2015 (3) TMI 663 - HC - VAT and Sales Tax

Rate of taxability of Bitumen Emulsion - first respondent issued a clarification stating that Bitumen Emulsion is taxable at 16% under Entry No.7(v) of Part-E of First Schedule to the TNGST Act, 1959 and if imported, it is taxable at 20% under Entry No.9 of Eleventh Schedule to the TNGST Act, 1959. - Held that - Commissioner has stated that the rate of duty to be collected for Bitumen Emulsion is 16%. But, the clarification does not spell out as to under what circumstances the clarification was issued and what was the necessity to issue such a clarification and the effect of its ramification. These questions were never been considered by the Assessing Officer nor it is apparent on the face of the clarification. When revision notices were issued based on the clarification, the petitioner explained the manufacturing activity and contended that the product is purely water base containing 50 to 57% of water and the Commissioner had earlier issued a clarification, dated 13.02.2002, which stated that Bitumen Emulsion , though a petroleum product, is not specified in the Eleventh Schedule. Therefore, it is clarified that Bitumen Emulsion sold by the petitioner is taxable at 12% under residuary Entry No.40 of Part-D of First Schedule to the TNGST Act. It was further pointed out that there is contravention between the clarification issued on 13.02.2002 and 15.11.2005 for the same commodity. The Assessing Officer merely recorded the objections given by the petitioner in a single line stating that the dealer has filed their contentions and the contention was carefully examined and found not accepted. Therefore, the Assessing Officer was purely guided by the clarification issued and the manner in which the Assessing Officer has proceeded to confirm the proposal is untenable in law. - Further more, in the written instructions, the justification for issuing such a clarification has not been brought out. Neither the person at whose instance the clarification was issued nor what are the materials, which was the basis for issuing such a clarification, has been disclosed. Hence, it has to be held that the impugned clarification has been mechanically applied to the cases of the petitioner, de hors the factual position. there is no necessity for quashing the impugned clarification, in so far as the petitioner is concerned, and it is suffice to observe that the clarification could be the sole basis for reopening or revising the assessment of the petitioner. - Petition disposed of.

Summary

Issues involved:
Challenge to clarification on taxation of Bitumen Emulsion under TNGST Act
Validity of assessment orders based on the clarification

Analysis:

1. Challenge to Clarification:
The petitioner contested Clarification No.195/2005, which stated that Bitumen Emulsion is taxable at 16% under the TNGST Act. The petitioner argued that the clarification was not issued at their instance and should not automatically apply to them, especially for revising finalized assessments. The court found the Assessing Officer's action unsustainable in law due to this lack of applicability.

2. Validity of Clarification:
The court noted that the clarification did not provide reasons for its issuance or its impact. The petitioner highlighted a previous clarification stating a lower tax rate for Bitumen Emulsion, creating confusion. Referring to a previous case, the court emphasized that such clarifications cannot override rules and are not binding in a quasi-judicial capacity. The court concluded that the clarification should not apply to the petitioner's assessments, leading to the request for dropping proceedings.

3. Assessment Orders:
The Assessing Officer based assessment solely on the impugned clarification, disregarding the petitioner's objections and explanations. The court criticized the Officer for not independently considering the materials presented and blindly following the clarification. The court also found the justification for the clarification lacking, as it did not disclose the basis or the person behind its issuance.

4. Judgment:
The court ruled in favor of the petitioner, quashing the impugned clarification and declaring the assessment orders for various years as invalid. The court highlighted that the clarification could not be the sole basis for revising assessments and emphasized the need for independent decision-making by the Assessing Officer. As a result, the writ petitions were allowed, and associated matters were closed without costs.