Where a special statute creates a liability not existing at common law and at the same time gives a special and particular remedy for enforcing it, the remedy so provided by the statute must be followed and the civil court's jurisdiction is ousted.

JUDGMENT

L. RATH, J. - The defendants, who are respectively the Secretary of the Finance Department of the Government of Orissa, the Collector, Koraput, the Commissioner of Sales Tax, Orissa and the Sales Tax Officer, Koraput II Circle, Rayagada, are in appeal against the plaintiff's suit for claim of Rs. 36,762.12 and interest thereon at 6 per cent for a sum of Rs. 5,414.62 totalling an amount of Rs. 42,176.74 which has been decreed. The plaintiff claimed the amount as due to it as rebate under the provisions of section 9(3) of the Central Sales Tax Act, 1956 read with section 13(8) of the Orissa Sales Tax Act, 1947 as it stood at the relevant time. The provision in the State Act provided that if tax is paid by a dealer on or before the due date of payment, he shall be entitled to rebate of 1 per cent of the tax payable. Under section 9(3) of the Central Act, the tax payable under the Act is assessed and collected in the same manner and in accordance with the same provisions as relate to a tax of the State Act. The facts pleaded by the plaintiff, which are not in dispute, are that they had paid the tax due from it regularly in due time for the financial years 1963-64 to 1968-69 the last such payment being made on 30th April, 1969, for the month ending 31st March, 1969. The respondent made an application for refund on 11th November, 1969 which was rejected by the Assistant Commissioner on 28th January, 1970. A decision of the Supreme Court in the identical case of Orissa Cement Ltd. was delivered on 22nd April, 1970 reported in [1971] 27 STC 118; AIR 1970 SC 1672 (Orissa Cement Ltd. v. State of Orissa) declaring that the rebate payable under section 13(8) of the State Act is applicable also to the tax paid under the Central Act by virtue of section 9(3) thereof. The respondent thereafter carried a revision before the Commissioner of Commercial Taxes, Orissa under rule 22 of the Central Sales Tax (Orissa) Rules, 1957 read with section 23(4) of the State Act as against the order of assessment passed by the Sales Tax Officer but no revision was made against the order of Assistant Commissioner refusing to allow the rebate. The Commissioner rejected the revision against the assessment as not admissible since he held that proceedings of assessment under the Act are appealable after which a reference lies to this Court and hence the revision was not entertainable. The respondent thereafter served a notice under section 80, Civil Procedure Code, on 26th January, 1972 and filed the suit on 4th February, 1972. The suit was contested by the appellants contending that the respondent had for some years preferred appeals against the assessments, but had never raised the question of rebate nor had availed the remedy of second appeal against the assessments. It was contended that the civil court had no jurisdiction to entertain the suit in view of the provisions of section 22 of the State Act read with rule 22 under the Central Act and section 9 of the Orissa Sales Tax Act (sic), and that the suit was also barred by limitation. The learned Subordinate Judge who tried the suit held on both points against the appellants and finding that the respondent was entitled to the rebate, decreed the suit in part for Rs. 34,862.64 against the respondent No. 5. In appeal the learned Advocate-General appearing for the appellants has raised the same two questions that the suit was not maintainable in view of the provisions of section 22 of the State Act read with section 9(3) of the Central Act and that the suit was also barred by limitation.

2. To appreciate the contention of the learned Advocate-General regarding the bar to the jurisdiction of the civil courts, it is of profit to refer to the provisions of sections 13(8) and 22 of the State Act and section 9(3) of the Central Act as they stood at the relevant time :

Orissa Sales Tax Act :

"Section 13. (8) A rebate of one per centum on the amount of tax payable by a dealer shall be allowed, if such tax is