IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 2.3.2011 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition Nos.27956, 27957, 27958, 27959, 27960 and 27961 of 2006 TVL. S.S. HEAT RECOVER PETITIONER IN ALL THE WPS. ENGINEERS REP. BY ITS PARTNER R. MANOGAR NOL 2 & 3 SIDCO INDUSTRIAL ESTATE CHETTIPAlaYAM ROAD MALUMICHAMPATTY COIBATORE. Vs 1 THE SPECIAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXE CHEPAUK, CHENNAI 600 005. 2 THE COMMERCIAL TAX OFFICER PODANUR ASSESSMENT CIRCLE C.T. BUILDINGS DR BALASUNDARAM ROAD COIMBATORE 641 018. RESPONDENTS IN ALL THE WPS. Writ Petition filed under Article 226 of the Constitution of India praying for a writ of Certiorari to call for the records of the impugned clarification issued by the first respondent in D.Dis Act cell II/16292/2006 dated 29.7.2006 in classification No.93/06 and quash the same as illegal, arbitrary and against the provisions of the Act and Rules (in WP.27956/06) ; (2) to call for the records of the impugned notice issued by the 2nd respondent in CST.No.284924/2004-05 dated 06.03.2006 and quash the same as illegal, arbitrary and against the provisions of the Act and Rules (in WP.27957 of 2006) ; (3) to call for the records of the impugned notice issued by the 2nd respondent in TNGST.No.1800495/2003-04 dated 15.11.2005 and quash the same as illegal arbitrary and against the provisions of the Act and Rules (In WP.No.27958/2006) : (4) to call for the records of the impugned notice issued by the 2nd respondent in TNGST.No.1800495/2004-05 dated 06.03.2006 and quash the same as illegal arbitrary and against the provisions of the Act and Rules (In WP.No.27959/2006); (5) to call for the records of the impugned notice issued by the 2nd respondent in CST.No.284924/2002-03 dated 17.11.2005 and quash the same as illegal arbitrary and against the provisions of the Act and Rules (In WP.No.27960/2006) ; and (6) to https://hcservices.ecourts.gov.in/hcservices/ call for the records of the impugned notice issued by the 2nd respondent in TNGST.No.1800495/2002-03 dated 17.11.2005 and quash the same as illegal arbitrary and against the provisions of the Act and Rules (In WP.No.27961/2006) respectively. For petitioner : Mr.K.Soundararajan in all WPs. For respondents : Mr.K.Radhakrishnan in all WPs. Government Advocate (Taxes) C O M M O N O R D E R Since, the issues involved in all the writ petitions are similar in nature, they are all taken up for final disposal and a common order is being passed. 2. According to the petitioner, the impugned clarification issued by the first respondent and the impugned notices issued by the second respondent, against the petitioner, are arbitrary, illegal and liable to be set aside. The first respondent had erred in not considering the relevant issues in detail, even though all the necessary documents in support of the letter, dated 20.3.2006, had been filed before him. No opportunity had been given to the petitioner to raise its objections before the impugned clarification had been issued. The first respondent had erred in stating that the heat exchangers would come under the Central Excise Tariff 84.18, when the petitioner had been assessed under the head 84.19. 3. The main contention of the learned counsel appearing for the petitioner is that the goods in question should be classified for the purpose of Central Excise Tariff, under the Tariff entry 84.19. He had also pointed out that in the license issued by the Central Excise authorities concerned, the goods in question had been shown under entry 84.19. However, the first respondent had issued the impugned clarification, dated 29.7.2006, classifying the goods in question, under the tariff entry 84.18 of the Central Excise Tariff Act. Accordingly, the goods in question are taxable at 20%, under the entry No.1 (ii), in Part F of the first Schedule to the Tamil Nadu General Sales Tax Act, 1959. Further, by the impugned clarification, dated 29.7.2006, the petitioner had been informed that Form XVII concession is not available for the sale of the said items, for their use as part of plant and machinery. 4. The learned counsel had also submitted that the clarification had been issued by the first respondent for the tariff entry 84.18, in spite of the fact that the petitioner had asked for the clarification, in respect of the tariff entry 84.19. https://hcservices.ecourts.gov.in/hcservices/ 5. In the common counter affidavit filed on behalf of the second respondent, it has been stated that in view of the impugned clarification, dated 26.3.2004, the revision notices had been issued to the petitioner proposing to revise the assessments, for the years 2002-03 and 2003-04, at the rate of 20% and disallowing the concessional rate of tax at 3%, adopted for the sales covered by Form XVII. For the assessment year 2004-05, a pre-assessment notice had been issued proposing to assess at the rate of 20% and disallowing the concessional rate claimed for the sales effected against form XVII. Aggrieved by the revision notices issued for the years 2002-03 and 2003-04 and the pre-assessment notice issued for the year 2004- 05, the petitioner had filed the present writ petitions, under Article 226 of the Constitution of India. 6. It has also been submitted that, as per Section 28-A of the Tamil Nadu General Sales Tax Act, 1959, the first respondent is empowered to clarify any point concerning the rate of tax under the said Act and the clarification issued by the first respondent is binding on all the persons working under the control of the Commissioner of Commercial Taxes, as provided under Section 28(A-3). Therefore, notices had been issued to the petitioner proposing to assess at the rate of tax at 20%, as clarified by the first respondent. 7. In view of the averments made in the affidavits filed in support of the writ petitions and in view of the common counter affidavit filed on behalf of the second respondent and in view of the submissions made by the learned counsels appearing for the parties concerned, it is seen that no notice had been issued to the petitioner before the impugned clarification, dated 29.7.2006, had been issued by the first respondent. As such, the impugned clarification cannot be held to be valid in the eye of law. It would be open to the second respondent to pass appropriate assessment orders, in respect of the goods in question, on merits and in accordance with law, after giving an opportunity of hearing to the petitioner and by permitting the petitioner to raise its objections, if any. The writ petitions are ordered accordingly. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar lan https://hcservices.ecourts.gov.in/hcservices/ To: 1 THE SPECIAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXE CHEPAUK, CHENNAI 600 005. 2 THE COMMERCIAL TAX OFFICER PODANUR ASSESSMENT CIRCLE C.T. BUILDINGS DR BALASUNDARAM ROAD COIMBATORE 641 018. 1 cc To Mr.K.Soundararajan, Advocate, SR.15410. 1 cc To The Special Government Pleader (Taxes), SR.14955. Writ Petition Nos.27956, 27957, 27958, 27959, 27960 and 27961 of 2006 GR(CO) RVL 25.04.2011 https://hcservices.ecourts.gov.in/hcservices/