9911796707
TMI Blog2016 (12) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... anufactured by them namely welded wire mesh - petition dismissed. - Writ Petition Nos.41906 to 41923 of 2016 and WMP.Nos.35880 to 35897 of 2016 - - - Dated:- 30-11-2016 - T. S. Sivagnanam, J. For the Petitioner : Mr.V.Sundareswaran For the Respondents : Mr. K. Venkatesh, GA ORDER Mr.K.Venkatesh, learned Government Advocate accepts notice for the respondents. Heard both. 2. In these batch of cases, the issue, which arises for consideration, is identical relating to two dealers, which are registered on the file of the respondent under the provisions of the Tamil Nadu Value Added Tax Act, 2006 (hereinafter referred to as the State Act). 3. The orders impugned in these writ petitions are assessment orders for the yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment under Section 27(1)(b) of the State Act and assessed the turnover pertaining to the sale of welded wire mesh by the petitioner, at a higher rate of tax i.e 12.5%. The petitioner was granted liberty to file their objections. 6. The petitioner filed separate objections for the assessment years, all dated 24.10.2016. The sum and substance of the objections was that the product is taxable at 4% and the goods do not fall within the residuary entry with Code No.301. In this regard, a reference was made to clarifications issued by the Commissioner of Commercial Taxes, Chepauk, Chennai-5 to (i) Tamil Nadu Wire and Allied Products Association, Chennai-3 dated 10.7.2007 and (ii) Tvl.Bharat Agencies, Chennai dated 14.10.2007. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand. It is further submitted that throughout the State, an identical product is taxed only at 4%. The Assessing Officer, while completing the assessment, took note of the clarification and also the decision of the Hon'ble Supreme Court holding that the circular issued by the Tax Authorities, though not binding on the Courts or the assessee, is binding on the Tax Authority. 10. After taking note of the said legal position, the respondent had given an interpretation as to why the petitioner should be taxed at a higher rate. The respondent premises its finding by stating that a clarification cannot be contrary to the Statute and if the clarification is found to be contrary to the Statute, the Assessing Officer is bound to follow the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the Assessing Officer cannot be solely guided by the dictates of the superior. Therefore, the observation made by the Assessing Officer in paragraph 15 of the assessment order is perfectly valid. 13. Furthermore, the clarifications dated 10.7.2007 and 14.10.2007 were issued in favour of the Tamil Nadu Wire and Allied Products Association and an individual dealer. The respondent has given certain reasons as to why welded wire mesh cannot be brought under Entry 20 in G.O.Ms.No.79 dated 23.3.2007, which enumerates the goods such as barbed wire, wire rod and wire links. 14. It is the endeavour of the learned counsel for the petitioners to bring the petitioners' product within the ambit of wire links. In fact, this is a seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem functionally useful in different applications, fencing being one of the areas where their utility overlaps. Even here, welded wire mesh is not useful if the area is uneven and has different gradients. Therefore, welded wire mesh on one hand and wire links/chain links/chicken mesh and similar other wire links on the other hand constitute commercially distinct commodities with distinct areas of usage and application. Their methods of production, their applications and commercial identities are largely different. A commodity's classification has to be based on common sense and its commercial identity. In the instant case, the distinct commercial identity of the two products does not permit them to be categorized as one and the same or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... move the Principal Secretary and Commissioner of Commercial Taxes for appropriate clarification, the impugned orders shall not be enforced for a period of six weeks from today, within which time, the petitioners shall obtain appropriate clarification. In the event of any clarification issued by the Principal Secretary and Commissioner of Commercial Taxes, after taking note of all relevant factors, in favour of the petitioners, then the petitioners are entitled to file an application under Section 84 of the State Act before the respondent. In the event of any clarification issued not in favour of the petitioners, then the petitioners are at liberty to file appeals before the Appellate Authority, namely the Appellate Deputy Commissioner (CT) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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