ORDER
Tek Chand, J.
1. This is a writ petition under Article 226 read with Article 227 of the Constitution of India which deserves to be allowed. The -petition is for the issuance of a writ of certiorari and mandamus quashing the orders of assessment dated 9th October, 1958, in respect of the assessment year 1957-58 (annexure B), dated 11th February, 1960, in respect of the assessment year 1958-59 (annexure C), dated 4th October, 1962, in respect of the assessment year 1959-60 (annexure D) and dated 25th June, 1964, in respect of the assessment year 1960-61 (annexure E) respectively, declaring that no sales tax is payable under the East Punjab General Sales Tax Act and the Central Sales Tax Act in respect of the sales of medicinal and toilet preparations and directing the respondents to refund the amount of sales tax illegally imposed and recovered from the petitioners. The merits of the writ petition have not been questioned. The writ petition has been made with a view to adopt the arguments in this case which had found favour with a decision of the Single Bench of this Court reported in Sukh Dev Sarup Gupta v. The Punjab State and Ors. 1965 Cur. L. J. 335 which was later on affirmed on Letters Patent Appeal, 1966 Cur. L. J. 572. The facts of that decision and of the instant case are in pari materia. The learned Advocate appearing on behalf of the State has not chosen to advance any argument with a view to contest the prayer on merits. Two preliminary objections were raised, namely, that the principle of res judicata was attracted in this case as the former writ petition filed by the petitioners on the same subject-matter had been dismissed by P. D. Sharma, J., in C.W. No. 2991 of 1965 which was decided on the 18th August, 1966, [1967] 19 S.T.C. 274. In that writ petition, the prayer was for the issuance of a writ of certiorari, mandamus or any other appropriate writ, order or direction, declaring that the amounts of sales tax had been recovered from the petitioners illegally, without authority and jurisdiction and, directing that the amount of sales tax recovered be refunded. In this case, the writ petition contains a prayer specifically made for the quashing of the orders passed by respondent No. 3, the Excise and Taxation Officer, Patiala, in the respective cases. I have been taken through the order of P. D. Sharma, J., in that case and I am satisfied that the decision did not dispose of the petition of writ on merits. The Honourable Judge expressed the view that the facts were disputed about the exact amount of the tax alleged to have been unlawfully recovered from the petitioners as State sales tax and Central sales tax and, therefore, a writ of mandamus for refund of taxes ought not to be allowed. He then observed :
the writ petition fails on this short ground and is hereby dismissed.
2. The prayer for quashing of the impugned orders which had been made in this petition, was not made in the former petition.
3. The second preliminary objection is that the petitioners should have exhausted their remedy by filing appeals under Section 20 and revision under Section 21 of the Punjab General Sales Tax Act. There are four separate assessment orders for the respective years; for the assessment year 1957-58 passed on 9th October, 1958 (annexure B), for the assessment year 1958-59 passed on 11th February, 1960 (annexure C), for the assessment year 1959-60 passed on 4th October, 1962 (annexure D) and for the assessment year 1960-61 passed on 25th June, 1964 (annexure E). Appeals were competent but were not filed. These appeals lay to the Deputy Excise and Taxation Commissioner under Rule 57 of the Punjab General Sales Tax Rules, 1949. Powers of revision are conferred upon the Commissioner. The contention on behalf of the petitioners is that there were departmental instructions, according to which no exemption could be granted to the assessee. This appears to be so and was stated in a copy of the letter No. 1892-STI, dated 29th May, 1961, issued by the office of the Excise and Taxation Commissioner, Patiala (annexure A). The relevant papers of the instructions are reproduced below :-
(1) Under item 37 of Schedule B appended to the Punjab General Sales Tax Act, 1948, all goods on which duty is or may be levied under the Punjab Excise Act of 1914 or the Opium Act, 1878, are exempt from the levy of sales tax. The department's view in regard to the levy of sales tax on preparations containing alcohol has been that as no excise duty is levied on these preparations as such, the sales thereof are leviable to sales tax.
(2) In the case, The Standard Drugs Company, Amritsar v. The State of Punjab [1961] 12 S.T.C. 446 it has been held by the Punjab High Court that excise duty on the spirituous preparations was levied by the State Government under the Punjab Excise Act, 1914, and as such the sales tax on these preparations should not have been levied. This judgment has been produced in the 'Sales Tax Cases.'
(3) With effect from the 1st April, 1957, the date from which the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (Parliament Act No. 16 of 1955), came into force, no excise duty is being levied on the spirituous preparations under the Punjab Excise Act, 1914, but is levied under the aforesaid Central Act and the exemption provided under item 37 of Schedule B is, therefore, not applicable. The sales of these preparations from the 1st April, 1957, onwards are, accordingly, leviable to tax under the Punjab General Sales Tax Act, 1948. So, there should be no doubt in the minds of the Assessing Authorities in so far as the levy of sales tax for the period subsequent to the 1st April, 1957, is concerned. As regards the period prior to this date, the judgment of the High Court is being examined and necessary instructions will be issued in due course.
4. In view of these instructions, it is futile to contend that contrary to specific departmental instructions the appellate authority would have entertained the appeals or revisions, if filed. In this connection my attention has been drawn to a decision of this Court reported in Messrs New Rajasthan Mineral Syndicate, Nizampur v. The State of Punjab and Ors. 1965 P.L.R. 155 where a similar matter came up before D. K. Mahajan, J. The Honourable Judge expressed the view, that where the assessing authority had passed the impugned order after taking the advice from the higher authority, an appeal becomes illusive and no useful purpose would be served by pursuing that remedy. A revision is competent only if the remedy of appeal is exhausted. In such a case, the assessee could challenge the order of assessment under Article 226 of the Constitution. When the stand to be taken in the case of a matter arising in appeal or revision has been predetermined by departmental instructions, no purpose could be served by going through the formality of appeal and revision, the decision of the appellate and revisional authorities being a foregone conclusion in consonance with the departmental instructions. The learned counsel for the State has drawn my attention to Sales Tax Officer, Jodhpur, and Anr. v. Shiv Ratan G. Mohatta A.I.R. 1966 S.C. 142. Before the Supreme Court, in that case, it was urged on behalf of the assessee, that while filing an appeal, they would have had to deposit sales tax. It was held that this was not a good ground for by-passing the remedy provided by the Sales Tax Act. In order to warrant the entertainment of a petition under Article 226,' something more had to be shown, something going to the root of the jurisdiction of the Sales1 Tax Officer, something to show that it would be a case of palpable injustice to the assessee to force him to adopt the remedies provided by the Act. But in that case, as the High Court had chosen to entertain the petition, their Lordships of the Supreme Court expressed their disinclination to dismiss the petition on that ground at that stage. This decision is distinguishable, in so far as the reasons for not resorting to appeal in this case are weighty. Against the face of the instructions, presenting of appeals was futile, but in the case before the Supreme Court, the assessee did not file appeal because he was required to deposit the sales tax first. The considerations in the two cases are not in pan materia. In my view, the second preliminary objection also fails.
5. As already stated, the merits of the petition are not being assailed on behalf of the State. In view of what has been stated above, the writ petition is allowed. Consequently, I quash the orders passed by.the Excise and Taxation Officer, Patiala, respondent No. 3, dated 9th October, 1958, (annexure B), dated 11th February, 1960 (annexure C), dated 4th October, 1962 (annexure D) and dated 25th June, 1964 (annexure E). The sales tax realised for these years were in contravention of law and I direct that they be refunded to the petitioners. The petitioners will be entitled to their costs.