9911796707
TMI Blog2021 (7) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner (In W.P.Nos.5830, 5831, 8396 of 2008, 29013 to 29015 of 2011 & 17 of 2014) : Mr.P.Rajkumar For the Petitioner (In W.P.No.29404 of 2015) : Mr.R.Senniappan For the Petitioner (In W.P.Nos.22822 & 22823 of 2016, 762 & 763 of 2017 & 3802 of 2018) : Mr.Hari Radhakrishnan For the Petitioner (In W.P.Nos.11345 to 11347, 13428, 15964 & 16833 of 2018) : Ms.R.Hemalatha For the Respondent(s) (In W.P.Nos.4355 of 2008, 36068 of 2004, 16051 of 2005, 4563, 5830, 5831 & 8396 of 2008, 21104 of 2009, 29013 to 29015 of 2011, 17 of 2014, 29404 of 2015, 22822 & 22823 of 2016, 762 & 763 of 2017, 3802, 11345 to 11347, 13428, 15964 & 16833 of 2018 and W.P.(MD).Nos.4527 of 2009 & 5612 & 5613 of 2014) : Mr.V.Nanmaran, Government Advocate For the RR1 to 3 (In W.P.No.9011 of 2008) : Mr.V.Nanmaran, Government Advocate For the R4 (In W.P.No.9011 of 2008) : No appearance COMMON ORDER All these writ petitions are filed by the petitioners/registered dealers registered under the provisions of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as "the TNGST Act"), Tamil Nadu Value Added Tax Act, 2006 (hereinafter referred to as the "TNVAT Act") and also under the Central Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Section 8 enumerates that "subject to such restrictions and conditions as may be prescribed, a dealer who deals in the goods specified in the Third Schedule shall not be liable to pay any tax under the TNGST Act in respect of such goods". 7.It is contended that as contemplated under Section 8 of the TNGST Act (exemption clause), there is no restriction or condition imposed in the exemption granted in Item No.2 of Part-B of the Third Schedule to the TNGST Act. Thus, for all purposes, the exemptions are to be construed as general exemptions and thus, the action initiated, contrary to the exemption, is to be held as void. 8.As far as the CST Act is concerned, regarding sale of Intra-ocular lenses inter-State, Section 8 of the CST Act contemplates "rates of tax on sales in the course of inter-State trade or commerce". Sub-section (1) stipulates "every dealer, who in the course of inter-State trade or commerce, sells to a registered dealer goods of the description referred to in sub-section (3) shall be liable to pay tax under the CST Act, which shall be 3 percent, of his turnover or at the rate applicable to the sale or purchase of such goods inside the appropriate State under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and dealer, the exemption is not available. This being the condition within the provision, there is no irregularity or illegality on the part of the respondents in imposing sale tax with reference to the transactions made by the petitioners, which all are admittedly, not directly to the physically disadvantaged persons. 13.In support of the said contention, the learned counsel for the respondents referred to the judgment of the Hon'ble Supreme Court of India in the case of Commissioner of Sales Tax vs. Pine Chemicals Ltd. reported in (1995) 1 SCC 58 and the relevant paragraphs are as follows:- "8.The idea behind Sub-section (2-A) of Section 8 of the Central Sales Tax Act, which we have analysed hereinbefore, is to exempt the sale/purchase of goods from the Central Sales tax where the sale or purchase of such goods is exempt generally under the State sales tax law. We must give due regard and attach due meaning to the expression "generally" which occurs in the subsection and which expression has been defined in the explanation. If the said expression had not been there, it could probably have been possible to argue that inasmuch as the goods sold by a particular manufacturer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid government order does not satisfy the requirements of Section 8(2- A). ............ 11.We may now refer to and examine the basis on which the judgment under review holds that the exemption granted by Jammu & Kashmir Government Order No. 159 is a general exemption within the meaning of Section 8(2-A) of the Central Sales Tax Act. The Bench agreed that "the existence or otherwise of the three limitations under the explanation above referred to on claiming exemption under Section 8(2-A) of the Central Sales Tax Act will therefore, have to be tested with reference to the transaction of sale or purchase as the case may be" but then qualified the words "sale or purchase, as the case may be", by adding "of the dealer who claims the exemption in respect of his intrastate sale or purchase of the same goods". It was further added: "Thus the specified circumstances and the specified conditions referred to in the explanation should be with reference to the local turnover of the same dealer who claims exemption under Section 8(2-A) of the Central Sales Tax Act". In our respectful opinion, however, Sub-section (2-A) speaks of sale or purchase of goods being exempt generally un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in a large or medium industrial unit within five years of its going into production and were sold within that period. As pointed out hereinbefore, the exemption was not with reference to goods but with reference to the unit manufacturing the goods." 16.The petitioners have stated that the respondents have not substantiated their contention that the exemption is conditional. Contrarily, the language in the statute unambiguously clarifies that the exemption is general in nature. Thus, there is no reason to claim tax in respect of the sale of Intra-ocular lenses either to the dealer or to the hospital. 17.Considering the arguments as advanced by the respective learned counsels appearing on behalf of the parties to the lis on hand, this Court is of the considered opinion that whether the exemption granted is general in nature or certain conditions are impliedly or expressly imposed is the point to be considered. 18.Let us look into the Third Schedule to the TNGST Act, which should be read along with Section 8 which provides exemption from tax. Therefore, the object of Section 8 of the TNGST Act is to grant exemption in respect of the goods and such exemption is subject to such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edule to the TNGST Act. 21.This Court has no doubt with reference to the language adopted in Item No.2 of Part-B of the Third Schedule to the TNGST Act, which contemplates "aids for physically disadvantaged person". The aids for physically disadvantaged may be many in numbers. However, such aids notified by the Government alone are exempted under the statute more specifically, Third Schedule. In the present case, five goods are exempted from sale tax. Further, the Third Schedule to the TNGST Act commences by contemplating "goods exempted from tax by Section 8", Therefore, once a particular goods is exempted from tax by Section 8, then such goods are to be treated as generally exempted, unless there is an expressed restriction or condition attached to the exemption clause. In the present case, there is no such restriction or condition contemplated in Item No.2 of Part-B of the Third Schedule. Item No.2 generally states 'aids for physically disadvantaged persons as notified by the Government'. Thus, the Government notified five goods which all are exempted and those five goods are to be exempted generally and therefore, the condition now suggested by the Government in their ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
