The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226, except in exceptional circumstances.

ORDER :

C.PRAVEEN KUMAR, J.

1) The present Writ Petition came to be filed under Article 226 of the Constitution of India, questioning the Assessment Order passed by the 1st Respondent on 04.02.2022 for the tax periods 08/2005 to 07/2009 under Andhra Pradesh Value Added Tax Act, 2005 (‘AP VAT Act, 2005’), as illegal, improper and contrary to law.

2) The facts, which lead to passing of the impugned order, are as under:

(i) The Petitioner herein is a registered dealer under the AP VAT Act, 2005, under the rolls of 1st Respondent, doing business in manufacture and sale of machinery and its parts i.e., food processing equipments mainly for manufacturing of mango fruit pulp.

(ii) The Assessing Authority conducted audit and passed an Assessment Order, dated 14.09.2009, for the above mentioned tax period under AP VAT Act, 2005, imposing tax on Body Beader, Fruit Mills, Tank, Fruit Washer, Tub Washer etc., @ 12.5% by treating the same as unclassified goods falling under V-Schedule. Challenging the said Assessment Order, the Petitioner preferred a statutory appeal under Section 31 of the AP VAT Act, 2005, vide Appeal No. 165/2009-2010 before the Appellate Deputy Commissioner (CT). By an Order, dated 25.08.2010, the said appeal along with other cases were disposed of holding that the goods sold by the Petitioner to the manufacturing and processing units fall under Serial No. 2 to Entry 102 of IV-Schedule to AP VAT Act, 2005, liable to be taxed @ 4%. Accordingly, the said Order of the Assessment Authority was set-aside and the matter was remanded back to the Primary Authority for passing orders afresh. Consequently, the matter was remanded back to the 1st Respondent.

(iii) While things stood thus, the Additional Commissioner (CT) Legal in exercise of suo motu powers under Section 32(2) of AP VAT Act, 2005, revised the Order of the Appellate Authority on 23.04.2012 by setting aside the Order of the Appellate Authority and restoring the Order of the Assessment Officer.

(iv) The said Order came to be challenged by filing a statutory appeal before the AP VAT Appellate Tribunal at Visakhapatnam, vide T.A. No. 423 of 2016, which was disposed of by remanding the matter to the Assessment Authority for passing orders afresh in accordance with law, having regard to the Judgment of the High Court of Andhra Pradesh in M/s. Balaji Flour Mills V. Commercial Tax Officer-II, Chitoor Circle, (2011) 40 VST 150 (AP) within three months from the date of receipt of the order.

(v) It is said that, pursuant to the order passed by the AP VAT Tribunal, on 30.11.2018, the 1st Respondent passed the Order impugned herein on 14.02.2022 reiterating the order passed earlier imposing tax on the goods @ 12.5% by treating the same as unclassified goods falling under residuary Schedule-V. Challenging the same, the present Writ Petition came to be filed mainly on the following grounds:

a) Though the Tribunal directed the primary authority to pass orders within a period of three months from the date of receipt of the order, the 1st Respondent passed the order impugned nearly three years after receipt of the order of the Tribunal, which itself is sufficient to set-aside the order impugned.

b) The Order passed pursuant to the remand by the Tribunal is barred by limitation in view of Subsection 3 or 4 read with Section 21 of the AP VAT Act, 2005;

c) Though the authority superior to Assessing Authority found that the goods do fall under classified items, which according to the Petitioner is binding on the 1st Respondent, still the 1st Respondent reiterated its earlier stand by treating the goods as unclassified imposing tax @ 12.5%;

d) While dealing with sister concern of the Petitioner, the Appellate Authority has held that the goods referred to fall under Entry 102 of Serial No.2 of the IV-Schedule of AP VAT Act, 2005, as such, the said order being final, is binding on the 1st Respondent.

3) In view of the above, the learned Counsel for the Petitioner, Sri. G. Narendra Chetty, submits tha