COMMON ORDER

Since the issue raised in both the writ petitioners is one and the same, with the consent of the learned counsel appearing for the parties, these writ petitions were heard together and are disposed of by this common order.

2.The petitioners are the manufacturers of Tobacco products.

Though, prior to the 2006-2007 Assessment Year, they involved in manufacturing of some other Tobacco product, only from the Assessment year 2006-2007, they claimed to have started producing the product called “Chewing Tobacco”. The said product 'Chewing Tobacco' has not been included in the schedule appended to the Tamil Nadu Value Added Tax Act, 2006 (in short, 'the TNVAT Act'), thereby, the said product is not a taxable item.

3.Accordingly, insofar as the Assessment Year 2007-2008 is concerned, the Assessment has been made in respect of these two petitioners.

4.Subsequently, by amendment made to the TNVAT Act, 2006, by Act 30 of 2011 in Section 3, the following has been inserted :

“3.In the Second Schedule to the principal Act, after Serial number 12 and the entries relating thereto, the following Serial Number and entries shall be inserted, namely:

“13.(i) Unmanufactured tobacco, tobacco refuse;

(ii) Gutkha, Pan masala;

(iii)Cigars and Cheroots and Cigarettes, Cigarillous of tobacco or of tobacco substitutes;

(iv) Hooka/ hoodku tobacco;

(v)Smoking mixtures for pipes and cigarettes;

(vi) Homogenised or reconstituted tobacco;

(vii) Chewing tobacco;

(viii)Preparations containing chewing tobacco;

(ix) Jarda, Scented tobacco;

(x) Snuff of tobacco and preparations containing snuff;

(xi) Tobacco extracts and essence;

(xii) Cut tobacco;

(xiii) Any other tobacco product, not specified in any of the Schedules.”

5.By virtue of this amendment in the second schedule to the TNVAT Act, after Serial No.12, the Serial No.13 with various products as enumerated herein above had been inserted, wherein, in Serial No.

(vii), the product 'Chewing Tobacco' is found placed.

6.Therefore, the 'Chewing Tobacco' also has been inserted in one of the product in the second Schedule to the TNVAT Act, at Serial No.13, thereby, the product also has become liable to be taxed. In this regard, a Government Order has been issued, whereby, the applicability of the amended provision, is made from the date 12.07.2011, by G.O.Ms.No.76, dated 11.07.2011.

7.Thereby, the product called 'Chewing Tobacco' has become a taxable item, only with effect from 12.07.2011.

8.It is to be noted that as against the insertion of the said product, the Association of the Tamil Nadu Scented & Chewing Manufacturers Association and others, filed writ petitions in W.P.(MD)No.21237 of 2011 etc., batch, where from 15.09.2011, there has been an interim order of stay and those writ petitions were pending up to 2019, as those writ petitions were finally disposed of only on 03.10.2019, by a common order passed by a learned Judge of this Court in the matter of Tvl.Makkal Stores v. The State of Tamil Nadu represented by the Secretary, Commercial Taxes and Registration Department, Chennai-09 and others. In the said Judgment, ultimately, the impugned amendment was held to be valid, thereby the stay granted by the Court earlier was vacated.

9.Therefore, the said product namely, 'Chewing Tobacco', has become a taxable item from 12.07.2011 and it is further to be noted that, after sometime in the year 2012, the Government banned the production of the said item itself.

10.Only with the aforesaid background of the case, it is the case of the petitioner that, insofar as the Assessment Year 2007-2008 is concerned, though the petitioners manufactured the said product 'Chewing Tobacco', that was not one of the item to be taxed under the provisions of the TNVAT Act, as admittedly, the said product has been introduced or inserted in the Schedule as mentioned above only with effect from 12.07.2011. Therefore, if at all, any tax to be levied on the petitioners for the said product, the same should have been levied only from 12.07.2011 and not fo