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TMI Blog2015 (3) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... cation. These questions were never been considered by the Assessing Officer nor it is apparent on the face of the clarification. When revision notices were issued based on the clarification, the petitioner explained the manufacturing activity and contended that the product is purely water base containing 50 to 57% of water and the Commissioner had earlier issued a clarification, dated 13.02.2002, which stated that 'Bitumen Emulsion', though a petroleum product, is not specified in the Eleventh Schedule. Therefore, it is clarified that Bitumen Emulsion sold by the petitioner is taxable at 12% under residuary Entry No.40 of Part-D of First Schedule to the TNGST Act. It was further pointed out that there is contravention between the clari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents and perused the materials placed on record, including the written instructions given by the Commercial Tax Oficer, Vadapalani Assessment Circle I, Chennai, to the learned Special Government Pleader, dated 28.03.2008. 2. The petitioner, in all these writ petitions, is a dealer engaged in the manufacturing of Bitumen Emulsion and registered under the provisions of erstwhile Tamil Nadu General Sales Tax Act, 1959, (hereinafter will be referred to as the TNGST Act ) and also under the Central Sales Tax Act, 1956 on the file of the respondents. 3. In W.P.No.5510 of 2008, the petitioner challenged Clarification No.195/2005, dated 15.11.2005 in and by which the first respondent issued a clarification stating that Bitumen Emuls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 57% of water and the Commissioner had earlier issued a clarification, dated 13.02.2002, which stated that 'Bitumen Emulsion', though a petroleum product, is not specified in the Eleventh Schedule. Therefore, it is clarified that Bitumen Emulsion sold by the petitioner is taxable at 12% under residuary Entry No.40 of Part-D of First Schedule to the TNGST Act. It was further pointed out that there is contravention between the clarification issued on 13.02.2002 and 15.11.2005 for the same commodity. Further, it was pointed out that their assessment year was 2003-2004 and hence the clarification dated 13.11.2005 i.e., issued during the year 2001-2002 will bind and in this regard, it was brought to the notice of the second responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeded to confirm the proposal is untenable in law. 9. In the written instructions given by the Assessing Officer, it has been admitted that the Assessing Officer has to ultimately take an independent decision and it will always open to the dealer to canvass before the Assessing Officer and the Assessing Officer has to consider the materials placed before him and all matters can be canvassed before the Assessing Officer and he will arrive at an independent decision. 10. Further more, in the written instructions, the justification for issuing such a clarification has not been brought out. Neither the person at whose instance the clarification was issued nor what are the materials, which was the basis for issuing such a clarification, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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