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TMI Blog2017 (11) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to re-open the assessment for the year 2004-2005, based on the clarification, dated 29.07.2004, impugned in W.P.No.39115 of 2005. Therefore, W.P.No.39115 of 2005 is required to be decided at the first instance, as the result of W.P.No.19693 of 2007 hinges upon the result in the first Writ Petition, i.e., W.P.No.39115 of 2005. 3. The petitioner is a dealer in parts and accessories of computer and computer peripherals, and registered on the file of the second respondent, under the provisions of TNGST and Central Sales Tax Act, 1956. The petitioner approached the first respondent, during 1998, seeking for a clarification with regard to the rate of tax, payable for the following items:- i) Hard Disk Drives ii) Local Network (LAN) Products iii) Unix Controllers iv) Inter-Networking Products v) Storage Products vi) Wide-area Network (WAN) Products 4. The request made by the petitioner was considered by the first respondent, and a clarification was issued on 24.08.1998, which is to the following effect:- i) The request of the petitioners has been considered. It is hereby clarified that the items mentioned below are liable to tax at the rate mentioned against each. 1. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to another dealer, the petitioner immediately rushed to the first respondent, and submitted a representation on 23.08.2003, requesting for confirming the clarification issued in their favour on 24.08.1998 with regard to products like Switches, Hubs of Routers, by clarifying that they are computer peripherals and taxable at 4% under Entry 18 (i) of Part B of the first schedule to the TNGST Act. The petitioner's application, dated 23.08.2003 was not disposed of, and was kept pending and in the meantime, notices were issued by the respondent/Department proposing to re-open the assessment for the years 2001 onwards. Therefore, the petitioner sent a reminder, dated 29.06.2004, emphasizing that Hubs and Routers fall under wireless reception, transmission equipments and devices, as they are not used in telecommunication equipments or devices. Therefore, a request was made to the first respondent to re-consider the order passed in favour of WIPRO Ltd.,. After nearly a year, the impugned clarification has been issued, stating that, Switches, Hubs and Routers are taxable at 12% under 14 (iv) Part D of the first schedule to the TNGST Act. The petitioner submitted further representation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer to the Special Government Pleader, dated 27.07.2016. This is evident from the fact that, some products are sought to be taxed under three different entries. The first respondent has not given any reasons, as to why the clarification, dated 24.08.1998 should not be adhered to. That apart, there is no material placed on record in the form of counter affidavit by the first respondent, as to on what basis, the product was brought under Entry 14 (iv) Part D of the first schedule to the TNGST Act. However, when the clarification, dated 24.08.1998 was issued, the then Special Commissioner of Commercial Taxes addressed a letter to the Electronic Corporation of Tamil Nadu Ltd. (ELCOT), dated 05.03.1998. In response to the said letter, the General Manager (Development) ELCOT addressed the first respondent, vide reply, dated 28.04.1998, which is to the following effect:- " ELECTRONICS CORPORTION OF TAMILNADU LTD. (A Govt. of Tamil Nadu Enterprises) REF: RC.NO.GMD/ELCOT/ST/98 Dt.28-4-98 The Special Commissioner & Commissioner of Commercial Taxes,Chepauk. Respected Sir, Sub : TNGST Act 1959 Rate of tax clarification under Section 28 (A) of the Act for certain Comput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onic apparatus for obtaining duplicating copies, electronic teleprinters, and fax machines of all kinds and electronic typewriters, indexing, card punching, etc. By no stretch of imagination, the products, which have been dealt with by the petitioner, cannot be brought under Entry 14 (Iv) in Part D of the first schedule to the TNGST, to be taxed at 12%. 12. Further to be noted is that, the impugned clarification, dated 29.07.2004 cannot be treated as superseding the clarification, dated 24.08.1998, as it does not contain any reasons to the said effect. Merely stating that the impugned clarification modifies the earlier clarification is insufficient. Even assuming that there is modification done by the Commissioner, such modification should contain reasons, as to how, the Commissioner proposes to take a different stand from that of the earlier clarification, which, in the instant case, was given, after obtaining the opinion of ELCOT, which would bind the first respondent. 13. Thus, the appropriate classification of switches, hubs and routers dealt with by the petitioner should undoubtedly fall under Entry 18 (i) in Part B of the first schedule to the TNGST. The counter affidavit f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice of a computer, similar to that of key board, floppy disk or hard drive, which enables the transmission of data from one computer to another or one area to another. The definition of the term 'peripheral' as per the dictionary meaning is as follows: "lying at the outside or away from the central part; outer; external" 10. It is not in dispute that 'router' is a device falling outside the main part, namely, computer and it is partially or completely dependent on the host and expands the capabilities of the computer and it does not form part of the core architecture. What are all computer peripherals have not been defined in Serial No.22 of Entry 68 of Part B of I Schedule to TNVAT Act, 2006. Therefore, whatever goods, which are falling within the definition of 'peripheral' would be entitled to such a benefit. We find that 'router', from the nature of its use in conjunction with the computer as has been defined by the Appellate Deputy Commissioner and the Tribunal based on relevant computer related dictionary and data, is a peripheral of a computer. It is also held by the Tribunal that 'router' is a computer network device that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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