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1. The petitioners are dealers of chocolates. The turnover of chocolate was subjected to four per cent of tax in the assessment proceedings. Subsequently on the basis of the judgment delivered by the Supreme Court in the case of Pappu Sweets and Biscuits v. Commissioner of Trade Tax [1998] 111 STC 425 ; STI 1998 SC 97 notices under Section 22 of the U.P. Trade Tax Act, 1948, (hereinafter referred to as "the Act") have been issued in some of the writ petitions on the ground that the toffee is taxable as an unclassified item and is not sweetmeat. In some writ petitions notices under Sections 21 and 22 are under challenge. In other writ petitions provisional assessment notices and proceedings have been challenged on the ground that toffee/chocolate is taxable as sweetmeat and not as unclassified item.

2. Since common questions of law are involved, all these writ petitions were heard together with the consent of counsel for both the parties and are being disposed of by the common judgment.

3. The petitioners are dealers of toffee. The matter was argued with reference to writ petition No. 101 of 2000 by the counsel for both the parties ; hence it is necessary to give the fact of that writ petition only. The petitioner, is a co-operative society having its registered office in the State of Gujarat and the petitioner has its principal place of business in the State of Uttar Pradesh. It appears that the original assessment for the assessment year 1996-97 was framed by the Assistant Commissioner (Assessment) by the order dated December 31, 1998, a copy where of has been filed as annexure 1 to the writ petition. A perusal of the assessment order for the assessment year 1996-97 shows that the question of rate of taxability of chocolate was very much debated before the assessing officer. Reliance was placed upon an order passed by the Commissioner under Section 35 of the U.P. Trade Tax Act in the case of M/s. Hindustan Coco Products Ltd., wherein the Commissioner held that chocolate is a confectionary. Reference was also made to the judgment of the Supreme Court in the case of Pappu Sweets and Biscuits [1998] 111 STC 425 ; STI 1998 SC 97 by the assessing officer in its assessment order. After considering the entire material, the assessing officer held that the petitioner has rightly accepted the tax liability on the turnover of chocolate at five per cent including surcharge. Its order became final. Subsequently, the impugned notice dated December 29, 1999 was issued under Section 22 of the Act for the assessment year 1996-97 on the ground that the tax was wrongly imposed at the rate of four per cent while it should have been imposed at the rate of 10 per cent. A copy of the notice has been filed as annexure 2 to the writ petition. Challenging the validity of the said notice, the present writ petition was filed for quashing the notice issued under Section 22 of the Act. It also appears that for the assessment year 1994-95 notice under Section 21, filed as annexure 9 to the writ petition, was issued on identical facts, namely that in view of the judgment of the Supreme Court in the case of Pappu Sweets and Biscuits [1998] 111 STC 425 ; STI 1998 SC 97 toffee/ chocolate should be taxed as unclassified item and not as sweetmeat. Hence the writ petition.

7. Existence of alternative remedy is not an absolute bar. It is a self-imposed restriction by the courts not to exercise their discretion under Article 226 in appropriate cases. Since in the present case questions of law are involved as well as the interpretation of the judgment of the Supreme Court in Pappu Sweets [1998] 111 STC 425 ; STI 1998 SC 97 we have rejected the arguments of the learned Standing Counsel and proceeded to hear the case on merits.

8. Sri Bharatji Agrawal, Senior Advocate, submits that jurisdiction under Section 22 of the Act is confined to the rectification of a mistake apparent on the face of record of the assessment. The mistake must be a mistake which appears upon a glance on the record and not a mistake which emerges after prolonged deal on the merit of the question. The assessee was carrying on the business of selling toffee/ chocolate. The question of applicability of rate of tax on toffee/chocolate was very much debated before the assessing officer during the assessment proceedings. The assessing officer on the basis of the relevant material placed before him as well as upon the interpretation of the judgment of the Supreme Court in the case of Pappu Sweets [1998] 111 STC 425; STI 1998 SC 97 came to the conclusion that toffee is sweetmeat and is liable to be taxed as such at the rate of four per cent plus one per cent surcharge. He further submitted that when there is a dispute regarding the applicability of the appropriate rate of tax, the question being debatable, cannot be the subject-matter of either rectification under Section 22 of the Act or of reopening of assessment under Section 21 of the Act. On the other hand, it was submitted by Sri S.P. Kesarwani that it is always open to the department to rectify the mistake under Section 22 of the Act and to reopen the assessment under Section 21 of the Act if a wrong rate of tax has been applied by the assessing officer while framing assessment order. He further submitted that in the case of Pappu Sweets [1998] 111 STC 425 ; STI 1998 SC 97, the Supreme Court clearly held that toffee/ chocolate are not sweetmeat and are thus liable to be taxed as unclassified items ; hence action of the department is perfectly justified.

"Toffee is a confection of sugar and other materials and being rich in sugar would be 'sweetmeat' in its wider sense. But for deciding whether toffee is 'sweetmeat' as contemplated by the exemption notification, what is required to be considered is the object of the notification and the context in which that word is used in the notification."

11. It is very relevant to state here that toffee was treated as sweetmeat even by the Trade Tax Department. The Commissioner under Section 35 of the Act held that toffee is a sweetmeat as referred to in the assessment order filed as annexure 1 to the writ petition. Further the Government issued G.O. No. 818 dated March 19, 2000 which has been circulated by the circular of the Commissioner dated March 21, 2000 in which it has been mentioned that the entire tax which has been imposed for the period prior to October 6, 1998 in excess of five per cent is to be waived and neither any tax nor interest can be realised. The circular issued by the Commissioner is binding upon the authorities vide [2001] 122 STC 100 (SC) ; [2001] 248 ITR 338 (SC) ; 2000 UPTC 472 (Commissioner of Sales Tax v. Indra Industries). A perusal of the letter of the State Government dated February 13, 2002, issued to the Commissioner, Trade Tax, shows that a representation was made by the dealers of toffee to the State Government that toffee was always treated as sweetmeat by the department prior to January 16, 2000 and the tax was imposed and realised accordingly. On the representation of the dealers of toffee the State Government directed by the aforesaid letter dated February 13, 2002 for the waiver of tax and interest in excess of five per cent on toffee.