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TMI Blog2019 (5) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... e its case or its objections before the said Communication and Clarification were issued. Although Section 28 A of the TNGST empowers the Commissioner of Commercial Taxes to issue a clarification on the rate of tax in response to a request from a registered dealer, the said communication and Clarification also do not cite any applicable provisions of law. Further, the Assessment Order dated 15.06.2006 was issued without waiting for the objections of the Petitioner and, therefore, the assessment order does not consider the submission that cotton seeds that are used only for seeding purposes are exempted under Entry 7 of Part -B of the III Schedule. Consequently, it is in the interest of justice that the Assessment Order dated 15.06.2006 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he seeds become poisonous and cannot be used for edible purposes. In effect, according to the Petitioner, the seeds become inedible and are capable of being used only for sowing purposes by farmers. According to the Petitioner, the seeds were classified under entry 17, 18, 19 and 20 of Part-B of the Third Schedule of the Tamil Nadu General Sales Tax Act, 1959 (the TNGST Act) and the said entries read as under: 17.Bacterial culture for agricultural purpose; 18.Organic manures and green manure seeds; 19.Certified and truthfully labelled seeds for seeding purpose; and 20.Vegetable seeds and flower seeds but excluding oil seeds. Subsequently, Part-B of the III Schedule w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Clarification is impugned in W.P. No. 10768 of 2006. This position was reiterated by the Commissioner of Commercial Taxes by letter dated 13.10.2005 wherein it was further stated that the usage theory cannot be invoked in entry 7 Part-B of the III Schedule. Thereafter, the assessment orders dated 28.02.2006 were issued both under the TNGST Act and CST Acts whereby tax was imposed on the basis that cotton seeds are oil seeds and, therefore, taxable under the II Schedule. The assessment order under the CST Act is impugned in W.P. No. 10769 of 2006 and that under the TNGST Act is impugned in W.P. No. 10770 of 2006. An interim stay of the impugned proceedings is in force from 25.04.2006. 3.At the hearing, the learned couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipt of a copy of this order. 4.The learned counsel also referred to the Order of this Court in M/s.VEESONS ENERGY SYSTEMS (P) LTD Vs. THE COMMISSIONER OF COMMERCIAL TAXES, CHENNAI in W.P.(MD)No.5866 of 2010, wherein this Court held that the first respondent therein did not have power to suo moto issue a clarification under Section 48 A of the Tamil Nadu Value Added Tax Act, 2006. On the basis of the above Order, the learned counsel for the Petitioner submitted that Clarification No.147/2005 is liable to be quashed and that the Assessing Authority should be directed to make a fresh assessment after providing reasonable opportunity to the Petitioner. 5.In response, the learned counsel appearing for the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e affidavit, documents on record and the oral submissions, it is clear that the Commissioner of Commercial Taxes, the First Respondent herein, has stated, in the letter dated 30.08.2005 that the request for amendment of entry 7 cannot be complied with and, in the Clarification dated 26.09.2005, that hybrid cotton seeds are taxable at the rate of 4% under entry 6(iii) of the II Schedule to the TNGST Act. The said Communication and Clarification do not contain any reasons. It also appears that proper opportunity was not provided to the Petitioner to state its case or its objections before the said Communication and Clarification were issued. Although Section 28 A of the TNGST empowers the Commissioner of Commercial Taxes to issue a clarificat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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