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2021 Supreme(Mad) 1834
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. SUBRAMANIAM, J.
M/s. Radel Electronics Pvt. Ltd. – Petitioner
Versus
The Government of Tamil Nadu, Rep. by its Secretary and Others – Respondents
W.P. Nos. 16595 to 16598 of 2008, M.P. No. 1 of 2008
Decided On : 03-09-2021
Advocate Appeared:
For the Petitioner: P.M. Anuradha.
For the Respondent: V. Nanmaran.
Headnote:
Tamil Nadu General Sales Tax Act, 1959 - Section 17- Companies Act, 1956 - Constitution of India,1950 – Articles 226, 14, 19(1)(g) and 265 - Issuance of a Writ of Certiorari – quash - Petitioner is a Private Limited Company incorporated under the Companies Act, 1956 and having its Registered Office at Bangalore and engaged in manufacture and sale of Indian Musical Instruments – Petitioner Company states that they are pioneer in field of electronic musical instruments and teaching and practice aids for music - Above said Company is operating for more than about decades and has designed developed manufactured and marketed unique Indian Musical Instruments which operates on electronic principles that has found wide acceptance amongst top musicians as well as Teachers, Students Music Colleges, Universities and Government Institutions such as across the country - Department of Secondary Education in Karnataka has permitted these instruments to be used in music examinations - Held, In these cases as discussed in the aforementioned paragraphs exemptions granted by invoking Section 17 of TNGST Act remains as it is in respect of Indian Musical Instruments and the impugned Notification dated was issued to clarify the Indian Musical Instruments which all are falling under the exemption clause notified in and therefore, the subsequent Notification is a clarificatory in nature and cannot be construed as cancellation of the exemption granted in very Government Notification would reveal that it is also relatable to Indian Musical Instruments and what are all the instruments which all are falling under category are enumerated for purpose of removing the doubts for levying tax - Petition Dismissed.
ORDER :
Prayer: W.P. No. 16595 of 2008 is filed Under Article 226 of the Constitution of India, for the issuance of a Writ of Declaration, declaring the impugned G.O.Ms. No. 193 [CT&R (B2)] dated 30.12.2006 as ultra-vires Section 17 of the TNGST Act, Article 14, 19(1)(g) and 265 of the Constitution of India and therefore requires to be declared invalid.
W.P. No. 16596 of 2008 is filed Under Article 226 of the Constitution of India, for the issuance of a Writ of Certiorari, calling for the records comprised in Clarification LR. No. VAT Cell/8567/2008 A2 (VCC No. 1510) dated 18.06.2008 on the file of the first respondent and quash the same.
W.P. No. 16597 of 2008 is filed Under Article 226 of the Constitution of India, for the issuance of a Writ of Certiorari, calling for the records comprised in Impugned Notice in CST No. 818386/2005-06 dated 12.10.2007 on the file of the third respondent and quash the same.
W.P. No. 16598 of 2008 is filed Under Article 226 of the Constitution of India, for the issuance of a Writ of Certiorari, calling for the records comprised in Impugned Notice in TNGST No. 1581900/2005-06 dated 12.10.2007 on the file of the third respondent and quash the same.
1. The writs on hand are filed questioning the validity of G.O.Ms. No. 193 [CT&R (B2)] dated 30.12.2006 as ultra-vires Section 17 of the TNGST Act, Articles 14, 19(1)(g) and 265 of the Constitution of India and liable to be declared as null and void, Clarification LR. No. VAT Cell/8567/2008 A2 (VCC No. 1510) dated 18.06.2008, Impugned Notice in CST No. 818386/2005-06 dated 12.10.2007 and Impugned Notice in TNGST No. 1581900/2005-06 dated 12.10.2007 on the file of the third respondent and quash the same.
2. The petitioner is a Private Limited Company incorporated under the Companies Act, 1956 and having its Registered Office at Bangalore and engaged in the manufacture and sale of Indian Musical Instruments.
3. The petitioner-Company states that they are pioneer in the field of electronic musical instruments and teaching and practice aids for music. The abovesaid Company is operating for more than about 4 decades and has designed, developed, manufactured and marketed unique Indian Musical Instruments, which operates on electronic principles, that has found wide acceptance amongst top musicians as well as Teachers, Students, Music Colleges, Universities and Government Institutions such as Akashvani, across the country. The Department of Secondary Education in Karnataka has permitted these instruments to be used in music examinations.
4. The learned counsel for the petitioner contended that the petitioner had claimed exemption on the sales of the Indian Musical Instruments in terms of G.O.Ms. No. 45/CT(B2) dated 12.02.2004, which exempted sales of Indian Musical Instruments. The said Notification reads that “exemption in respect of tax payable by any dealer on the sale of Indian Musical Instruments.” Thus, any item which qualifies as Indian Musical Instrument is eligible for exemption. The said Notification does not impose any further condition such as the composition of the instrument or the source/mode of operation of the instrument to qualify for the exemption.
5. The said Notification issued in G.O.Ms. No. 45, dated 12.02.2004, under Section 17 of the TNGST Act was superseded by G.O.Ms. No. 193 [CT&R (B2)] dated 30.12.2006. The said Government Order reads as under:
“Notification IX:
G.O.Ms. No. 193, Commercial Taxes and Registration (B2) dated the 30th December, 2006 No. II(1)/CTR/58(h-10)/2006 - In exercise of the powers conferred by sub section (1) of Section 17 of the Tamil Nadu General Sales Tax Act, 1959 (Tamil Nadu Act 1 of 1959) and in super-session of the Commercial Taxes Department Notification No. II (1) CT/72(a-5) 2004, published in Part II-Section 1 at page 3 of the Tamil Nadu Government Gazette Extraordinary, dated 12th February, 2004, the Governor of Tamil Nadu hereby makes an exemption in respect of tax payable by any dealer under the said Act, on
