9911796707
TMI Blog2002 (8) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... l exemption and thereby, for no t fulfilling conditions of Section 8(2-A) of the CST Act, 1956, and thereby, passed the assessment proceedings for the said year 1996-97 as per its proceeding dated 29-05-1998. 3. The petitioner would further submit that an Appeal filed under Section 9(2) of the CST Act 1956 read with Section 31 of the TNGST Act 1959 before the second respondent in A.P.No. CST 97/98, dated 23-10-1998, the order of the first r o be confirmed, further holding that the Entry 81 of the Part B of the Third Schedule to the TNGST Act, 1959, is only a conditional exemption and that the petitioner is not satisfying the conditions of Section 8 (2-A) of the CST Act, 1956; that a further Appeal against the order of the second respondent, dated 23-10-1998 before the third respondent in T.A.No. 164/99 also got dismissed confirming the views of the first and second respondents as per its order dated 11-05-2000, which is impugned herein. Hence, the petitioner has come forward to challenge the said order passed by the third respondent on certain grounds such as that the order impugned passed in T.A.No. 164/99, dated 11-05-2000, failed to substantiate how the Entry 81 of the Part B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AND OTHERS ([1995] 96 STC 355), so far as the first judgment cited above is concerned, wherein, it is held by a Division Bench as follow s: "3. The question that falls for our consideration is that whether the goods sold by the appellant in this case are exempted from tax generally under the Karnataka Sales Tax Act. The test applicable to verify whether the exemption granted is general iature or arose in specific circumstance or subject to conditions, could be illustrated with reference to the decision of Commissioner of Sales Tax v. Pine Chemicals Limited [1995] 96 STC 355, wherein the Supreme Court has stated that in ascertaining the true meaning of Section 8(2-A) of the Act, providing for exemption of Central Sales Tax on sale or purchase of goods where the sale or purchase of such goods is exempt generally under the State sales tax law, the expression "generally" which occurs in the said provision, will have to be ascertained with reference to the class of goods dealt with by the dealer. As long as the reference is to a class or category of goods, the exemption must be treated as general and if it is with reference to either manu facture or the circumstances under which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ha Industries V. Additional Deputy Commissioner of Commercial Taxes [1995] 98 STC 219), to which one of us (Raveendran,J.), is a party. But in that decision, it is held that the exemption is not with reference to footwear in general, but the goods are exempted under specific condition or circumstances. The Supreme Court has clearly and categorically stated in Pine Chemicals' Case (1996 STC 355 , that as long as such exemption is with reference to goods, the exemption could be treated as general in nature. Hence, whatever views might have been expressed earlier by this Court will be of no benefit or use. Therefore, that view expressed, being contrary to the decision of the Supreme Court in Pine Chemicals' [1995] 96 STC 355 we think requires reconsideration and in our view, therefore, for the reasons put forth earlier, when the goods are classified into two categories, and the description is only with reference to the goods, we do not think that we can say Section 8(2-A) of the Act is not attracted". In the second judgment cited above it is held: " The idea behind sub-section (2-A) of section 8 of the Central Sales Tax Act, which we have analysed hereinbefore, is to exempt the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled to exemption from tax. Indeed, the goods manufactured by that very unit would not be eligible for exemption if they are manufactured after the expiry of five years from the date it goes into production and/or sells them beyond the said period. The period of exemption may also vary from unit to unit depending on the date of commencement of production in each unit. For the above reasons, we are of the opinion that the exemption granted under the aforesaid Government order does not satisfy the requirements of Section 8(2-A)". On such arguments the learned counsel for the petitioner would pray to grant the relief prayed for. 7. In reply, the learned Government Advocate (Taxes) appearing on behalf of the respondents besides vehemently attacking the line of arguments adopted by the petitioner, would specifically argue that Section 8 is the charging Section un Sales Tax Act; that originally, it contained the rate of tax, how it is to be levied, under what circumstances, to whom etc.,; that Section 8(2-A) is referred as not conditional, but general; that it is non abstaining Section, non defining in nature and it contains the non defining clause; that it is not general in nature; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmed the order of the Assessing Officer had dismissed the Appeal , on which the petit eferred another Appeal before the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench, Chennai) and the said Tribunal had also turned down the plea of the petitioner as per its order dated 11-05-2000, which is impugned herein, the petitioner has come forward to file the above Writ Petition on certain grounds as brought forth in the grounds of Appeal. 13. The contention of the petitioner is that, he is entitled to the exemption under Entry 81 (e) of Part B of the Third schedule to the TNGST Act 1959 read with Section 8(2-A) of the Central Sales Tax Act, 1956. 14. It is relevant to extract Entry 81 of the third Schedule to the TNGST Act, 1959 and Section 8 (2-A) of the Central Sales Tax Act, 1956. 1.ENTRY 81 OF THE THIRD SCHEDULE TO THE TNGST ACT 1959 "The following, for sale, by any dealer whose total turnover does not exceed Rs.100 Crores in a year. a)Pulses and grams, the following, including broken, splits husk and dust thereof: i. Gram or gulab gram ii.Tur or arhar iii.Moong or green gram iv.Masur or lentil v.Urad or black gram vi.Moth vii.Lekh or Khesari. b)C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first respondent and state that only on ground that the exemption allowed under the TNGST Ac onditional one, the sales turn over was assessable to tax at 8%, ascertaining the true meaning of Section 8(2-A) of the Act, which provides for exemption of Central Sales Tax on sale or purchase of goods under the first judgment cited by the petitioner reported in PRESTON INDUSTRIES VS. COMMERCIAL TAX OFFICER, DISTRICT CIRCLE III, BANGALORE AND ANOTHER (103 STC 417), pointing out a Division Bench Judgment of the Karnataka High Court, Bangalore reported in COMMISSIONER OF SALES TAX, JAMMU AND KASHMIR A ND OTHERS VS. PINE CHEMICALS LIMITED AND OTHERS ([1995] 96 STC 355), would extract the relevant portion of the judgement that 'the exemption was with reference to the unit manufacturing goods and not with reference to the goods. It was emphasised that general exemption means the goods should be totally exempted from tax before similar exemption from the levy of Central Sales Tax Act can become available. Where the exemption from taxation is conferred by conditions; that the specific circumstances and conditions should be with reference to the transactions and not with reference to the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, they must make use of the discretion in such cases, whereas, in the case in hand, the Authorities have uniformly decided not to exercise such discretion in the sale of the items described and in the manner the transaction has taken place, taking various circumstances into consideration and in such case, if at all, the petitioner claims any right of exemption, it is open to the petitioner to establish as to how, he is entitled for the same. 21. The Section providing for such exemption is not mandatory, but only discretionary. Even in the case of discretionary exercise of power by the Authorities, it is upto the petitioner to establish, whether such discretion has not been p d or his case has been arbitrarily rejected, which he has failed to do. The petitioner is not even able to cite similar instances, wherein, the Assessing Officer has exempted from tax, such others, so as to plead discrimination in law. Therefore, the petitioner in the absence of such proof cannot claim it as of right giving only interpretation to certain terms in the Section and therefore, absolutely, no legal right of the petitioner is denied in the case in hand nor any other serious irregularities or legal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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