State Taxation Tribunal - Tamil Nadu
A.S. Balu vs Special Commissioner And Commissioner ... on 12 January, 1999
Equivalent citations: [2004]134STC524(TRIBUNAL)
JUDGMENT
J. Kanakaraj, J. (Chairman)
1. The Original Petition is directed against the clarification issued by the first respondent in letter No. Acts. Cell-II/65530/98 dated October 8, 1998. In the petition it is stated that the said clarification was issued under Section 28-A of the Tamil Nadu General Sales Tax Act, 1959. But the clarification as such does not contain any reference to Section 28-A. It is pointed out by the learned counsel for the petitioner that the earlier clarification was dated June 23, 1998 and it was under Section 28-A and, therefore, the present clarification which is made on the request of a dealer seeking withdrawal of the clarification, should also be deemed as a clarification under Section 28-A of the Tamil Nadu General Sales Tax Act. It is not necessary to decide this issue for the disposal of this Original Petition. The cause of action for the Original Petition is the revised notice issued by the Deputy Commercial Tax Officer, Tiruchengode, on November 24, 1998. In the revised notice reference is made to the clarification made by the Commissioner and the exemption claimed on the commodity "maize starch" is proposed to be rejected. The argument of the learned counsel is, when the exemption was contained in the form of a notification issued under Section 17 of the Tamil Nadu General Sales Tax Act, 1959 the Madras High Court has held in T.C. Nos. 1145 to 1148 of 1990 that the products of millets will include maize starch also. The said notification has since been cancelled and the gist of the notification is now included in the Third Schedule. The result will be the same, namely, that the products of millets which are included in the Third Schedule in the same terms as the earlier notification, will also exempt maize starch from exigibility to tax. No doubt the argument has considerable force in view of the judgment of the Madras High Court. But the only lacuna is that the judgment of the Madras High Court was rendered on December 9, 1990 when the present entry number 61 in Part B of the First Schedule was not available. This entry shows that sago and starch of any kind is assessable to tax at 4 per cent. Therefore, in the impugned clarification of the Commissioner one cannot straightaway hold that the last paragraph which is as follows :
"Hence cancelling the earlier clarification, it is now clarified that maize starch is taxable at 4 per cent under entry 61 of Part B of the First Schedule from July 17, 1996" has to be set aside or is contrary to the Madras High Court judgment.
2. It is open to the petitioner to put forward his objections to the revised notice and await orders of the assessing authority. Thereafter, it is open to him to file an appeal if the assessing authority gives a findings against him.
3. We may also point out that Sub-section (3) of Section 28-A which says all persons working under the control of the Commissioner of Commercial Taxes, shall observe and follow the clarifications issued under sub-sections (1) and (2) cannot override the decisions of the Madras High Court or the Supreme Court of India if the point at issue is identical. It is always open to the assessee to bring to the notice of the assessing authority or the Appellate Assistant Commissioner the decision of the High Court or the Supreme Court on identical issue which run against clarifications of the Commissioner. With these observations the Original Petition is dismissed.
And this Tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned.
Issued under my hand and the seal of this Tribunal on the 12th day of January, 1999.