP Co. Industries Ltd. : [2007]294ITR121(Mad) . The view taken by the Assistant Commissioner in purporting exercise of suo motu power of revision is at the highest an alternative view. Therefore, the Assistant Commissioner has no power of competence or jurisdiction to exercise its suo motu power of revision. The order of the Assistant Commissioner is clearly illegal, invalid and without jurisdiction and in violation of the principles of natural justice and the condition precedent for the assumption of jurisdiction under Section 23(4) read with Rule 80 is clearly violated. Consequently, the notice dated 19.2.2008 issued under Rule 16(2) of the Central Sales Tax Act (Orissa) Rules, 1957 is also illegal, arbitrary and without jurisdiction.
4. Mr. S.P. Dalai, Learned Counsel appearing for the Revenue vehemently argued that since alternative remedy is available to the Petitioner by way of appeal before the Commissioner of Sales Tax against the order passed by the Assistant Commissioner in exercise of power of suo motu revision, the Writ Petition is not entertainable. It was further argued that since the statutory declaration forms have not been properly filled up, the Petitioner is not entitled to get any exemption from payment of tax in terms of Section 5(3) of the Central Sales Tax Act.
5. On the rival contentions, the questions which fall for consideration by this Court are as follows:
1. Whether without exhausting the statutory remedy by way of appeal before the Commissioner of Sales Tax the Petitioner can approach this Court under Article 226 of the Constitution challenging the action of revisional authority who erroneously assumed to have jurisdiction conferred upon it even though it does not possess such jurisdiction?
2. Whether on the basis of self-same audit objections, which have been rejected by the Assessing Officer in the re-assessment proceeding, the Assistant Commissioner of Sales Tax can exercise his jurisdiction under Rule 80 of the Orissa Sales Tax Rules read with Rule 22 of the Central Sales Tax (Orissa) Rules merely because the Assistant Commissioner does not agree with the view taken by the Assessing Officer even though the said view is sustainable in law?
6. So far as the first question is concerned, law is well settled that if a Court or an authority wrongly assumes the existence of a jurisdictional fact, the order passed by such Court or authority can be questioned by a writ of certiorari. The Hon'ble Apex Court in Arun Kumar and Ors. v. Union of India and Ors. (2007) 1 SCC 732 held as follows:
A jurisdictional fact' is a fact which must exist before a Court, tribunal or an authority assumes jurisdiction over a particular matter. A 'jurisdictional fact is open on existence or non-existence of which depends jurisdiction of a Court, a tribunal or an authority. It is the fact upon which an administrative agency's power to act depends. If the jurisdictional fact does not exist, the Court, authority or officer cannot act. If a Court or authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not possess.
The Hon'ble Apex Court in State of H.P. and Ors. v. Gujarat Ambuja Cement Ltd. and Anr. (2005) 142 STC 1, held that the rule relating to the existence of an alternative remedy barring the writ jurisdiction under Article 226 of the Constitution of India is only a rule of self-imposed limitation: it is essentially a rule of policy, convenience and discretion. Despite the existence of an alternative remedy, it is within the discretion of the High Court to grant relief under Article 226. At the same time, though the matter relating to an alternative remedy has nothing to do with the jurisdiction, normally the High Court should not interfere if there is an efficacious alternative remedy. When a party approaches the High Court under Article 226 without availing of the alternative remedy provided, the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. After considering the pros and cons of the case, the High Court may interfere: (a) if it comes to the conclusion that the Petitioner seeks the enforcement of a fundamental right; (b) if there is failure of the principles of natural justice; or (c) the orders or proceedings are wholly without jurisdiction; or (d) the vires of an Act is challenged. In the present case, the Petitioner challenges the jurisdiction of the revisional authority on the ground that on the self-same audit objections which have been rejected by the Assessing Officer in the reassessment proceeding the revisional authority cannot exercise jurisdiction under Rule 80 of the OST Rules read with Rule 22 of CST (O) Rules merely because he does not agree with the view of the Assessing Officer even though the said view is sustainable in law. In view of the above, the Writ Petition is maintainable even without exhaustion of the statutory remedy.
7. To deal with second question, it is necessary to Know what is contemplated in Rule 80 of OST Rules. Rule 80 is quoted below.
80. Revision by the Commissioner suo motu
The Commissioner may on his own motion at any time within three years from the date of passing of any order by the Sales Tax Officer or within two years from the date of passing of any order by the Additional Commissioner, Special Additional Commissioner or Assistant Commissioner, as the case may be, call for records of the proceedings in which such order was passed and if he considers that any order passed therein is erroneous in-so-far-as it is prejudicial to the interest of the revenue he may after giving the dealer an opportunity of being heard and after making or causing to be made such enquiry as he deems necessary revise any such order:
8. A plain reading of Rule 80 of OST Rules makes it amply clear that the pre-requisite for exercising jurisdiction by the revisional authority suo motu is that the order of the Assessing Officer is erroneous insofar as prejudicial to the interest of the Revenue. Thus, while exercising power under Rule 80 of the OST Rules read with Rule 22 of the CST (O) Rules, the revisional authority has to be satisfied of the twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous, and (ii) it is prejudicial to the interest of the Revenue. If one of them is absent, recourse cannot be had to the suo motu revisional power vested in the revisional authority.
In Malbar Industries & Company Ltd. v. Commissioner of Income Tax (2000) 243 ITR 83, while dealing with the suo motu power of the Commissioner of the Income Tax the Hon'ble Apex Court held that a bare reading of Section 263 of the Income Tax Act, 1961, makes it clear that the prerequisite for exercise of jurisdiction by the Commissioner suo motu under it is that the order of the Income-tax Officer is erroneous insofar as it is prejudicial to the interests of the Revenue. The Commissioner has to be satisfied of the twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interest of the Revenue. If one of them is absent -if the order of the Income-tax Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous but is prejudicial to the Revenue, recourse cannot be had to Section 263(1) of the Act. The provision cannot be invoked to correct each and every type of mistake or error committed by the Assessing Officer; it is only when an order is erroneous that the Section will be attracted. An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same category fall orders passed without applying the principles of natural justice or without application of mind. The phrase 'prejudicial to the interests of the Revenue' is not an expression of art and is not defined in the Act. Understood in its ordinary meaning it is of wide import and is not confined to loss of tax. The scheme of the Act is to levy and collect tax in accordance with the provisions of the Act and this task is entrusted to the Revenue. If due to an erroneous order of the Income-tax Officer the Revenue is losing tax lawfully payable by a person, it will certainly be prejudicial to the interests of the Revenue. The phrase 'prejudicial to the interests of the Revenue' has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer, cannot be treated as prejudicial to the interests of the Revenue, for example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue unless the view taken by the Income-tax Officer is unsustainable in law.
A similar view was also taken by the Hon'ble Madras High Court in Commissioner of Income Tax v. Meco Industries Ltd. (2007) 294 ITR 281.
9. The jurisdiction conferred upon the Assistant Commissioner under Rule 80 of OST Rules read with Rule 22 of the CST(O) Rules for exercising suo motu power of revision is not administrative but quasi judicial in nature. Therefore, while exercising such power the Assistant Commissioner must bear an unbiased mind and decide the dispute according to the norms of judicial procedure consistent with the principle of natural justice. He cannot permit his Judgment to be influenced by the materials not disclosed to the assessee nor by dictation of another authority. [(See Sirpur Paper Ltd. v. Commissioner of Wealth Tax : [1970]77ITR6(SC) .
The revisional power conferred by Section 263 is undoubtedly a quasi-judicial power [See CIT v. Kashi Nath & Co. : [1988]170ITR28(All) . Cf Dwarka Nath v. ITO : [1965]57ITR349(SC) ].
The Hon'ble Gauhati High Court in Baijnath Biswanath and Anr. v. State of Assam and Ors. (2003) 133 STC 300 (Gau), held that the power of revision reposed in the Commissioner, is a power of judicial in nature and, therefore, such power is to be exercised lawfully and with due application of mind. The power cannot be exercised mechanically or at the behest of some other authority other than on the own discretion of the assigned officer. The Commissioner, therefore, is not to exercise his discretion on the dictation of some other authority.
10. The instant case is required to be examined in light of the aforesaid settled legal proposition.
11. Admittedly, in the case at hand, the claim of the Petitioner for exemption of tax under Section 5(3) of the CST Act was accepted by the Assessing Officer while completing original assessment under Rule 12(4) of the CST (O) Rules after examining various documents and books of account. Subsequently, the A.G. Audit Party while making audit of the assessment order for the periods in question pointed out the irregularities in allowing exemption Under Section 5(3) of the C.S.T. Act to the Petitioner on the following grounds.
(A) The particulars of purchase order of the foreign buyers have not been filled in proper column of the Form 'H' submitted by the dealer.
(B) Particulars in Form ARE- I furnished by the ultimate exporter illustrate that the goods have not been exported in the same form. As per the declaration in Form 'H', the goods sold by the instant dealer were CAST IRON CASTINGS, but goods exported were CAST ARTICLES OF IRON. Thus, 'Those goods' as specified in Section 5(3) of C.S.T. Act were not exported. Besides, the exported goods have undergone further process of manufacturing since the name of the manufacturer in ARE-I Form goes by the name of the ultimate exporter.
(C) Information made available from the Central Excise Range reveals that the instant manufacturer had diverted its entire product for home consumption. Thus, the sales were not make for the purpose of complying with any agreement or order in relation to export.
12. On the basis of above Audit Report, the Assessing Officer initiated re-assessment proceeding and finally dropped the said proceeding vide its Order Dated 17.2.2007.
13. The Assessing Officer rejected all the allegations made in the A.G. Audit Report in the reassessment proceeding initiated for the year 2002-03 with the following observation/reasons:
After going through the observations of A.G. Audit, the books of a/c of the dealer, materials supplied during assessment and reassessment and the written submission of the advocate of the dealer, I am convinced that the goods dispatched by the dealer under assessment to merchant exporter were exported out of India. I believe so for following reasons.
a) In the form 'H' submitted by the dealer during assessment it has been clearly mentioned by the merchant exporter 'as per annexure' in proper column. During the year 2002-03 he had enclosed Annexure 1A to Annexure 12A duly sealed and signed by him the total of which tally with the value and quantity mentioned in Form 'H'. The annexure has also been tick marked by Audit in token of verification.
b) The dealer has very systematically prepared the Annexures which contain the details of invoice number and date, quantity despatched, value, Bill of lading number and date, Name of the vessel, destination, foreign buyer order number and date. Perusal of the date of order of the foreign buyer and the date of despatch of goods by the instant dealer in each case reveals that there was never prior despatch of goods to merchant exporter. The orders of merchant exporter have also been produced by the dealer for verification.
c) As regard the second allegation I entirely agree with the contention of the advocate of the dealer because cast Iron products and cast articles of Iron are one and the same and not different commercial products perusal of chapter 73 of Central Excise Tariff Act and specifically entry 7325.10 clarifies every doubt.
d) More over the above doubts get clarified after one to one verification of commercial invoice and excise invoice. In each Excise invoice raised by the dealer during the year there is mention of other cast articles of Iron-Code-7325.10 and the corresponding entry in the commercial invoice raised in each case has been cast Iron castings.
e) ARE-I is basically a central excise document and it is not prepared as per sales tax rules. In order to pass on the CEN VAT benefit and since there is no recognition of traders in the central excise Act, the merchant exporter has been referred to as manufacturer in the ARE I.
f) Export Under Section 5(3) of the CST Act and the dealer happens to be ultimate seller the excise authorities have mentioned the movement of goods from Rourkela to Calcutta as 'home consumption'. The Comparison of quantity, item, value etc. mentioned in commercial invoice and excise invoice raised by the instant dealer and those mentioned in ARE-I Clarify the doubts raised by the audit.
g) Further, the Audit have not supplied the copies of their correspondence with central excise Range authorities of Rourkela for perusal and further probe.
In view of the discussions above, I am satisfied that the goods dispatched by the instant dealer for export have actually been exported. The doubts raised by audit are unfounded and uncalled for. So the proceeding is dropped. Enter NIL DEMAND.
Similar reasons have also been assigned by the Assessing Officer in rejecting the allegations made in the A.G. Audit Report for the years 2003-04 and 2004-05.
14. Thereafter, the revisional authority initiated suo motu revision under Rule 80 of the OST Rules read with Rule 22 of the CST (O) Rules and revised the assessment order passed under Rule 10 of the CST (O) Rules by the Assessing Officer by sustaining the objections raised in A.G. Audit Report with the following observations:
Examining the case in detail in the light of re-assessment order, record, documents, irregularities pointed out by the A.G. Audit supra and the written submission of the Ld. Advocate contesting the case it is observed that the particulars in Form ARE-I furnished by the ultimate exporter illustrates that the goods sold by the instant dealer-company to the ultimate exporter were - not exported in the same form. As per declaration in Form-H the goods sold by the instant dealer-co were 'CAST IRON CASTING' but goods exported were 'CAST ARTICLES OF IRON'. Thus 'Those goods' as specified in Section 5(3) of the C.S.T. Act were not exported.
Besides, as per the information available from the Central Excise Range the instant dealer manufacturer had diverted it's entire products for HOME CONSUMPTION. Thus, the sales made by the dealer was not for the purchase of complying with any agreement or order in relation to Export.
Apart, as evident from the Form ARE-I the ultimate Exporter had put the goods in question in the further process of manufacturing of goods for Export as per the order of the foreign buyer.
Thus, in view of the above facts the goods sold by the dealer-Company to the ultimate Exporter were different than the goods actually exported by the ultimate exporter to the foreign buyer. Thus, in other words, the claim of the dealer for sale of goods in question, in course of Export does not qualify for exemption Under Section 5(3) of the C.S.T. Act. Reliance in this score is made in case law Vijay Laxmi Cashew Company and Ors. v. Dy. C.T.O. and Anr. (1996) 100 STC 57 (S.C).
As it appears, while exercising power under Rule 80 of the OST Rules read with Rule 22 of the CST (O) Rules, the revisional authority without independently applying his mind, has mechanically accepted the objections raised by the A.G. Audit Party although in the same Order Dated 17.02.2007 it has been observed that on detailed examination of the cases the Assessing Officer dropped the proceedings accepting the genuineness of the dealer's claim under Section 5(3) of the CST Act. The revisional authority has not assigned any reason as to why the explanations furnished by the Petitioner against each and every allegation which were accepted by the Assessing Officer were not acceptable to it. The revisional authority has not indicated any reason as to why the detailed reasons given by the Assessing Officer to reject the allegations made by the A.G. Audit Party were not sustainable in law. The revisional authority has not pointed out any error from the orders of the assessing officer. The revisional authority has also not made any enquiry as contemplated in Rule 80 before revising the reassessment orders. On the other hand, it appears from the reassessment orders that while accepting explanations of the Petitioner and rejecting the allegations made in the A.G. Audit Report the Assessing Officer has given justifiable reasons.
Further, the revisional authority in his order placed reliance on Vijay Laxmi Cashew Company and Ors. v. Dy. C.T.O. and Anr. : 1996(53)ECC85 without mentioning anything as to how the principle decided in that case is applicable to the case of the Petitioner. The revisional authority has also not discussed in its order various case laws cited by the Petitioner including Steerling Foods v. State of Karnataka : 1986(26)ELT3(SC) , Puri Marine Products v. State of Orissa (1991) 82 STC 396 (Ori). In Steerling Foods (supra), the Hon'ble Apex Court held that by cutting heads and tails, cleaning, deveining and pealing and freezing prawns they do not cease to be prawns and they do not become distinct commodity and hence export of prawns after carrying out these operations will be treated as the same goods and benefit of Section 5(3) would be available. The said decision of the Hon'ble Apex Court is followed by this Court in Puri Marine Products (supra).
Thus, since the revisional authority has mechanically accepted objections of the A.G. Audit Report without application of its mind, order passed in exercise of its suo motu power of revision stood vitiated.
15. In view of the above, the revisional authority cannot exercise its jurisdiction under Rule 80 of the OST Rules read with Rule 22 of the CST (0) Rules on the basis of the self same audit objections which have been rejected by the Assessing Officer in reassessment proceeding merely because the revisional authority does not agree with the view of the Assessing Officer even though the said view is sustainable in law. 16. Accordingly, the Orders Dated 31.12.2007 passed for the years 2002-03, 2003-04 and 2004-05 under Annexure-6 series and the notice dated 19.02.2008 under Annexure-7 are hereby quashed.
The Writ Petition is allowed.
B.S. Chauhan, C.J.
I agree.