JUDGMENT
Thanikkachalam, J.
1. One Mr. S. R. Asaithambi, proprietor, M/s. Gem Granites is the petitioner herein. This writ petition was filed to issue a writ of declaration, declaring that section 2(n), section 2(g) and section 2(j) and other provisions of the Tamil nadu General Sales Tax Act and Rules are unconstitutional, invalid and illegal in so far as the said provisions are deemed to provide for and include levy of sales tax in respect of polishing charges, dressing charges, handling charges and transport charges, and therefore liable to be struck down.
2. According to the petitioner, the charges received for polishing, dressing, handling and transport were in the nature of service charges and not consideration for transfer of property or sale as per section 2(n) of the Tamil Nadu General Sales Tax Act. The charges received for service charges were not includible as sale consideration, since they represented charges for pure labour. It was submitted that the entirety of the transaction and contracts between the petitioner and the exporters represented contract work and labour and hence the charges for what is admittedly service charges did not represent sales or sale proceeds and hence not taxable. The proceedings of the third respondent, dated October 10, 1983 are without jurisdiction and beyond limitation. According to the petitioner, he is not having any adequate alternative remedy. Hence he came forward with the present writ petition.
3. The power of State Legislature to levy taxes on sales or purchases of goods is specified by entry 54 of List II to the Seventh Schedule to the Constitution of India and the said power is not enlarged by the Forty-sixth Amendment. Section 2(n), section 2(g), section 2(j) and section 2(r) as they stood before the Constitution (Forty-sixth Amendment) Act, 1982 and other provisions of the Tamil Nadu General Sales Tax Act would be unconstitutional, invalid, illegal and ultra vires the powers of the State Legislature, in entry 54 of List II of the Seventh Schedule to the Constitution of India, if the said provisions are deemed to include and provide for levy of sales tax in respect of polishing charges, handling charges and transport charges and therefore the said provisions are liable to be struck down as unconstitutional. The decision in (Dhulabhai v. State of Madhya Pradesh) is an authority for the view that challenge to the provisions of the particular Act as ultra vires cannot be brought before the Tribunal constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunal. It was, therefore, pleaded that a writ of declaration may be issued, declaring section 2(n), section 2(g), section 2(j) and other provisions of the Act and Rules are unconstitutional and illegal and therefore invalid in so far as the said provisions are deemed to provide for and include levy of sales tax in respect of polishing charges, dressing charges, handling charges and transport charges.
4. The department filed a counter, stating as under :
The petitioner is an assessee carrying on business in granite stones. In respect of assessment years 1975-76 and 1976-77, the assessing authority originally exempted the turnover relating to handling, dressing, polishing and transport charges. The assessments were reopened by the Deputy Commissioner by exercising his suo motu power under section 32 of the Tamil Nadu General Sales Tax Act. The exemption originally granted with regard to polishing, handling, dressing and transport charges were withdrawn and they were considered as turnovers includible in the sale price. As against the order passed by the Deputy Commissioner under section 32 of the Act, the assessee preferred appeals before the Sales Tax Appellate Tribunal. The Appellate Tribunal, by its order, dated December 11, 1990, dismissed that appeals filed by the assessee. As against the order passed by the Tribunal, the assessee preferred revision before the High Court. It is submitted that even prior to the amendment as well as after the amendment, all charges collected as pre-sale charges and those which were not separately charged are liable for assessment. It was further submitted that inasmuch as provisions were made under the Act to challenge the order passed by the assessing officer as well as the Deputy Commissioner it is not correct on the part of the assessee to file a writ petition to declare the abovesaid provisions as unconstitutional. The petitioner must produce evidence before the authority below in order to obtain exemption as provided under the abovesaid provisions. When the assessee was unable to substantiate the exemption claimed by him, it cannot be said that the provisions of law are illegal and unconstitutional. Under such circumstances, it was pleaded that the writ petition is not maintainable.
5. We have heard the learned counsel appearing for the assessee/petitioner as well as the learned Additional Government Pleader (Taxes). The arguments advanced by the learned counsel appearing for the assessee are almost similar to the arguments advanced in the Tax Case Revisions Nos. 1041 and 1042 of 1993, against the order passed by the Deputy Commissioner in the assessment years 1975-76 and 1976-77. The said tax revision cases are disposed of today by a separate order [Reported as S.R. Asaithambi v. State of Tamil Nadu [1996] 103 STC 277 (Mad.)], dismissing the tax revision cases. The assessee submitted to the jurisdiction of the statutory authorities, and thereafter it is for the assessee to establish his case for obtaining exemption under the provisions of the Act. If on facts the assessee was unable to establish his case for exemption, immediately he cannot pursue his remedy under the writ jurisdiction to declare the provisions of law itself as unconstitutional. The provisions were enacted by the State Legislature under its legislative power. Therefore, it cannot be said that section 2(n), 2(g) and 2(j) are unconstitutional. As per the above provisions of law even prior to the amendment as well as after the amendment, all charges collected as pre-sale charges and those which were not separately charged for are liable for assessment. This question has got to be decided on the basis of the facts available in each case. In the present case, the assessee was unable to produce evidence for claiming exemption as prayed for in the assessment proceedings. Inasmuch as the legislative competence to enact the abovesaid provisions was not challenged and inasmuch as it is not shown under what article of the Constitution of India, the abovesaid provisions are to be held as ultra vires, the writ petition is not maintainable. Accordingly, the petitioner has not made out a ground to declare section 2(n), section 2(g) and section 2(j) as unconstitutional. In that view of the matter, this writ petition is dismissed. No costs.
W.M.P. No. 23131 of 1991 :
6. In view of the dismissal of the writ petition itself today, the interim injunction granted on November 1, 1991 in the above W.M.P., is vacated and this W.M.P., is also dismissed.
7. Writ petition dismissed.