IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.3.2009 C O R A M : THE HONOURABLE MR.JUSTICE K. CHANDRU W.P.Nos.614 and 615 of 1998 The Southern India Cotton Waste Merchants & Exporters Association, No.92, Thiruvenkataswamy Road, R.S.Thiruvenkataswamy Road, R.S.Puram, Coimbatore-2. .. Petitioner in W.P.No. 614 of 1998 Abba Traders, rep.by its Proprietor Mr.C.R.Natarajan .. Petitioner in W.P.No. 615 of 1998 -vs- 1.The Union of India, rep.by the Secretary, Ministry of Finance, Department of Revenue, New Delhi. 2.The State of Tamil Nadu, rep.by the Secretary to Government, Department of Commercial Taxes and Religious Endowments, Fort St.George, Chennai-9. 3.The Special Commissioner & Commissioner of Commercial Taxes, Ezhilagam, Chennai-600 005. ... Respondents 1 to 3 in both the WPs. 4.The Deputy Commercial Tax Officer, R.S.Puram West Circle, Coimbatore. .. Respondent No.4 in W.P.No.615 of 1998 PRAYER in W.P.No.614 of 1998 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of mandamus directing the respondents and their officers and agents to forbear from demanding central Sales Tax on the Inter-State sales of waste cotton effected by the members of the Association over and above 4% as indicated by G.O.Ms.No.693, dated 19.6.1982 of the second respondent herein in so far as the members of the petitioner Association are concerned. https://hcservices.ecourts.gov.in/hcservices/ PRAYER in W.P.No.615 of 1998 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari calling for the records on the file of the fourth respondent in CST/571395/96-97, dated 19.12.1997 and quash the same. For petitioner : Mr.N.Inbarajan For respondents : Mr.R.Tholgappian, GA (Taxes) (R3) Mr.A.Arumugam, Spl.GP (R2) O R D E R The first writ petition is filed by the Southern India Cotton Waste Merchants and Exporters Association seeking for a direction to the respondents to forbear from demanding Central Sales Tax (CST) on inter-State sale of waste cotton effected by the members of the Association over and above 4% as indicated in G.O.Ms.No.693, CT & RE Department, dated 19.6.1982 of the second respondent. A list of members of the petitioner Association has been included in the typed set filed along with the writ petition. 2. W.P.No.615 of 1998 was filed by the petitioner Abba Traders challenging the order of the fourth respondent (DCTO, Coimbatore, R.S.Puram West Circle) dated 19.12.1997 wherein the Central Sales Tax was sought to be levied at 10% on the cotton waste not covered by 'C' forms. 3. Notice was ordered in both the writ petitions on 21.1.1998. This Court also granted an interim injunction restraining the respondents from demanding more than 4%. Subsequently, this Court by a further order dated 26.2.2000 made the interim order absolute. A counter affidavit was filed by the fourth respondent in W.P.No.615 of 1998 dated 14.7.2000. 4. The State Government issued G.O.Ms.No.693, CT & RE Department, dated 19.6.1982 based on the request made by the Chamber of Commerce, Coimbatore about their difficulties in having exposed to the risk of paying enhanced rate of CST for non-production of 'C' forms and loss of business due to competition from Maharashtra and Gujarat. In the operative portion of the order in paragraphs 2 and 3, the State Government had given a direction, which is as follows:- ''Para 2. The Government have examined the request in consultation with the Commissioner of Commercial Taxes. The Commissioner of Commercial Taxes has recommended for reduction of the rate of tax under section 8(2)(b) of the Central Sales Tax Act 1956 to 4% so that inter- State sales with or without 'C' form will attract tax at 4% only. https://hcservices.ecourts.gov.in/hcservices/ Para 3. The Government have decided to accept the recommendation of the Commissioner of Commercial Taxes and to reduce the rate of tax under section 8(2)(b) to 4% in respect of inter-State sales of cotton waste." 5. Pursuant to the said decision, a Gazette notification was issued in the Tamil Nadu Government Gazette (Extraordinary) dated 26.2.1982 and it is as follows:- ''In exercise of the powers conferred by sub-section (5) of Section 8 of the Central Sales Tax Act, 1956 (Central Act 74 of 1956), the Governor of Tamil Nadu having been satisfied that it is necessary so to do in the public interest, hereby directs that the tax payable by any dealer under clause (b) of sub-section (2) of Section 8 of the said Act in respect of sales of cotton waste in the course of inter-State trade or commerce shall be calculated at the rate of four per cent." 6. Despite the issuance of notification, the petitioner Association complained to the Commissioner of Commercial Taxes by their letter dated 30.12.1996 stating that despite the sales tax on the inter-State sale of cotton waste, tax is to be assessed only at 4%. The authorities at Coimbatore were insisting for the submission of 'C' forms without which they threatened to impose 10% tax. The Commissioner of Commercial Taxes informed the petitioner Association by D.O.Letter dated 17.4.1997 stating that in view of the decision of the Supreme Court in State of Rajasthan and another -vs- Sarvotam Vegetables Products reported in (1996) 101 STC 547= (1996) 8 SCC 639, 'C' form has to be filed even if the rate of Sales Tax was fixed under section 8(5) of the CST Act. Subsequently, a clarification was issued stating that the judgment of the Supreme Court in Sarvotam Vegetables Products case (cited supra) covers all transactions for which notification is issued under section 8(5) of the CST Act reducing the rate of CST under section 8(2)(b) or otherwise. Therefore, the Deputy Commissioners were directed not to pass orders applying the principles until clarification is received from the Government. 7. It was the contention of the petitioners that the judgment of the Supreme Court in Sarvotam Vegetables Products case (cited supra) will relate to notification issued under section 8(1) - sale by registered dealers, whereas the petitioners' case will fall under section 8(2)(b) - sale by unregistered dealers. They also relied upon the said judgment to contend that the Supreme Court was not considering the provision of Section 8(2)(a). In response to their letter, the third respondent informed them by a letter dated 06.11.1997 that section 8(2)(a) of the CST Act is not an independent provision but a proviso to section 8(1) of the CST Act. Therefore, https://hcservices.ecourts.gov.in/hcservices/ when a benefit is claimed under section 8(2)(a), it can only be in respect of goods which are exempted from tax generally or is subject to tax generally at a rate which is lower than 4%. When the tax rate is 4% or more, the State cannot dispense with the tax condition of filing 'C' form and continue to tax goods at 4%. Thereafter a notice was given by the Department informing the dealers that if 'C' form is not produced, it will result in 10% tax. 8. It is at this stage, the petitioners came forward with the writ petitions seeking for the direction referred to above. In para 4 of the counter, the fourth respondent has averred as follows:- Para 4 .''.... in the notification No.II(1)/CTRE/188(a)/82 issued under sub-section (5) of section 8 of the CST Act, the Government have directed that the tax payable by any dealer under Clause (b) of sub-section (2) of Section 8 of the said Act in respect of sales of cotton waste in the course of interstate trade or commerce shall be calculated at the rate of 4%. In the decision of State of Rajasthan -vs- Sarvottam Vegetables Products, reported in 101 STC 547, the Hon'ble Supreme Court has held that any notification issued under section 8(5) of the CST Act reducing the rate of tax is subject to other provisions contained in Section 8 and it is not as if that the said notification issued under sub-section (5) is dehors to other provisions of the CST Act. Having regard to the abovesaid view of the Hon'ble Supreme Court, the third respondent the Special Commissioner and Commissioner of Commercial Taxes has given clarification that the said decision is applicable to the Notification as it has also been issued under Section 8(5) of the CST A ct. It is therefore submitted that it is not correct to say that the clarification has been issued by the third respondent that the production of 'C' forms is mandatory in order to avail the concessional rate of tax at 4% on interstate sales of cotton waste." 9. It must be stated that the power of exemption in this case was exercised under section 8(5) of the CST Act, which reads as follows:- S.8(5). Notwithstanding anything contained in this section, the State Government may, 1(on the fulfilment of the requirements laid down in sub-section (4) by the dealer) if it is satisfied that it is necessary so to do in the public interest, by Notification in the Official Gazette, and subject to such conditions as may be specified therein, direct - https://hcservices.ecourts.gov.in/hcservices/ (a) that no tax under this Act shall be payable by any dealer having his place of business in the State in respect of the sale by him, in the course of inter-State trade or commerce, 1(to a registered dealer or the Government) from any such place of business of any such goods or classes of goods as may be specified in the notification, or that the tax on such sales shall be calculated at such lower rates than those specified in sub-section (1) or sub- section (2) as may be mentioned in the notification; (b) that in respect of all sales of goods or sales of such classes of goods as may be specified in the Notification, which are made in the course of inter-State trade or commerce, 1(to a registered dealer or the Government) by any dealer having his place of business in the State or by any class of such dealers as may be specified in the Notification to any person or to such class of persons as may be specified in the Notification, no tax under the Act shall be payable or the tax on such sales shall be calculated at such lower rates than those specified in sub-section (1) or sub-section (2) as may be mentioned in the Notification)." 1. These words are added by Section 152 (v) of the Finance Act (20 of) 2002. The words in parenthesis were introduced by section 152(v) of the Finance Act (20 of) 2002. Therefore, the incorporation of Sections 8 (4) and 8(5) was not conceived before the amendment effected by Act 20 of 2002. 10. The present exemption was rendered in terms of section 8(2) (b), which reads as follows:- S.8. Rates of tax on sales in the course of inter-State trade or commerce.- (1) omitted (a) omitted (b) omitted (2) The tax payable by any dealer on his turnover in so far as the turnover or nay part thereof relates to the sale of goods in the course of inter-State trade or commerce not falling within sub-section (1) - https://hcservices.ecourts.gov.in/hcservices/ (a) omitted (b) in the case of goods other than declared goods, shall be calculated at the rate of ten percent or at the rate applicable to the sale or purchase of such goods inside the appropriate State, whichever is higher; 11. A reading of the section clearly states that it is an exemption in respect of sale of cotton waste and the rate of 4% was specifically fixed. It cannot be termed as notification with some conditions or that section 8(4) could be read into it. The Supreme Court in Sarvotam Vegetables Products case (cited supra) held that section 8(5) is an integral part of section 8. The power of exemption and the exercise is to be guided by consistent with the provisions of the Act. In page 554, it was observed as follows:- ''Para 12. Sub-section (5) of Section 8 is an integral part of Section 8 and the Act as such. The said power has to be exercised in public interest. The power of exemption and its exercise is to be guided by and be consistent with the provisions of the Act. More important, the levy of Central sales tax and the prescription of rate is not by the notifications but by the Act itself. Section 8(1) prescribes the rate and sub-section (4) the condition that has to be satisfied for availing of the rate in sub-section (1). What the notifications do is to reduce the rate prescribed by Section 8(1) further, subject to certain conditions. The conditions prescribed by the notifications are the conditions prescribed for availing the further reduction of rate provided by the notification. The notifications merely reduce the rate of tax; they do not do away with the levy altogether. All that the notifications have done is to reduce the rate of tax from 4% to 1 1/2% (2 1/2%, as the case may be). Separate conditions are prescribed for availing the rate (which itself is a concessional rate) prescribed in Section 8(1) and for availing the further reduction provided by the notification. Those two sets of conditions are prescribed by Section 8(4) and by the notifications respectively. One cannot conceive of the said notifications independent of, or apart from Section 8 (1). They merely reduce the rate in Section 8(1) as already mentioned. One must first satisfy the condition in Section 8(4) to become eligible for the concessional rate in Section 8(1). It is only thereafter that he can claim the benefit of the said https://hcservices.ecourts.gov.in/hcservices/ notifications, for which purpose again he has to satisfy the conditions prescribed in the notifications. It is therefore wrong to think that Section 8(5) or the notifications are self-contained and operate dehors the other provisions of the Act/Rules. The Division Bench has unfortunately failed to appreciate the notifications in their correct perspective. We are of the opinion that the judgment under appeal is unsustainable in law and it is accordingly set aside. The learned Single Judge was right in dismissing the writ petitions." But in that case the Supreme Court considered a notification issued under section 8(5) but prescribing certain conditions. It was also held that in that case the impugned notification was not total but partial. 12. The judgment of the Supreme Court came to be considered by a Division Bench of this Court in Sree Ayyanar Spinning and Weaving Mills Limited -vs- State of Tamil Nadu reported in (1998) 109 STC 205. In that judgment, the Division Bench after referring to Sarvotham Vegetables Products case held in paragraphs 26 and 27 as follows:- Para 26. But, the question is as to whether the dictum laid down therein is applicable to the facts of the case on hand. Admittedly, under the second notification issued dated April 17, 1990, in supersession of the earlier notification dated December 26, 1986, the tax payable under sub-section (1) of section 8, by any dealer having business in a State in respect of the sales by him shall be calculated at the rate of 1 ½ per cent, subject to the fulfilment of certain conditions. Therefore, it is crystal clear that the notification issued under sub-section (5) of section 8 of the CSTA, the tax payable under sub-section (1) of section 8 thereof was reduced from 4 percent to 1 ½ per cent and therefore the Apex Court said that for reducing the rate to become effective and payable, it is incumbent upon the assessee-dealers to produce the relevant ''C'' forms, as contemplated by sub-section (4) of section 8, on the rationale or basis that the rate, as prescribed by sub-section (1) of section 8, is operable subject to the fulfilment of the conditions that had been prescribed by sub-section (4) of section 8 of the CSTA and that is all and nothing further. Para 27. We have reproduced the Notification No.II(1)/ CTRE/139(b)/76 dated March 19, 1976 relevant for the https://hcservices.ecourts.gov.in/hcservices/ instant case. Therefore, there is no need to reproduce the same again here. If one sifts and sans the language employed in the said notification, it will be abundantly clear that there are no areas of limitation therein, so as to restrict the operation of the notification, with reference to sub-section (1) of section 8 of the CSTA. If we refer to clause (ii) of the said notification, the words or the expressions employed therein, namely, ''the tax payable under the said Act" shall be calculated at the lower rate of two per cent. (emphasis supplied). Section 8 of the CSTA prescribes the rate of tax on sales in the course of inter-State trade or commerce, while section 6 is a charging provision." 13. Thereafter, in paragraphs 39 and 40, the conclusions arrived at by the Division Bench were as follows:- Para 39. In this view of the matter, the order of the Tribunal, adding the rate of levy of two per cent, by way of additional sales tax to the lower rate of levy at two percent imposed, pursuant to the notification issued by the State Government, under sub-section (5) of section 8 of the CSTA, as noticed earlier, cannot at all be stated to be sustainable in law and therefore, such imposition deserves to be set aside. Para 40. For the reasons as above, we are not inclined to affix our seal of approval to the submissions, emerging from learned Special Government Pleader representing the Revenue that the decision in Sarvotam Vegetables Produces (1996) 101 STC 547(SC) is applicable on all fours to the facts of the instant case." 14. Therefore, in the light of the exemption granted under section 8(5) of the CST Act, which is not conditional, it is not open to the respondents to seek for the submission of 'C' forms as a condition precedent for availing payment of CST at the rate of 4%. Both the writ petitions stand allowed. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar js https://hcservices.ecourts.gov.in/hcservices/ To 1.The Secretary to Government, Ministry of Finance, Department of Revenue, New Delhi. 2.The Secretary to Government, Department of Commercial Taxes and Religious Endowments, Fort St.George, Chennai-9. 3.The Special Commissioner & Commissioner of Commercial Taxes, Ezhilagam, Chennai-600 005. 4.The Deputy Commercial Tax Officer, R.S.Puram West Circle, Coimbatore. 2 CC To Mr.N.Inbarajan, Advocate, SR NO.8620 2 CC to the Government Pleader, SR NO.8692 & 8693. W.P.Nos.614 and 615 of 1998 ssr(co) pmk/26.3.2009. https://hcservices.ecourts.gov.in/hcservices/