TMI Blog2011 (11) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... al Sales Tax Act, on the ground that the imported raw sugar and the processed and manufactured white sugar out of the imported raw sugar are two different commercial commodities; that sale of white sugar assessable under Chapter 1701 of the Central Excise Tariff is covered under entry I, Part A of the Schedule III of the Tamil Nadu General Sales Tax Act, thus qualifying for exemption from payment of sales tax. By proceedings dated May 29, 2008, the Commercial Tax Officer, Nungambakkam Assessment Circle, issued a notice, proposing assessment at the rate of four per cent rate of tax, called upon the petitioner to furnish details of disposal of the imported sugar, apart from assessability of tax at four per cent, the assessment would also result in the levy of penalty at 150 per cent under section 12(3)(a). The petitioner replied to the same on June 23, 2008 and gave the details of raw sugar imported, processed into white sugar and the sales made therein. The petitioner took the contention that white sugar sold being a different commercial commodity from the imported raw sugar, the question of levying tax at four per cent did not arise. In the reply dated March 9, 2011, it also narrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Excise (Goods of Special Importance) Act, 1957 only by way of identifying the goods which qualify for grant of exemption, he referred to the various processes that the raw sugar imported undergoes as amounting to manufacture, that the sale of white sugar is not the same as what is imported, to fit in with the entry under the First Schedule. Referring to the Indian Standard Raw Sugar Specification issued by the Bureau of Indian Standards, learned counsel submitted that given the fact that the clarification clearly points out to the different nature of commodity dealt with by the assessee after import, the respondents should have considered the various processes that the raw sugar has undergone as a distinct marketable commodities, to emerge as white sugar. Per contra, learned Special Government Pleader appearing for the respondent/Revenue, reiterating the contention in the counter-affidavit, submitted that since the petitioner had not shown any material that the sugar dealt with by the petitioner had suffered additional duties of excise, the same would clearly vindicate the stand of the Revenue denying the claim for exemption. Heard learned counsel appearing for the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;sugar' means any form of sugar in which the sucrose content, if expressed as a percentage of the material dried to constant weight at 105 C would be more than 90. Clause ,(2) therein excludes certain types of sugar from the applicability of the Chapter. Thus a reading of an enumerated entry in Chapter 17 of the Additional Duties of Excise Act shows that as far as sugar in or in relation to the manufacture of which no process is ordinarily carried on with the aid of power is concerned, the rate of duty given therein is nil . The additional duty rates as given in Appendix IV-First Schedule, in all other cases, is ₹ 21. Thus, a reading of provisions as contained in Chapter 3 of the Tamil Nadu General Sales Tax Act shows that as far as the consideration on exemption under the Third Schedule is concerned, all that we need to look at therein is not as to whether sugar to be exempted under the Sales Tax Act has suffered additional duties of excise duty levy, but whether what is sold by the petitioner fits in with the description given under the First Schedule to the Additional Duties of Excise Act. In so identifying the goods, the question of entering into an enquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. In any event, as rightly pointed out by the learned counsel appearing for the petitioner, in the light of the decision of the apex court reported in (1980) 46 STC 256 (SC) (Delhi Cloth and General Mills Co. Ltd. v. State of Rajasthari), the question of exemption has to be seen not in the background of whether the goods have suffered liability under the Additional Excise Duty. The relevance of sufferance of liability under the Additional Duties of Excise and the sharing of the collection between the Union and the State, however, does not, in any manner, stand in the way of grant of exemption. In the circumstances, when the entries under the Third Schedule make no reference to the sufferance of additional duties of excise and that the identification of goods is only by a reference to the provisions under the Additional Duties of Excise (Goods of Special Importance) Act, I do not agree with the submission made by the Revenue that only goods which suffered additional duties of excise, qualify for exemption. Thus going by the definition under the Central Excise Tariff of India 2003-04 and 2004-05, sugar, in all forms, manufactured and produced in India would fall under the Third Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s further made clear that going by the description of the entry in Part A of the Third Schedule, all that the respondents need to look at is as to whether the goods answer the description as enunciated in the First Schedule column 3 of the Additional Duties of Excise Act and nothing beyond. In the circumstances, I have no hesitation in setting aside the order impugned in this writ petition. As regards the objection of the Revenue that alternative remedy is available to the petitioner, it is no doubt true that the Act provides for an alternative remedy of filing an appeal. In a recent decision reported in (2011) 5 SCC 697 (Union of India (UOI) v. Tantia Construction Private Limited), on the issue of maintainability of a writ petition in the face of an alternative remedy provided under the Act, the apex court held that the presence of an alternative remedy is not an absolute bar in entertaining a writ petition. The apex court considered the decisions reported in(2003) 2 SCC 107 (Harbanslal Sahnia v. Indian Oil Corporation Ltd.), (2001) 10 SCC 491 (Modern Steel Industries v. State of U. P.), (2010) 3 SCC 321 (Hindustan Petroleum Corporation Limited v. Super Highway Services), (2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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