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2021 (9) TMI 426 - HC - VAT and Sales TaxValidity of Curtailing and whittling down the benefits with retrospective benefit - Musical Instruments - scope of the power conferred under Section 17 of the TNGST Act from 12.02.2004 - Validity of Notification G.O.MS No.193 (CT R (B2) dated 30.12.2006 - ultravires Section 17 of the TNGST Act, Articles 14, 19 (1) (g) and 265 of the Constitution of India or not - petitioner-Company have challenged the Notification issued in G.O.Ms.No.193, dated 30.12.2006 on the ground that once exemption granted under sub-section (1) of Section 17 cannot be cancelled or varied under sub-section (3) of Section 17 with retrospective effect - HELD THAT - This Court is of an opinion that the exemption was granted initially in Notification G.O.Ms.No.45, dated 12.02.2004. In the said Notification, it is generally stated that the exemption in respect of tax payable by any dealer in sale of Indian Musical Instruments. In view of the fact that the Commercial Taxes Department found certain difficulties, inconsistency and discrepancy, though not to describe further in respect of classification of Indian Musical Instruments. Situation warranted for issuing the subsequent order in G.O.Ms.No.193, dated 30.12.2006. Perusal of these two Notifications would reveal that both relatable to Indian Musical Instruments. However, in the first Notification, the details/classification of Indian Musical Instruments have not been provided and in the subsequent Notification, it is clearly stated that the exemption in respect of the tax payable by any dealer under the said Act on the sale of Indian Musical Instruments namely, Veena, Violin etc. Thus, the subsequent Notification dated 30.12.2006 is only in the nature of clarification to understand what are all the instruments falling under the head of 'Indian Musical Instruments'. The benefit of exemption is not taken away and the benefit of exemptions conferred in Notification G.O.Ms.No.45 remains in tact. The subsequent Notification was issued on 30.12.2006 enumerating the list of instruments which all are falling under the category of Indian Musical Instruments. Thus, the impugned notice dated 30.12.2006 cannot be construed as if an alteration made in respect of the exemption granted in Notification G.O.Ms.No.45. Tax exemption is a concession. Thus, exemption from payment of tax can never be claimed as a matter of right. Exemptions are to be granted strictly in consonance with the provisions of the Act. Thus, purposive and contextual interpretation of exemption provisions are imminent for the purpose of extending the benefit of exemption. The Government is vested with the power to grant exemption and such exemptions are to be granted in judicious manner. Power of exemption is conferred in order to minimise the inequality and to mitigate the unjust circumstances and to ensure that the Constitutional principles are achieved to the extent possible. Thus, exemptions granted under any Statute is to be measured with reference to the Constitutional principles and its perspectives - The power of exemption is to be utilised for the upliftment of the depressed, oppressed and the poor class of people and not for the purpose of granting benefit to the large profit making organisations. Thus, any abuse or excessive grant of exemption is to be construed as opposed to public policy under the Constitutional philosophy. The exemptions granted by invoking Section 17 of the TNGST Act, remains as it is in respect of Indian Musical Instruments and the impugned Notification dated 30.12.2006 in G.O.Ms.No.193 was issued to clarify the Indian Musical Instruments, which all are falling under the exemption clause notified in G.O.Ms.No.45, dated 12.02.2004 and therefore, the subsequent Notification is a clarificatory in nature and cannot be construed as cancellation of the exemption granted in G.O.Ms.No.45, dated 12.02.2004 - the very Government Notification dated 30.12.2006 in G.O.Ms.No.193 would reveal that it is also relatable to Indian Musical Instruments and what are all the instruments, which all are falling under the category are enumerated for the purpose of removing the doubts for levying tax. This Court do not find any merit on the contentions raised on behalf of the petitioner - Petition dismissed.
Issues Involved:
1. Validity of G.O.MS No.193 (CT & R (B2) dated 30.12.2006. 2. Retrospective application of the notification. 3. Classification of electronic musical instruments as Indian Musical Instruments. 4. Tax exemption eligibility under the TNGST Act. Detailed Analysis: 1. Validity of G.O.MS No.193 (CT & R (B2) dated 30.12.2006: The petitioner challenged the validity of G.O.MS No.193, dated 30.12.2006, arguing it curtailed the benefits granted by the earlier notification G.O.Ms.No.45/CT(B2) dated 12.02.2004. The earlier notification exempted all Indian Musical Instruments from tax, while the subsequent notification restricted the exemption to specific enumerated instruments. The court observed that the latter notification was issued to clarify the instruments qualifying for exemption, not to curtail or withdraw the exemption granted earlier. 2. Retrospective Application of the Notification: The petitioner contended that the notification dated 30.12.2006 was applied retrospectively, which was beyond the scope of the State Government's power under Section 17 of the TNGST Act. The court clarified that the subsequent notification did not retrospectively alter the exemption but provided clarity on the instruments included in the exemption. Thus, the notification was not retrospectively applied. 3. Classification of Electronic Musical Instruments as Indian Musical Instruments: The petitioner argued that their electronically manufactured musical instruments should be classified as Indian Musical Instruments and thus be eligible for tax exemption. The court referred to the Karnataka High Court's judgment in State of Karnataka vs. Radel Electronics Pvt Ltd, which supported the classification of electronically manufactured instruments as Indian Musical Instruments. However, the respondents argued that the exemption aimed to support poor artisans engaged in traditional manufacturing, not large-scale electronic manufacturers. The court concluded that electronic instruments fall under Item 14(iv) of Part D of the First Schedule of the TNGST Act, taxable at 12%, and should not be classified as traditional Indian Musical Instruments eligible for exemption. 4. Tax Exemption Eligibility under the TNGST Act: The court emphasized that tax exemption is a concession, not a right, and must be granted in accordance with the Act's provisions. The purpose of the exemption was to support poor artisans and promote traditional Indian music. The court held that the petitioner's electronic instruments do not qualify for the exemption intended for traditional instruments. The subsequent notification provided clarity without altering the exemption's scope. Conclusion: The court dismissed the writ petitions, stating that the subsequent notification was clarificatory and did not retrospectively alter the exemption. The petitioner's electronic instruments were classified as electronic instruments, taxable at 12%, and not eligible for the exemption intended for traditional Indian Musical Instruments. The court reiterated that exemptions should be granted judiciously to support the intended beneficiaries, not large-scale manufacturers.
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