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2019 Supreme(Mad) 2627
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ANITA SUMANTH, J.
Magna Cranes Pvt. Ltd., Represented by its Managing Director, G. Vasu
Versus
State of Tamil Nadu, Represented by Secretary Commercial Taxes Department, Chennai & Others
W.P. No. 12487 to 12491 of 2009
Decided on : 12-09-2019
Advocate Appeared:
For the Petitioner:Lakshmi Sriram, Advocate.
For the Respondent: Mohd. Shafiq, Special Government Pleader.
The main legal point established is that the classification of goods for concessional rate of tax and the veracity of a Declaration under Form XVII are crucial in determining the entitlement to a concessional rate of tax.
Headnote:
EOT Cranes - Sales Tax - Tamil Nadu General Sales Tax Act, 1959, Section 3(5), Section 28A - The court discussed the provisions of Section 3(5) granting a beneficial rate of tax, the classification of cranes as machineries, and the veracity of a Declaration under Form XVII. The court also highlighted the settled law that once a Form XVII declaration is issued, the question of whether the seller is entitled to a concessional rate of tax cannot be questioned.
Fact of the Case:
The petitioner challenged show cause notices and a clarification issued by the Special Commissioner of Commercial Taxes regarding the concessional rate of tax for sales of EOT cranes and gantry cranes.
Finding of the Court:
The court found that EOT cranes and gantry cranes are classified as machineries and are eligible for a concessional rate of tax under Section 3(5) of the Act. The court also quashed the clarification and show cause notices based on the same.
Issues: The issues revolved around the classification of cranes, the validity of the clarification issued by the Special Commissioner, and the entitlement to a concessional rate of tax.
Ratio Decidendi: The cranes were classified as machineries, and the court relied on the settled law that once a Form XVII declaration is issued, the entitlement to a concessional rate of tax cannot be questioned.
Final Decision: The court allowed the writ petitions and quashed the clarification dated 12.09.2006 and the show cause notices issued based upon the same.
JUDGMENT :
(Prayer in WP.Nos.12487 to 12490 of 2009:- Writ Petitions filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records of the 3rd respondent in TNGST 1520404/2003-04 dated 16.03.2009 TNGST 1520404/2004-05, 2005-06 & 2006-07 dated 17.09.2007 quash the same and further direct the third respondent not to levy a higher rate of tax of 12% by disallowing the Form XVII declaration and not to levying surcharge of 5% on the disputed tax relating to the sale of EOT Cranes.
Prayer in WP.No.12491 of 2009:- Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari, calling for the records of this case from the file of the 2nd respondent issued under Section 28A of the Act in LR No.D.Dis Acts Cell II/66320/04 dated 12.09.2006/Clarification No.113/2006 and quash the same.)
1. This batch of five writ petitions challenges four show cause notices dated 16.03.2009 & 17.09.2007 relating to the periods 2003-04 and 2004-05 to 2006-07 respectively and W.P.No.12491 of 2009 challenges a clarification issued by the Special Commissioner of Commercial Taxes dated 12.09.2006 in Clarification No.113 of 2006.
2. The petitioner had effected sales of EOT cranes and gantry cranes to its customers, who are large scale manufacturing units, including automobile manufacturers and entities engaged in the cutting of granite. The cranes are customized specifically to the requirements of the purchaser and stood permanently at the site of the customer.
3. In respect of the periods in question, that is 2003-04 to 2006-07, orders of assessment were initially passed on 26.04.2005, 06.06.2006, 4.01.2007 and 28.11.2008 respectively. The petitioner had, for the aforesaid periods, sought concessional rate of tax in terms of Section 3(5) of the Tamil Nadu General Sales Tax Act, 1959 (in short 'Act'). The provisions of Section 3(5) grant a beneficial rate of tax in certain enumerated circumstances that being (i) the transaction of sale should relate to goods mentioned in the 8th schedule, (ii) the sale should be to a dealer for installation of and use in his factory situated within the State of Tamil Nadu for manufacture. Such declaration, in terms of Form XVII had been obtained from the purchaser confirming the position that the goods had been used in the activity of manufacture.
4. The original assessments were sought to be revised by way of the impugned pre-revision notices, based on clarification dated 12.09.2006, issued by the Special Commissioner to the effect that various kind of cranes would not be covered under the 8th schedule and hence, a transaction involving supply of cranes would be eligible for concessional rate of tax under Section 3(5) of the Act. This aforesaid clarification is under challenge before me.
5. Having heard learned counsel for the petitioner and learned counsel for the respondent, I am of the view that these petitions deserves to be allowed straight away. EOT cranes and gantry cranes counts to be machineries. Moreover, part D of the Ist Schedule to the Act as applicable to the period 1993-94, had classified machineries of all kinds, other than those specifically mentioned in the schedule, operated by various forms of powers to include cranes.
6. The Sales Tax Appellate Tribunal in order dated 18.09.2000 while considering the appeals of the petitioner for the period 1995-96 to 1996-97 was concerned with whether cranes would be liable to be classified as machineries or as lifts and hoists. After an in depth consideration of the matter including consideration of technical definitions of the aforesaid terms and a Report from the Indian Institute of Technology, the Tribunal concluded that the goods in question would be liable to be classified as cranes. The relevant entry in this regard is also supportive of this position and states as follows:
35. Original Entry From 12-3-1993
Machineries of all kinds (other than
