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TMI Blog2001 (2) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... t, while exercising the administrative powers is not vested with the power to issue suo motu clarification changing the earlier one on the same set of facts, without assigning any reasons. 4.. O.P. No. 125 of 2001 is to quash the clarification issued by the Principal Commissioner and Commissioner of Commercial Taxes in Letter No. Acts Cell-I 23327/2000, dated July 27, 2000. The facts are as follows: The second respondent/Commissioner of Commercial Taxes, has issued a clarification in the year 1993 in D. Dis. Acts Cell-I 29972/ 1993, dated September 16, 1993 on an application by a dealer in Erode as follows: "This case was examined and the following clarifications are given: While goods have to be used as such in a works contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned clarification dated July 27, 2000, for the use of rubber while re-rubberising the worn out spindles and the clarification is as follows: "The issue was re-examined in the light of the letter of Deputy Commissioner (CT), Vellore. The dealers purchase raw rubber and mixing it with chemicals and produce rubber sheets which are used for re-rubberising the worn out rubber rollers supplied by customers. The raw rubber purchased by the dealer is not used in the same form but transferred only after converting into rubber sheets. The job involves removing the worn out rubber from the rollers received from the customers and fixing the manufactured sheets layer by layer in the rollers to get the desired thickness. Then the rollers are vulca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... still worst as the dealers will be very much affected because they are under the impression that the assessment would be made on the basis of the earlier clarification and that when a fresh clarification was issued superseding the earlier clarification, the assessing authority is bound to follow the later clarification and as such suo motu clarification issued even without affording any opportunity to the dealers to explain the statute and their views thereon, the later clarification becomes arbitrary and therefore, the learned counsel prayed for declaration that the second respondent is not vested with the power to issue suo motu clarification superseding the earlier one on the same set of facts without assigning any reasons. 8.. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity in the work of assessment. 12.. When section 28-A(2) of the Act expressly enables the Commissioner to issue the clarification on his own discretion, and the suo motu powers are conferred under this section and the Commissioner has exercised his powers under this section, in this case, when representation came from the Deputy Commissioner, the contention of the petitioner herein that the Commissioner is lacking in powers for issue of such clarifications suo motu, has no merit. 13.. With regard to rubber sheets used for re-rubberising the worn out spindles, the Commissioner of Commercial Taxes, has given reasons in the impugned clarification, for differing from the earlier clarification and it reads that, "........fixing the manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered by the assessing authority at the time of assessment according to the nature of the work, the rubber used and the nature of any change in the goods. But the learned counsel Mr. N. Murali Kumaran contended that because of the issuance of this clarification by the Commissioner of Commercial Taxes, the assessing authority is bound to follow the clarification, in view of section 28-A(3) of the Act, and in such circumstances, the assessing authority may not be prepared to accept the facts placed before him and this clarification nullifies the genuine plea that will be raised by the dealers and therefore, it is to be held that such raw rubber purchased and used in the execution work of rubberising the worn out spindles is not exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, have to give independent decision on the arguments placed before them. 20.. From the view taken by this Tribunal, it is very clear that the assessing authority or the Appellate Assistant Commissioner, is not to blindly follow the clarification issued under sub-section (2) of section 28-A of the Act, but they have to give their independent decision on their own view on the arguments placed before them by the assessee of course, after due consideration of the clarification. For the reason that there was an earlier clarification issued in the year 1993, the Commissioner is not bound to keep idle even if he found that the earlier clarification is not according to law. It is only for this purpose sub-section (2) is there for issuing fresh c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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