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TMI Blog2015 (1) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... circular and in the circumstances it is not necessary to relegate the assessee to the Tribunal – thus, the order of the Tribunal is set aside – Decided in favour of revisionist assessee. - Trade Tax Revision No. - 91 of 2013, Trade Tax Revision No. - 92 of 2013, Trade Tax Revision No. - 93 of 2013, Trade Tax Revision No. - 94 of 2013, Trade Tax Revision No. - 95 of 2013 - - - Dated:- 25-9-2014 - Hon'ble B. Amit Sthalekar,JJ. For the Applicant : Vaibhav Pandey,Arvind Saran Das For the Respondent : C.S.C. ORDER The above Trade Tax Revisions have been filed against the order of the Commissioner, Commercial Tax Tribunal dated 7.3.2013. The revisionist-M/s Indian Farmers Fertilizer Coop. Ltd. ( Hereinafter referred to as the 'IFFCO') is a multi State Cooperative Society under the control of the Ministry of Agriculture Department of Chemicals and Fertilizers, Govt. of India. It is engaged in the business of manufacture and sale of chemical fertilizers. The prices on which chemical fertilizers are required to be sold by the revisionist are also fixed by the Government of India and the company cannot sell the chemical fertilizer at any rate or price othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n content has been determined at 6.5% per metric ton. In the said letter reference has been made to D.O. Letter dated 13.8.2002 Learned Senior Counsel has next referred to the Circular dated 14.2.2003 issued by the Additional Commissioner (legal) Trade Tax, U.P. Lucknow wherein also reference has been made to the earlier D.O. Letters dated 13.8.2013 and 16.1.2003 and with regard to the NPK complex it has been mentioned that the Nitrogen content would be liable to tax at 6.5% per metric ton. Reference has also been made by learned Senior Counsel to the Departmental Circular issued by the Director, Agriculture, Uttar Pradesh addressed to the Special Secretary (Krishi Anubhag-2) Government of U.P., Lucknow dated 11.3.2013 wherein it has been stated that with reference to the year 2002 with regard to the supply of NPK fertilizer 10:26:26 it had been informed by G.O. dated 13.8.2002 that in the NPK 10:26:26 complex, content of the Phosphate and Potassium would be exempted from Trade Tax which was effective with effect from 28.2.2002 and the tax would be imposed only on the Nitrogen content of NPK at the rate of 6.5%. Before the Tribunal two issued were framed. Issue no.1 being as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department of Industries which must be taken to be that voice. Reference has also been made to the judgment of the Supreme Court in State of U.P. and others vs. Deepak Fertilizer passed in Appeal (civil) No.3511 of 2001 passed on 14.5.2007 wherein the Supreme Court while considering the different kinds of Phosphatic fertilizer of NPK held that the Notification dated 15.5.1995 is discriminatory as it exempts all kinds of Phosphatic content of NPK except 23:23:0. It also referred to the decision of the Division Bench of the High Court, which had in turn placed reliance upon the case of Ayurveda Pharmacy another vs. State of Tamilnadu (1989) 2 SCC 285 and held that two items of the same category cannot be discriminated and in that case the High Court had held that merely because of different composition of NPK,discrimination could not have been made against NPK 23:23:0 and had ordered that appellants not to realise tax on the sale of NPK 23:23:0 from the respondents. Thereafter in para-13 of the judgment in the case of Depak Fertilizers the Supreme Court held that fertilizer of the NPK category such as NPK 12:32:16; NPK 15:15:15; NPK 20:20:0;, NPK 14:35:14 are included in the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective withdrawal of the benefit of set-off only for a particular period should be justified on some tangible and rational ground, when challenged on the ground of unconstitutionality. Thereafter in para 21 the Supreme Court held that the products of the respondents Deepak Fertilizers (supra) and the exemption granted in the notification, which are similar in nature, the product of NPK 23:23:0 is also a similar commodity within the meaning of the notification of exemption dated 10.4.1995 and it would not be open for the appellants (State of U.P.) to realise tax retrospectively on the sale of NPK 23:23:0. Para 21 of the judgement reads as follows:- 21. This being the position and in view of our discussion made herein earlier that the products of the respondent and the exemption granted in the notification in question which are similar in nature, we hold that the product of NPK 23:23:0 is also a similar commodity within the meaning of the notification of exemption dated 10th April, 1995. Therefore, it would not be open for the appellants, as held by the High Court, to realise tax retrospectively on the sale of NPK 23:23:0 from 10th April, 1994 to 31st March, 1995. Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Super Fine Processors Pvt. Ltd. vs. State of U.P. and others (2013) 58 VST 99 (All) wherein the Division Bench of this Court relying upon several decisions of the High Court and Supreme Court has held that Circulars issued by the Central Excise Customs are binding upon the department. The Court further relied upon a judgment of division Bench of this Court in Raghunatyh Laxminarayan Spices Pvt. Ltd. vs. State of U.P. 2000 UPTC 554 and held that circulars issued by the Commissioner are binding upon the authorities and they cannot contend it is not binding on them. Reference has also been made to the judgment of the Supreme Court in the case of Indra Industries (supra). Sri Sanjieve Shankhdhar on the other hand submitted that other than the circular of 11.3.2013, the earlier circulars have not referred to the fertilizer composition of NPK 10:26:26 and it has not been held that Phosphate and Potassium content of NPK fertilizer would be exempted from trade tax. He further submitted that this exemption has been mentioned for the first time in the Circular of the Director of Agriculture dated 11.3.2013 and that this circular was not before the Taxing Authority or before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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