Appeal against Revision

The Nagpur Bench of Bombay High Court in their Lordships’ judgment in Shiv Shyam Sales Enterprises case has made some passing remarks regarding the nature of order passed under section 57 of the Bombay Sales Tax Act, 1959. They stated that the orders of revision are not original orders and therefore no appeal lie against the same to the appellate authorities constituted under the Bombay Sales Tax Act, 1959 as section 55 of the said Act provides for appeals only against the original orders.

We say the remarks are passing one because this particular point was neither raised nor argued by either side before the Court. The revenue had only submitted that the petitioner had alternate remedy under the Bombay Act and therefore the Writ Petition should not be entertained. It appeared to the Court that apparently there was no remedy of filling appeal under section 55 against such order and, therefore, it expressed its prima facie opinion that Section 55 was not available to the petitioner. The Court’s immediate further observation that "in any case the point as sought to be raised ought to have been taken at the time of initial hearing when the Writ Petition was entertained in the year 1989" only shows that the Court did not want any deliberations on this point of admissibility of Writ Petition at that stage nor it wanted to decide that issue in the year 2006. It, therefore, expressed that law relating to such attempts of raising the issues, which should have been raised in preliminary hearing, at the time of final hearing was settled law and such attempts could not be permitted.

There is a real distinction between an obiter dictum of the Court and a prima facie view taken by the Court. A prima facie view expressed on any question of law by a judge is only tentative view based on first impression of his opinion, though it was not necessary for the decision of the case before him. See Smt. Haramani vs. Dinabandu AIR 1954 Orissa 54 (Vol. 41, C.N. 17). The expressions of our High Court in Shiv Shyam Sales Enterprises case regarding the character of revision order is of similar nature and it is only a prima facie view of the Court and not even obiter dictum.

Whether the revision order is the original order or not is not at all an open issue. As early as in the year 1966 the Bombay High Court had held that the revision proceedings were Fresh Proceedings implying thereby that the order passed in such proceedings is an original order. See The Swastik Oil Mills Ltd. vs. H.B.Munshi (B.H.C.) reported in 21 STC 383 on page 390. This case was followed by the Larger Bench of the M.S.T.T. in M/s. Prabhat Stainless Steel Exports by their judgment dated 29th March, 1966 reported in M.S.T.T. Vol.
No. 1 of 1966 at Sr. No. 183 which was further followed in another Larger Bench judgement in M/s. Hindustan Bakery Rev. Appl. Nos. 72 to 74 of 1969 on 22nd September, 1971 and reported at Sr. No. 12 at page No. 121 of the Selected Decisions of Maharashtra Sales Tax Tribunal.

Thus, revision proceedings are original or fresh proceedings is the settled law. The view adopted by the High Court in Swastik Oil Mills holds field for last forty years. It should be adhered to unless there are compelling reasons for departing from the same. See Merind Limited reported in 136 STC 462 (B.H.C.)paragraph No. 33 on page 478. Let us not get swayed away by the ‘prima facie’ opinion in Shiv Shyam Sales Enterprises case.