TMI Blog2008 (11) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions by the petitioner. Instead of filing objections, the petitioner has hastened to rush to this court by way of the present writ petitions. This court is of the view that the petitioner has got every right to place all the material evidence before the competent authority to prove their claim by filing objections. On a reading of the proceedings issued by the first respondent, this court does not find any infirmity or illegality in it. Though the petitioner claims that they have sufficient evidence to prove their claim, their prayer in W.P. No. 17013 of 2008 cannot be answered at this stage, as the said writ petition is not maintainable in the absence of any objection filed by the petitioner. Accordingly, this court holds that the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old under the brand name Complan . It is their further case that the product had been originally manufactured by Glaxo India Limited and the Milk and Milk Products (Control) Order, 1992 has been issued under section 3 of the Essential Commodities Act. The said Control Order regulates manufacture and sale of milk products. Accordingly, a certificate dated September 16, 1993 was issued by the Government of India, Ministry of Agriculture (Department of Animal Husbandry and Dairying), New Delhi to Glaxo India Limited, certifying that the product to be manufactured at their factory in Uttar Pradesh, viz., Complan was a milk product. After the taking over of the operations for the manufacture of Complan by the petitioner, an amended certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advance ruling on the rate of tax of Complan. But, it was rejected by an order dated June 26, 2007 by merely stating that Complan could not be classified as a milk food since it contains other ingredients. A further application was presented seeking review of the earlier order dated June 26, 2007, which had again been rejected on June 6, 2008 stating that no new facts had been produced. Aggrieved by the above order, the petitioner has come before this court by way of the present writ petitions. On the other hand, the respondents have filed a common counter stating that the petitioner who is dealing with a product by name Complan is an assessee on the file of the second respondent. They had applied to the first respondent for a clarific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has filed the writ petitions by claiming that those products would be eligible to tax at four per cent only under entry No. 82 of Part B to the first Schedule to the VAT Act as milk food or milk products on the ground that a Division Bench of this court in the case of State of Tamil Nadu v. Wander Ltd. reported in [1990] 79 STC 421 has held that Horlicks is a milk food as well as milk product. In the counter, the respondents have also stated that the petitioner had applied to the first respondent for clarification under rule 26A of the erstwhile Tamil Nadu General Sales Tax Rules, 1959 and that rule having been replaced by the present VAT Act, section 28A under the then Act which gave power to the first respondent to issue clarifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, learned counsel for the petitioner has relied on a decision of this court in State of Tamil Nadu v. Wander Ltd. reported in [1990] 79 STC 421 (Horlick's case), wherein it is held that the product Horlicks predominated in milk both in terms of weight and cost and the same was liable to be classified only as milk food. The said decision of this court was upheld by the Supreme Court. Per contra, learned Government Advocate (Taxes) for the respondents would contend that instead of filing objections and contesting the matter before the assessing authority, the petitioner has hastened to come before this court by filing writ petitions under article 226 of the Constitution of India, which cannot be maintainable. It is also contende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Complan is a milk product is the matter for consideration before the competent authority. The main question to be decided now is whether the notice in question calling for objection fixing the rate of VAT is payable at four per cent or 12.5 per cent in respect of the sale of the product Complan . The notice of objection called for by the assessing authority on the scrutiny of returns for rectifying ertain defects based on the petitioner's returns from January 2008 to March 2008 is a matter for consideration before the competent assessing authority after filing of objections by the petitioner. Instead of filing objections, the petitioner has hastened to rush to this court by way of the present writ petitions. This court is of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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