9911796707
TMI Blog2014 (7) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... ny circular or clarification. Further section 48 A was introduced with effect from 27.09.2011. Any order by the State Level Authority for Clarification and Advance Ruling under Section 48 A can only be made regarding any clarification on rate of tax on an application by a dealer. Even there, the first respondent has no powers to individually or independently issue any clarification on rate of tax. It is also clear that the first respondent does not have any authority to issue circulars or clarifications on any other matters other than rate of tax. The first respondent cannot use the circulars or clarifications to overcome the provisions of the statute. Any interpretation which was not intended by the legislature also cannot be introduced by way of circulars or clarifications. Any change in the statute can be brought in only by way of amendment. The levy of tax must be within the four corners of law and must not be based on surmises and conjunctures. Any act contrary to the provisions of the taxing statute would be hit by Article 265 of the Constitution of India. Therefore, the impugned circular issued without authority is set aside. The petitioner is directed to submit their obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in order and according to law. The Government Advocate further contended that the notice has been issued by the 2nd respondent on his own and since there is no irregularity in the circular, the writ petition is liable to be dismissed. 4. Heard both counsels. Section 2 (11) of the TNVAT Act reads as follows: Capital Goods means,- (a) plant, machinery, equipment, apparatus, tools, appliances or electrical installation for producing, making extracting or processing of any goods or for extracting or for bringing about any change in any substance for the manufacture of final products; (b) pollution control, quality control, laboratory and cold storage equipments; (c) components, spare parts and accessories of the goods specified in (a) and (b) above; (d) moulds, dies, jigs and fixtures; (e) refractors and refractory materials; (f) storage tanks; and (g) tubes, pipes and fittings thereof; used in the State for the purpose of manufacture, processing, packing or storing of goods in the course of business excluding civil structures and such goods as may be notified by the Government. 5. The definition only specifies that the goods which are used for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry. 9. While dealing with the scope of Circulars issued by commissioner, Central Excise, this Court in the judgment reported in 1992 (57) ELT 211 has held as follows: 19. The last point which has to be decided is whether the first and third respondents have jurisdiction to issue such circulars which bind the quasi- judicial authorities without leaving any room for exercising their quasi- judicial powers. The respondents can take umbrage, only under Section 37B of the Act. Sri K.Parasaran argues that section 37B should be to the classification of excisable goods or with reference to levy of duties of excise on such goods. In other words, it is argued that the words 'all such goods' are relatable only to the classification of excisable goods. If the argument of the Revenue with regard to the scope of section 37B is accepted, it will only mean that the second respondent can give any direction to any of the statutory authorities and direct them to impose duty in a particular manner. I am clearly of the opinion that could not have been the intention of the Legislature. The quasi-judicial authorities are certainly supposed to apply the charging provisions to be facts of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ependently on the basis of the materials produced before him. The petition seeking clarification and the clarification given by the first respondent have no legal sanction, hence, are of little significance and consequence as far as the assessment proceedings are concerned. 13. Even though this court held that the authorities do not have any power to issue any clarification, the same was not quashed as it was treated as non est in the eye of law. 14. In the Order in W.P.No.26395 of 2012 (CDJ 2012 MHC 5354, this Court while dealing with Circular No.22 dated 20.10.2011, held as follows: 4. As it is clear that the Circular, dated 20.10.2011, issued by the office of the Commissioner of Commercial Taxes, Chennai, cannot abridge or overrule the provisions of Rule 11(2) of the Tamil Nadu Value Added Tax Rules, 2007, this Court finds it appropriate to set aside the impugned order of the first respondent, dated 7.8.2012. Hence, it is set aside. The first respondent is directed to consider the form 'W' refund claim filed by the petitioner, manually, and pass appropriate orders thereon, on merits and in accordance with law, as expeditiously as possible. The writ petition is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority for Clarification and Advance Ruling under Section 48 A can only be made regarding any clarification on rate of tax on an application by a dealer. Even there, the first respondent has no powers to individually or independently issue any clarification on rate of tax. It is also clear that the first respondent does not have any authority to issue circulars or clarifications on any other matters other than rate of tax. The first respondent cannot use the circulars or clarifications to overcome the provisions of the statute. Any interpretation which was not intended by the legislature also cannot be introduced by way of circulars or clarifications. Any change in the statute can be brought in only by way of amendment. The levy of tax must be within the four corners of law and must not be based on surmises and conjunctures. Any act contrary to the provisions of the taxing statute would be hit by Article 265 of the Constitution of India. Therefore, the impugned circular issued without authority is set aside. The petitioner is directed to submit their objections within four weeks from the date of receipt of a copy of this order and the second respondent shall consider the objections ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
