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TMI Blog2007 (11) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... ied mandamus to quash the clarification No. 87 of 2006, dated July 24, 2006 and for a direction to the first respondent to issue clarification afresh, after giving opportunity to the petitioner of being heard and after considering relevant materials. The case of the petitioner is as follows: The petitioner is carrying on business of supplying, installing, testing and commissioning diesel generators. Their transactions are exclusively with the Government Departments, predominantly Bharat Sanchar Nigam Limited (hereinafter called as BSNL ), which previously functioned as Department of telecom (hereinafter called as DOT ). The petitioner is an assessee on the files of the second respondent herein. According to them, as per G.O. Ms. No. 68, dated August 18, 2001, in respect of sale of telecom cables to BSNL and Mahanagar Telephone Nigam Limited (hereinafter called as MTNL ), the rate of tax for sale of telecom cables to BSNL and MTNL was reduced from 12 per cent to four per cent. Subsequently, a notification was issued in G.O. Ms. No. 32, dated March 27, 2002, with effect from April 1, 2002, wherein the expression telecom cables sold to BSNL was varied and read as sale of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... qualified official, opined that the generators will come under the preview of the power supply based power plant for telecom application, the first respondent ought to have accepted the expert opinion and clarified that, diesel generator sets manufactured by the petitioner and supplied to the BSNL and MTNL are power supply based power plant for telecom application. Mr. T.V. Lakshmanan, learned counsel appearing for the petitioner submitted that the impugned order is a cryptic order and no reasons have been assigned for coming to the conclusion that the diesel generating set is not eligible for concessional rate, as per G.O. Ms. No. 32, dated March 27, 2002. He further submitted that the Commissioner of Commercial Taxes, the first respondent herein, is not a technical expert to examine as to whether diesel generating sets would fall within the definition of switch board power supply for power plant for telecom application and under such circumstances, he ought to have obtained opinion of the technical experts, who actually deal with the goods or should have accepted the opinion given by the technically qualified person from BSNL and granted the concessional rate of tax. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing equipments relating to telephone devices, etc., switch board power supply based power plant that are used in telecom application, which is no way be equated with the diesel generating set . He further submitted that the equipments, parts and other accessories described in the notification issued in G.O. Ms. No. 32, dated March 27, 2002, are electronic systems and the diesel generating set cannot be described or meant as switch board power supply based power plant for telecom applications . Learned Additional Government Pleader further submitted that as there is no ambiguity in the description of the diesel generating set, as found in entry 5(i) of Part E of the First Schedule, there is no need to obtain any expert opinion and such procedure is also not contemplated under the Tamil Nadu General Sales Tax Rules, 1959 (hereinafter referred to as the Rules ). He further submitted that as per rule 26A of the Rules, on an application by the registered dealer in form XIV, the Commissioner of Commercial Taxes may clarify any point concerning the rate of tax under the Act and such clarification shall be applicable to the goods specified in the application submitted by the regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thiruvalargal Bharat Sanchar Nigam Limited, Videsh Sanchar Nigam Limited and' shall be substituted. The petitioner on his own has filed an application dated May 3, 2006 under rule 26A of the TNGST Rules to the first respondent, seeking clarification regarding the applicability of Notification No. II(1)/CT/19(b17)/ 2002, G.O. No. 32, dated March 27, 2002 effective from April 1, 2002, granting concessional rate of tax in respect of sale of switching equipment, sound recording and transmitting equipment of every description including telephones, intercom devices, telephone cables, fibre optic cables, switch board, power supply based power plant for telecom application, parts and accessories thereof and batteries for power backup systems for equipment only to Tvl. Bharat Sanchar Nigam Ltd. . As per the procedure as contemplated in rule 26A, a registered dealer has to submit his application in form XIV accompanied by proof of payment of required fee. In the instant case, as against the column No. 3 in the application, as to how the name of the goods for which clarification regarding rate of tax is required, the petitioner has mentioned as diesel generating set supplied d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her clarified that in cases where the application of commercial meaning or trade nomenclature runs counter to the statutory context in which, the said word was used, then the said principle of interpretation should not be applicable. In the instant case, generating sets, transformers, etc ., fall under entry 5(i) of Part E of the First Schedule to the TNGST Act and therefore, theory propounded by the learned counsel for the petitioner is not applicable to the facts of the case. Inasmuch as there is no ambiguity in the true import and meaning of the words diesel generating set , in the Schedule, the decision in Collector of Customs, Bombay v. United Electrical Industries Ltd. reported in [1999] 108 ELT 609 (SC), cannot be pressed into service. There is absolutely no quarrel over the principle contained in East Anglia Plastics' case reported in [1994] 74 ELT 29, that in construing the relevant item or entry in fiscal statutes, if it is one of every day's use, the concerned authority must normally construe it, as to how it is understood in common parlance or in the commercial work or trade circles. But in the case on hand, when the intention of the Government is to grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to the goods, as per the statute. As per rule 26A, the Commissioner of Commercial taxes, on verification of the details furnished by the registered dealer, may clarify any point, concerning the rate of tax on the goods under the Act. Such clarification shall be applicable to the goods specified in the application. Coming to the next contention of the petitioner that the respondent ought to have provided personal hearing to them before deciding the application under section 28A of the TNGST Act, it has to be decided whether the power exercised by the Commissioner of Commercial taxes under the Act is administrative or quasi-judicial function. In Engineering Mazdoor Sabha v. Hind Cycles Ltd. reported in AIR 1963 SC 874, the Supreme Court at paragraph 5, held as follows: The distinction between purely administrative or executive acts and judicial or quasi-judicial acts has been considered by this court on several occasions. In the case of Province of Bombay v. Khushaldas S. Advani [1950] SCR 621; AIR 1950 SC 222, Mahajan J., observed that the question whether an act is a judicial or a quasi-judicial one or a purely executive act depends on the terms of the particu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such application shall be entertained unless it is accompanied by proof of payment of such fee, paid in such manner, as may be prescribed. (2) The Commissioner of Commercial Taxes may, if he considers it necessary or expedient so to do, for the purpose of uniformity in the work of assessment and collection of tax, clarify any point concerning the rate of tax under this Act or the procedure relating to assessment and collection of tax as provided for under this Act. (3) All persons working under the control of Commissioner of Commercial Taxes shall observe and follow the clarification issued under sub-section (1) and sub-section (2). Under clause (1) of section 28A of the TNGST Act, the dealer comes forward on his own, seeking clarifications as to the rate of tax to be levied on any particular goods mentioned in the application and under clause (2), the Commissioner of Commercial Taxes, for the purpose of uniformity in the work assessment and collection of tax, clarify any point concerning the rate of tax. Applying the principles stated supra, the Commissioner of Commercial Taxes, in the absence of any lis or contest or attributes of a quasi-judicial authority to make ..... X X X X Extracts X X X X X X X X Extracts X X X X
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