Madras High Court
Tvl.Sakthi Masala (P) Ltd vs The Spl. Commissioner & Commissioner Of ... on 16 November, 2007
Author: S.Tamilvanan
Bench: P.K.Misra, S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16/11/2007
CORAM
THE HONOURABLE MR.JUSTICE P.K.MISRA
AND
THE HONOURABLE MR.JUSTICE S.TAMILVANAN
WRIT APPEAL Nos.614, 615 and 616 of 2005
Tvl.Sakthi Masala (P) Ltd.
Rep. by its Manager M.Nachiyappan
No.1052/5 & 6
Perumalpalayam
Kanjikoil Village
Erode District. ..Appellant in
WA.614/2005
Tvl.Shanthidevi Spices (P) Ltd.
Rep. by its Manager M.Nachiyappan
No.1052/5
Perumalpalayam
Kanjikoil Village
Erode District. ..Appellant in
WA.615/2005
Tvl.Sakthi Trading Company
Rep. by its Proprietor P.C.Duraisamy
No.1052
Perumalpalayam
Kanjikoil Village
Erode District. ..Appellant in
WA.616/2005
Vs
1. The Spl. Commissioner & Commissioner of Commercial Taxes
Chepauk
Chennai 5.
2. The Commercial Tax Officer
Perundurai
Erode District. ..Respondents in
all the WAs
Writ appeals filed under Clause 15 of the Letters
Patent against the order, dated 15.03.2005 made in
W.P.Nos.8959, 8960 and 8961 of 2005.
For appellants : Mr.R.Gandhi, Senior Counsel for Mr.R.G.Narendhiran
For respondents : Mr.Haja Nasurdeen, Spl.G.P. (Taxes)
C O M M O N J U D G M E N T
S.TAMILVANAN ,J These writ appeals have been preferred against the common order, dated 15.03.2005 passed by the learned single Judge, dismissing the writ petitions in W.P.Nos.8569, 8570 and 8571 of 2005, with a direction to seek the remedy of statutory appeals before the appellate authority.
2. It is seen that the question of law involved in both the writ appeals are one and the same, hence, common judgment is being passed in the writ appeals. In the writ petitions / writ appeals, the relief sought for is for issuance of writ of declaration to declare that the revised order, dated 04.03.2005, passed under Section 16 of the Tamil Nadu General Sales Tax Act, 1959 (herein after referred as the Act) by the second respondent, in respect of the appellants TNGST No.2922200 for the assessment year 2002- 03, TNGST No.2922745 for the assessment year 2002-03 and TNGST No.2920699 for the assessment year 1998-99 respectively as illegal and void and for consequential relief.
3. The appellants, placing reliance on the Government Order G.O.D.383, dated 22.10.1998, have contended that they are liable to pay only 4% sales tax, as per the clarification letter dated 08.07.2002 by the first respondent, instead of 16%, as demanded in the revised order.
4. According to the appellants, as per the Government Letter No.10754/B2/99.1, dated 16.07.1999, No.K.Dis.Acts Cell-III/38721/02, dated 08.07.2002 and G.O.Ms.No.121, Commercial Taxes, dated 28.05.1999, it was informed that sales tax payable for bajji, bonda mix was only 4%, as the said items would come under Entry 22-C in Part B of I Schedule of the Act.
5. The learned single Judge, dismissed the writ petitions on the ground that the appellants have right of appeal before the appellate authority against the orders passed by the second respondent under Section 31 of the TNGST Act and accordingly, the appellants were also given liberty to file appeal before the appropriate authority. Aggrieved by which, these writ appeals have been preferred by the petitioners therein for declaration and other consequential relief.
6. The main contention simpliciter raised by Mr.Haja Nasurudeen, learned Special Government Pleader (Taxes) is that there is statutory remedy of appeal available before the appellate authority, hence, the writ petitions filed under Article 226 of the Constitution of India would not be maintainable and that the appellants could have sought the relief only before the appellate authority, as per the orders of the learned Single Judge and not by way of filing the writ petitions / writ appeals and on that ground, he pleaded for dismissal of the writ appeals.
7. The learned counsel for the respondents, in support of his contention has relied on the following decisions :
1. P.A.S. Industries vs. Commissioner of Commercial Taxes, Chepauk, Chennai and another, (2007) 006 VST 0671.
2. Union of India vs. Telco, 1997 (8) SCC 730.
3. State of Tamil Nadu vs. Devendran & Company, (1996) 103 STC 95
4. G.Venkatakrishnaiah & Bros. vs. State of Andhra Pradesh, (1993) 90 STC 405.
5. Assistant Commissioner of Sales Tax, Kerala vs. P.Kesavan & C0., (1996) 100 STC 514.
8. Mr.R.Gandhi, learned senior counsel appearing for the appellants herein mainly relying on the decision, Tvl. Pizzeria Fast Foods Restaurant (Madras) Pvt. Ltd., vs. Commissioner of Commercial Taxes, reported in 2005 (1) CTC 629, contended that the writ petitions are maintainable under Article 226 of the Constitution, since the appellate authority had pre-conclusion by issuing subsequent clarification letter, dated 18.05.2004, stating that the sales tax payable for bajji, bonda mix was at 16% and also directed to demand the same by implementing the direction of clarification, virtually with retrospective effect.
9. It is clear that in Union of India vs. Ahmedabad Electricity Company Ltd., reported in 2003 (134) STC 24, the Honourable Supreme Court has held that once a circular is issued by the superior officer, any objection to the same before the subordinate officer would be a futile attempt. Since the impugned circular could not have been challenged before the departmental authorities, as they would be bound by it, the High Court was empowered to entertain the writ petition, challenging the circular, under Article 226 of the Constitution of India, despite the fact that there is alternative remedy of statutory appeal. Even though the above said decision was rendered in the context of the Central Excise Act, we are of the view that the ratio laid down by the Honourable Supreme Court therein, would apply to the question of law involved in this writ appeals. Relying on this decision, a Division Bench of this High Court in Tvl.Pizzeria Fast Foods Restaurant (Madras) Pvt. Ltd., vs. Commissioner of Commercial Taxes, reported in 2005 (1) CTC 629 has held as follows :
"...once a clarification or circular is issued by a superior authority, it would be an exercise of futility to ask the assessee to raise an objection to the circular before an inferior authority, vide the Constitution Bench decision of the Supreme Court in Filterco vs. CST (supra). Subsequently, it was also held by the Supreme Court that clarifications or circulars could be challenged before the High Court under Article 226 of the Constitution, since the remedies of appeal or revision would be futile or not efficacious.,,"
10. In similar case, in Vam Organic Chemicals Ltd., vs. State of Uttar Pradesh, reported in 2003 (132) STC 8, the Allahabad High Court held that when the subordinate authorities are bound by a circular, no purpose would be served by directing the petitioner therein to appear before the assessing authority who will feel bound by the circular issued by the Government of Uttar Pradesh.
11. The Andhra Pradesh High Court following the decision rendered by the Supreme Court in Filterco vs. CST (1986 (2) SCC 103) has held in Sri Rajarajeswari Parboiled Rice Industry vs. CTO, reported in 1999 (115) STC 99, that a circular which is binding on the assessing authority will also inhibit the appellate authority from taking a different view. Even if the statutory provision states that the Commissioner's circular is not binding on the appellate authority, administratively he is subordinate to the Commissioner and therefore, will be inhibited from taking a different view. It is seen that a similar view was taken by the Karnataka High Court in Arif Transport vs. CTO, reported in 1996 (116) STC 207.
12. In Etikoppaka Co-operative Agricultural Society Ltd., vs. Union of India, reported in 1979 ELT (J533), the Andhra Pradesh High Court held that once the highest authority constituted under the Act has pre-determined the question and directed all subordinate authorities to interpret a notification in a particular manner, the statutory remedy of appeal and revision ceased to be an effective alternative remedy, hence, writ petitions filed under Article 226 of the Constitution is maintainable.
13. It is seen that Writ Appeals in W.A.No.614 of 2005 relates to Sakthi Masala (P) Ltd., for the taxable year 2002- 03, W.A.No.615 of 2005 relates to Shanthidevi Spices (P) Ltd., for the year 2002-03, W.A.No.616 of 2005 relates to Sakthi Trading Company for the year 1998-99. The question of law involved in all the writ appeals are one and the same, as discussed earlier.
14. It is not in dispute that the appellants are engaged in manufacturing spices and masala powders, including bajji, bonda mix, coriander mix etc. Originally bajji, bonda mix was not a scheduled commodity under TNGST Act, thereby the ingredients of such mixture, namely, rice powder, gram powder mixed with spices / masala powders sold with or without any brand were not scheduled commodities under the Act. Hence, they were being treated only under the head "Others" in Part-B of I Schedule of the Act, for which tax was fixed at 11%. Subsequently, after the TNGST Act came to be amended in the year 1999, the masala powder was included as a scheduled commodity as item No.22-C in Part-B of I Schedule of the Act and thereby the tax was reduced to 4% from 11%. As per G.O.Ms.No.121, Commercial Taxes, dated 28.05.1999, reducing the tax to 4% from 11% was given effect from 01.06.1999 and accordingly assessment orders have been passed by the authorities, which is not in dispute.
15. As per Letter of the first respondent in No.Act.Cell-III/45190/2001, dated 01.11.2001, it was clarified that bonda mix, bajji mix containing flour of gram, rice, ragi mixed with masala powders or spices will fall under Entry 22-C in Part-B of I Schedule of the Act, for which the sales tax was fixed at 4%, when the same was sold with or without any brand with effect from 01.06.1999. As per D.Dis.Act Cell-II/7345/2002, dated 02.07.2002, bajji, bonda mix was taxable at 4% under Entry 22-C in Part-B of the I Schedule with effect from 27.03.2002. By Lr.No.K.Dis.Act.Cell-III/38721/02, dated 08.07.2002, the position was clarified stating that bonda mix, bajji mix powder was taxable at 4%. The Secretary to Government, Commercial Taxes Department, by his Letter No.10754/B2/99-1, dated 16.07.1999 referring to the Government Order, had informed that the rate of sales tax for the said items was only 4%.
16. It is seen that the impugned Pre-revision notice has been issued, based on the circular in Cell- II/D.Dis/40032/2003, dated 10.12.2003, clarifying that the rate of tax for bajji, bonda mix would be at 16% and the said circular came into force on 10.12.2003 and the same is challenged in the writ appeals.
17. It is seen from the order of the second respondent, dated 04.03.2005 that as per G.O.Ms.No.121, dated 28.05.1993, ginger coriander powder (sukku coffee) and bond, bajji mix, which are the subject matter in the writ appeals herein were originally stated to be products fall under Entry 22-C in Part B of I Schedule, taxable at 4%, since the above said entry items represents masala powder, but subsequently, as per the aforesaid letter clarified that item Number 4 (III) denotes foods, including preparation cereals, as was clarified by the Commissioner, and hence, taxable at 16% under Entry 3 of Part B of the I Schedule.
18. It is not in dispute that as per Letter No.Act.Cell- III/45190/2001, dated 01.11.2001, Special Commissioner and Commissioner of Commercial Taxes, Chennai has informed that the Turmeric and Masala Powder Manufacturers Association, Erode that bonda mix, bajji mix containing flour of gram, rice, ragi mixed with masala powders or spices will fall under Entry 22-C in Part-B, for which the tax payable was fixed at 4%. As per the order, dated 08.07.2002, it has been specifically clarified by the Commissioner of Commercial Taxes, Chennai that bonda mix, bajji mix etc are taxable only at 4% under Entry 22-C of Part-B of I Schedule of the Act, as correct.
19. It is not in dispute that as per the order, dated 18.11.2002, passed by the Appellate Assistant Commissioner, it has been clearly clarified and accordingly tax fixed initially for ginger coriander mix at 11% has been reduced to 4%.
20. The learned Special Government Pleader, in his argument contended that ginger coriander mix (sukku coffee) would not come under Entry 22-C in Part-B of I Schedule, though it had been clarified so in the circular issued by the authorities, but we are of the considered view that such an arguments cannot be sustained, after the period of assessment.
21. It is seen that the said Entry of I Schedule of TNGST Act reads as follows :
" 22-C Flour of grams, rice and ragi mixed with spices / masala powder sold with or without brand name."
and as per the aforesaid order, the Appellate Assistant Commissioner (CT), Erode has held that the same is taxable at 4% only.
22. It is not in dispute that originally, it was clarified by the respondents that bonda, bajji mix and ginger coriander mix would come under Entry 22-C in Part-B of I Schedule of TNGST Act, as per circular, Letter No.Cell- III/45190/2001, dated 01.11.2001 and accordingly, the tax levied was also intimated only as 4%. It is quite clear that the authority cannot levy any increase of sales tax, by a subsequent clarification, so as to virtually making it, to implement with retrospective effect. Here in the instant case, the respondents themselves have categorically stated by their circulars and letters that the tax payable for bonda, bajji mix and ginger coriander mix only at 4%, as per TNGST Act.
23. It is also not in dispute that the assessment in respect of the year 2002-03 was completed as early as October 2003 and orders were passed on 31.03.2004, contrary to that, the second respondent has issued the pre-revision notice, dated 18.05.2004 for the assessment year 2002-03, under Section 16 of the Act, demanding 16% of tax, only based on the subsequent clarification of the first respondent, under Section 28-A of the said Act.
24. Mr.R.Gandhi, learned Senior counsel appearing for the appellants submits that as it was clarified by the respondents that the tax payable for bonda, bajji mix and ginger coriander mix at 4%, as per Entry 22-C in Part-B of I Schedule, stating that the same would fall under the aforesaid Entry of the Act for the assessment year 2002-03, by way of subsequent clarification, dated 18.05.2004, it it cannot be made at 16%, so as to effect the same with retrospective effect, as the same is not sustainable in law.
25. In view of the facts and circumstances and the circular and clarification issued by the first respondent, the assessment of sales tax for bonda, bajji mix powder and ginger coriander mix was only 4%and accordingly, the assessment for the year 2002-03 was completed as early as October 2003, which is not in dispute. The learned counsel for the appellant contended that the order dated 04.03.2005 passed by the second respondent claiming sales tax at 16% for bonda, bajji mix, stating that it was food item, fall under Entry 4 of Part of I Schedule and ginger coriander mix at 11% are not legally sustainable.
26. The Hon'ble Supreme Court in Kerala Financial Corporation vs. CIT, reported in 1994 (210) ITR 129, has held that impugned revised assessment therein tantamount to amending TNGST Act itself by way of clarification issued under Section 28-A, where in a direction to levy tax at 16% though the charge Section prescribes a flat rate of 2% held not permissible, since the impugned clarification was contrary to the provisions of Section 3D, as it stood prior to 01.04.2002 and accordingly, the impugned clarification No.156/03, dated 26.06.2003 was quashed.
27. Since the Commissioner of Commercial Taxes is the superior authority to the assessing officer / appellate authority, it would be impracticable for the subordinate officer to take a view contrary to the view expressed by the said commissioner, since the view expressed by him is binding on the subordinate officer. Therefore, in the light of the decisions referred to above, we are of the consider view that the plea of alternative remedy cannot be accepted and it is opened to the aggrieved persons to seek appropriate remedy under Article 226 of the Constitution of India.
28. The decisions referred to by the learned counsel for the respondents are not applicable for the facts and circumstances of this case, since the questions of law involved in the writ appeals are different. The important questions of law arising for consideration in these writ appeals are :
1) Whether the writ petitions filed under Article 226 of the Constitution are maintainable, when there is statutory appeal remedy available; and
2) Whether the respondents are entitled to demand increased salestax at the rate of 16%, by way of second clarification, after the assessment is completed.
29. It is not in dispute that writ petition under Article 226 is not maintainable, when efficacious alternative remedy is available to the aggrieved assessee. In the instant case, the learned Senior Counsel appearing for the appellants contended that prior to the completion of the sales tax assessment for the year 2002-03, admittedly, the respondents by way of clarification intimated that the sales tax for bajji, bonda mix and ginger coriander mix at 4%, but after the assessment was completed, by way of subsequent clarification, dated 18.05.2004, the respondents issued notice demanding the sales tax at 16%, based on the subsequent circular issued by the first respondent and therefore, on account of the pre-conclusion by the superior authority, namely the first respondent, there cannot be any efficacious alternative remedy and hence, we are of the considered view that the writ petitions are legally maintainable.
30. It is not in dispute that the sales tax is an indirect tax and the assessment for the year 2002-03 was completed as early as October 2003. The second respondent, by his order, dated 04.03.2005 has claimed sales tax at 16% for the aforesaid items for the period 2002-03.
31. The Division Bench of this Court in the decision, P.A.S. Industries vs. Commissioner of Commercial Taxes, Chepauk, Chennai and another, reported in (2007) 006 VST 0671, has held as follows :
" The point involved in this petition is no more res integra. The Supreme Court in State Bank of Travancore v.
Commissioner of Income-tax (1986) 158 ITR 102, held that even though the clarifications issued by the Revenue being executive in character cannot after the provisions of the Act and since they are in the nature of concessions, they can always be prospectively withdrawn. In Keshavji Ravji and Co. v. Commissioner of Income- tax (1990) 183 ITR 1 (SC), while dealing with Section 119 of the Income-tax Act, 1961 which is in pari materia to Section 28-A of the Tamil Nadu General Sales Tax Act, the Supreme Court held that the benefits of such circulars to assessees have been held to be permissible even though the circulars might have departed from the strict tenor of the statutory provision and mitigated the rigour of law. In Collector of Central Excise, Patna v. Usha Martin Industries (1998) 111 STC 254, a three-Judge of the Supreme Court held that when the Central Board of Excise and Customs made all others to understand a notification in a particular manner and when the latter have acted accordingly, it is open to the Revenue to turn against such persons on a premise contrary to such instructions and such circulars would be binding on the department. "
32. In Mohan Breweries and Distilleries Limited v. Commercial Tax Officer, reported in (2005) 139 STC 477, the Division Bench of this Court held as follows :
" 8.6.10. It is, therefore, clear that even though the clarification dated November 9, 1989 is executive in nature, the same is binding on the authorities till the concessions given to the petitioner under the clarification were withdrawn, which could be done only prospectively, viz., in the instant case, with effect from January 28, 2002 and the Revenue could not refuse the benefit of the clarifications, dated November 9, 1989 and December 27, 2000 in respect of levy of purchase tax under Section 7-A of the Act for the impugned assessment year 1996-97."
33. It has been made clear by the Division Bench of this Court in the decision referred above that the clarification made by the authorities is executive in nature and binding on the subordinate authorities, hence, subsequent clarification withdrawing concessions, which was given earlier could be done only prospectively and not with retrospective effect. In the instant case, admittedly, as per the clarifications made by the respondents for the assessment year 2002-03, for the aforesaid items sales tax at 4% was made and the same was completed during October 2003, as clarified by the respondents herein. By subsequent clarification, dated 18.05.2004, made by the first respondent, the second respondent had issued the impugned order, dated 04.03.2005 to the petitioners, demanding the tax at 16%. In fact, the demand made by the respondents is nothing, but an order imposing additional burden of the indirect tax on the petitioners with retrospective effect, which is not legally sustainable.
34. In the light of the aforesaid decisions rendered by the Hon'ble Apex Court and the Division Bench of this Court referred above, we are of the considered view, to meet the ends of justice, all the writ appeals have to be allowed, setting aside the impugned orders passed by the respondents.
35. In the result, the W.A.Nos.614 to 616 of 2005 are allowed and the common order passed in the connected writ petitions are set aside. However, there is no order as to costs.
tsvn To
1. The Spl. Commissioner & Commissioner of Commercial Taxes Chepauk Chennai 5.
2. The Commercial Tax Officer Perundurai Erode District.