The main legal point established in the judgment is that the specific recitals for survey instruments in the classification excluded the general entry of electronic goods, and there was no ambiguity in the classification of the goods, leading to the uphold of the penalty levied under Section 12(3)(b).

B. Rajendran, J.

The petitioner has filed these Tax Cases as against the order passed by the Sales Tax Appellate Tribunal in T.A.No.759 of 1998 and T.A.No.158 of 1999 along with C.O.P.No.258 of 1998 and C.O.P.No.433 of 1998, dated 012. 1999.

2. Originally the Assessing Authority assessed the net taxable turnover at Rs.54,67,907/- including Rs.5,03,700/-representing first sales of machinery taxable at 8% as proposed in the pre-assessment notice which was taken twice while arriving at the total and taxable turnover, which was a mistake, the Assessing Authority therefore revised the assessment by adopting the correct sales turnover as under:

First sales of survey instruments Rs.49,64,207-00

First sales of spares and accessories of survey instruments at 16% Rs. 5,03,700-00

Miscellaneous income Rs. 46,642-00

Total and taxable turnover determined at 16% Rs.55,14,547-00

That apart the Assessing Authority levied a penalty under Section 12(3)(b). Similarly, for the year 1994-95 the Assessing Authority assessed a turnover of Rs.8,75,039/-at the rate of 16% treating the same as sales of survey instruments and also levied a penalty of Rs.1,92,603/- under Section 12(3)(b) and under Section 12(3)(c) a penalty of Rs.1,714/-. Aggrieved against this order, the appellant filed an appeal before the Appellate Assistant Commissioner and the learned Appellate Assistant Commissioner dismissed both the appeals. Aggrieved against that order, the appellants filed these Tax Cases and a Writ Petition before this Court. As all the matters are connected, all the three matters are taken up jointly by consent of parties.

3. The main contention of the learned Senior Counsel appearing for the petitioner is that the commodities dealt with by the petitioner are electronic equipments which are classified under entry 50 of Part B of First Schedule to the Tamil Nadu General Sales Tax Act and the correct assessable rate is only 3%. It was contended that the learned Appellate Assistant Commissioner erred in following a clarification issued by the Special Commissioner and Commissioner of Commercial Taxes, Chennai. It was contended that the electronic survey equipments dealt with by the petitioner herein cannot be treated on par with mechanical survey apparatus. It was also contended that the classification of a commodity is not to be determined according to the use to which it is put and he would rely upon a decision of the Apex Court reported in 42 STC 43 and also to a decision by Kerala High Court reported in 104 STC 44. It is further contended that the items dealt with by the petitioner are electronic theodolites whereas the entry 14 of Part F of the First Schedule contemplates only mechanical theodolites and survey instruments. Relying on the decision of the Apex Court reported in 70 STC 97, it was contended that all the items in a group should be considered in a generic sense. It was also contended that when a good was not defined in the Act it must be construed in a sense as understood in common parlance and added that in the commercial circles this commodity is understood as an electronic equipment only. It was further contended that in construing a taxing statute if the legislature has failed to clarify its meaning by use of appropriate language, the benefit must go to the tax payer and if there is any doubt as to interpretation, it must be resolved in favour of the subject and accordingly pleaded for allowing the appeal. It was also contended that this item falls under special entry under the entry of electronic goods and not under the general entry of survey instruments under entry 14 of Part F. It was contended that the levy of penalty under Section 12(3)

(b) is not proper inasmuch as there was no wilful evasion or contumacious conduct or infraction of law and therefore pleaded for deleting the penalty levied under Section 12 (3)(b).

4. The learned Special Government Pleader contended that the data contained in the catalogue of the petitioner co