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TMI Blog2008 (9) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... etation of the provision, it will not have the effect of denial of the benefit of earlier circular. In other words, the impugned circular has to be only prospective and not retrospective. In that view of the matter, the petitioner is not liable to pay tax at 12.5 per cent. for the period covered under the earlier circular and is liable to pay tax at 12.5 per cent., which arises only from the date of the impugned circular. - Writ Petition No. 562 of 2008 - - - Dated:- 17-9-2008 - KUMAR N. , J. ORDER:- N. KUMAR J. The petitioner in this petition is seeking a writ of certiorari for quashing of annexure C, the clarification dated December 11, 2007 and in the alternative for a declaration that it would apply prospectively and not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. Annexure B is the said clarification dated February 2, 2006. Subsequently, the second respondent served notice on the petitioner dated May 29, 2007 calling upon the petitioner to show cause as to why the clarification dated February 2, 2006 ought not to be withdrawn since the aluminium composite panel was excisable to tax under section 4(1)(b) of the Act at the rate of 12.5 per cent. and not at four per cent. as clarified earlier. The petitioner appeared through the authorised representative and contested the said show-cause notice. However, the second respondent overruled the objections of the petitioner and withdrew the clarification dated February 2, 2006 and issued a fresh clarification dated December 11, 2007. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Tariff Code 3920.10.19, which was found to be incorrect and the same was withdrawn. As the said clarification was based on misrepresentation made by the petitioner, the same was withdrawn with retrospective effect after providing sufficient opportunity of hearing to the petitioner. An entry cannot have two meanings, one prior to the clarification and subsequent to the clarification. The Commissioner has authority in law to withdraw the clarification. Subsequent clarification is nothing but rectification of the earlier clarification. The modification made to the clarification relates back to the date of issuance of the clarification. Therefore, the petitioner cannot challenge the clarification dated December 11, 2007 on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o clarify the rate of tax applicable to the goods in question. A clarification was given stating that it is four per cent. on the value of the goods. With the change of incumbent in the office, it was noticed that the said clarification is not proper. According to the second respondent, it was obtained earlier on misrepresentation of facts. He wanted to review the said clarification. Therefore, he had issued a showcause notice to the petitioner calling upon him to show cause as to why the earlier clarification should not be withdrawn. After hearing the petitioner, he has withdrawn the earlier clarification by giving cogent reasons. The power to withdraw such clarification cannot be disputed. The learned counsel for the petitioner submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. To wit, it is for the Supreme Court and the High Court to declare what a particular provision of the statute says and not for the executive. Following the aforesaid law, the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam reported in [1981] 131 ITR 597 and the learned single judge of this court in the case of Binani Industries Limited v. Assistant Commissioner of Commercial Taxes reported in [2003] 129 STC 199 held that any circular which beneficially affects the rights of dealers as it stood at the beginning of the assessment year will apply to the entire year and the modification/withdrawal of such circular will not be relevant for that current year but will only apply from the beginning of the next asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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