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TMI Blog2009 (12) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration in these two writs is whether a commodity known as "maize oil" and "cake", which is a by-product of "maize" is a taxable commodity under the Central Sales Tax Act (for short, "the CST Act") and M.P. General Sales Tax Act and M. P. Commercial Tax Act (for short, "MPGST Act/MPCT Act") and if so at what rate? In other words, the question that arises for consideration in these writs is whether the commodity in question, which is in the nature of by-product of "maize" is subjected to payment of sales tax under the Sales Tax Acts and if so, under which entry and if they are exempt from payment of sales tax then under which entry? By filing this writ under articles 226/227 of the Constitution of India, the petitioner (dealer) seeks t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. According to the assessing officer, since, the Commissioner of Sales Tax in the case of Tirupati Starch and Chemicals Ltd. [1995] 28 VKN 205, had already taken the view that these commodities are subjected to tax at the rate of two per cent and hence, the petitioner too is liable to pay sales tax at the rate of two per cent on these commodities. It was accordingly taxed. The petitioner felt aggrieved, filed revision before the Upper Commissioner. By order impugned dated October 31, 2002 (annexure P17), the revision was dismissed and as a consequence, upheld the assessment order including the view taken therein. It is against these orders, the dealer felt aggrieved and filed these writ petitions under articles 226/227 of the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orated with reference to other entries and decided case law. The learned Additional Advocate-General appearing for the State supported the impugned orders on the reasoning contained therein. According to him, the view taken by the authorities is in accord with the view taken by the Commissioner in Tirupati Starch case [1995] 28 VKN 205 (annexure P9) and hence, no case was made out for any interference in the impugned orders. The learned counsel also made attempt to support the view with reference to relevant entries and in particular the entries 18 and 38 of Schedule II of the MPCT Act relating to by-products of maize and vegetable oil and contended that the commodity in question would fall in entry 18 or 38 for taxing purpose. Having he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghada 12. Phoolbahari jhadoo 13. All kinds of footwear made of P.V.C. and chappals made of rubber and straps thereof the selling price of which does not exceed Rs. 50 per pair. (2) (SECTION 14 of CST Act) 14. Certain goods to be of special importance in inter-State trade or commerce. It is hereby declared that the following goods are of special importance in inter-State trade or commerce: (i) Cereals, that is to say(i) paddy (Oryza Sativa L.). (ii) rice (Oryza Sativa L.) (iii) wheat (Triticum vulgare, T. compactum, T. sphaerococcum, T. durum, T-aestivum L., T. dicoccum); (iv) jowar or milo (Sorghum vulgare pers); (v) bajra (Pennisetum typhoideum L.); (vi) maize (Zea mays L) (vii) ragi (Eleusine coracana Gaertn); (viii) kodon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar from clause (vi) ibid. When admittedly "maize" is specified as "cereals" so also "maize oil" and "cake" to be the "by-product" of "maize" then as a necessary corollary "by-product of cereals", i.e., "by-product of maize" would be exempt from payment of sales tax by virtue of exemption notification dated March 30, 1994 (annexure P2) read with clause (ii) of entry 91 of Schedule I of the MPCT Act. In other words, once it is admitted that "maize" is a "cereals" and commodity in question, i.e., "maize oil/cake" are by-products of "maize" then "by-products of maize" would fall within the four corners of clause (7) of exemption notification read with clause (ii) of entry 91 of Schedule I of the MPCT Act thereby exempting such by-products from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s below which is based on the opinion of Commissioner given in the case of Tirupati Starch and Chemicals [1995] 28 VKN 205. In the first place, it was binding on assessing and revisional authority, they being subordinate to Commissioner. Such view was not binding on High Court. Secondly, the view that we have taken is based on plain reading of relevant entries governing the issue and lastly in the light of what we have held supra, the opinion of Commissioner is no longer hold good. It is, accordingly, overruled. In our view, if there arise any ambiguity or anomaly due to issuance of several notifications/amendments, etc., in respect of commodity in question then it is for the State to remove such ambiguity and make the intention of State ..... X X X X Extracts X X X X X X X X Extracts X X X X
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