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TMI Blog2011 (1) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... f Commercial Taxes, Chepauk, Chennai, in exercise of power conferred under section 28-A of the Tamil Nadu General Sales Tax Act, 1959. The impugned order reads as under: "COMMERCIAL TAXES DEPARTMENT From To Tmt. S. Malathi, I.A.S. Tvl. Simta Clear Coats Special Commissioner and. Pvt. Ltd. Commissioner of Commercial Taxes, 3/1C, Near RVS Hostel Chepauk, Chennai-600 005. Sulur-641 402 Lr. No. D. Dis. Acts Cell II/33003/06 dated 26.9.2006 Clarification No.116/06 Sir, Sub : Tamil Nadu General Sales Tax Act, 1959-Rate of tax for 'textile machine clearer roller cleaner'-'Clarification under section 28-A of the TNGST Act requested'-Reg. Ref : Tvl. SIMTA Clear Coats Pvt. Ltd., Sulur, Lr. dated June ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng press and yard bundle balling press, which reads as under: "Clarification No. 281/2002 D. Dis. Acts Cell.II/70818/2002, Date: 8.11.2002 Textile machinery such as yarn bundling press and yard bundle balling press: Yarn bundling press and yard bundle balling press are taxable at 4 per cent under entry No. 63 in Part B of the First Schedule to the TNGST Act, 1959." and clarification dated June 4, 2004 with regard to overhead travelling equipment and parts and accessories, order dated June 4, 2004, issued under section 28-A is as under: "COMMERCIAL TAXES DEPARTMENT From To Thiru Abul Hassan, I.A.S., Tvl. Elgi Electric and Commissioner of Commercial Industries Ltd. Taxes, Ezhilagam, Chepauk 737-D, Green Fields, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referring to the two entries in the First Schedule, the Appellate Assistant Commissioner gives the following reasons for reversing the order of the assessing authority: (1) Entry 81 says '(all machinery other than those specifically mentioned in this schedule)'. The goods in question, namely, 'Premier card control-L system' and 'yarn cleaner' are not mentioned in any other items of the First Schedule including 41C. (2) Decisions in F. Rose Mary Carpentry Works v. State of Madras [1964] 15 STC 924 (Mad), Commissioner of Sales Tax, U.P. v. Abdul Khaliq Mistri [1979] 43 STC 428 (All) and Pioneer Electronics v. State of Andhra Pradesh [1983] 54 STC 83 (AP) support the contention that the goods are accessories of texti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosene, (v) coal including charcoal or (vi) any other form of fuel or power, and parts and accessories of such machinery and tools used with such machinery.' Entry 41C relates to electronic system or other apparatus including parts and accessories of such goods. Therefore, if the goods in question are capable of being classified as electronic system and could be used as such or could be used in any other machinery in general, then it is possible to construe such goods as falling under entry 41C. But in this case the records show that the goods manufactured are not capable of being used by themselves. Nor is it possible to say that the goods can be utilised generally in any type of machinery or sold as general goods. On the other hand, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be open to the petitioner, to raise all the pleas before the assessing authority. 7. The contention of the learned Government Advocate on the merit is that, as the item, "textile machine clearer roller cleaner", is not part and parcel of textile machinery being detachable, therefore, it is to be classified, as the one falling under general item. Thus, no ground exists to interfere with the impugned order. 8. On consideration, I find force in the contention raised by the learned counsel for the petitioner. Section 28A of the Tamil Nadu General Sales Tax Act, 1959 reads as under: "28A. Power to issue clarification by Commissioner of Commercial Taxes.-(1) The Commissioner of Commercial Taxes on an application by a registered dealer, ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut, not the items, which cannot be used in any other machinery except textile machinery. The "textile machine clearer roller cleaner" can only be used in textile machinery and no other machinery. Learned counsel for the petitioner, therefore, is correct in contending that the impugned order, passed by the Special Commissioner and Commissioner of Commercial Taxes, cannot be sustained in law. 10. The contention of the learned counsel for the petitioner that the impugned order is arbitrary and non-speaking, also deserves to be accepted, for the reasons that even though the power exercised by the Special Commissioner and Commissioner of Commercial Taxes, was under section 28A, i.e., statutory power, but order is totally silent, with regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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