TMI Blog2021 (7) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Act 58 of 1957) . Therefore, Third Schedule stipulates goods exempted from tax. Intra-ocular lenses - HELD THAT:- Part-B is relevant. Item No.2 of Part-B denotes aids for physically disadvantaged persons as notified by the Government . Item No.2 did not prescribe any goods within the meaning of Section 8 of the TNGST Act. Section 8 contemplates 'goods specified in the Third Schedule'. However, Item No.2 of Part-B did not prescribe any goods. Contrarily, the said Item states that such goods, which all are aids for physically disadvantaged persons are to be notified by the Government. Therefore, Item No.2 Part-B is a general exemption granted, as far as the aids for physically disadvantaged persons are concerned and what all are the aids which all are exempted were notified by the Government in G.O.No.30 dated 27th March, 2005 - This Court has no doubt with reference to the language adopted in Item No.2 of Part-B of the Third Schedule to the TNGST Act, which contemplates aids for physically disadvantaged person . The aids for physically disadvantaged may be many in numbers. However, such aids notified by the Government alone are exempted under the statute more spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 29015 of 2011, 17 of 2014, 29404 of 2015, 22822 & 22823 of 2016, 762 & 763 of 2017, 3802, 11345 to 11347, 13428, 15964 & 16833 of 2018 - - - Dated:- 15-7-2021 - And W.P.(MD).Nos.4527 of 2009 5612 5613 of 2014 And M.P.Nos.1 of 2008 (In 5 cases), 1 of 2009, 1 of 2011 (In 3 cases), 1 of 2014, 1 of 2015 2 of 2008 And W.P.M.P.No.43397 of 2004 W.V.M.P.No.340 of 2007 And M.P.(MD) Nos.1 of 2009 1 of 2014 (In 2 cases) Honourable Mr. Justice S.M.Subramaniam For the Petitioner (In W.P.No.4355 of 2008 W.P.(MD) No.4527 of 2009) : Mr.P.Rajkumar For the Petitioner (In W.P.No.36068 of 2004) : Mr.S.N.Kirubanandam For the Petitioner (In W.P.Nos.16051 of 2005 9011 of 2008) : Ms.Lakshmi Sriram For the Petitioner (In W.P.No.4563 of 2008 21104 of 2009 W.P.(MD) Nos.5612 5613 of 2014) : Mr.N.Inbarajan For the Petitioner (In W.P.Nos.5830, 5831, 8396 of 2008, 29013 to 29015 of 2011 17 of 2014) : Mr.P.Rajkumar For the Petitioner (In W.P.No.29404 of 2015) : Mr.R.Senniappan For the Petitioner (In W.P.Nos.22822 22823 of 2016, 762 763 of 2017 3802 of 2018) : Mr.Hari Radhakrishnan For the Petitioner (In W.P.Nos.11345 to 11347, 13428, 159 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present writ petitions. 5.To substantiate the said contentions, the learned counsels for the petitioners reiterated that absolutely there is no conditional exemption and therefore, the stand taken by the respondents is directly in contradiction with the exemption granted under the statute. The Commissioner of Commercial Taxes, issued clarifications as early as in the year 2011 stating that the sale of Intra-ocular lenses is generally exempted and therefore, the subordinate authorities cannot impose sale tax on the sale of Intra-ocular lenses. In spite of the clarifications issued by the Commissioner of Commercial Taxes in the year 2011, many of the executives are demanding sale tax and thus, the petitioners have approached this Court. 6.The petitioners solicited the attention of this Court with reference to the exemption clause contemplated under Section 8 of the TNGST Act. Section 8 enumerates that subject to such restrictions and conditions as may be prescribed, a dealer who deals in the goods specified in the Third Schedule shall not be liable to pay any tax under the TNGST Act in respect of such goods . 7.It is contended that as contemplated under Section 8 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittedly, Government issued G.O.No.30, dated 27th March, 2002 including Intra-ocular lenses under the exemption clause. Therefore, if the Intra-ocular lenses are sold to physically disadvantaged persons directly, then alone exemption would be applicable and not otherwise. In other words, it is contended that Intra-ocular lenses sold by the manufacturer to the dealer are not exempted and dealer to the hospital are also not exempted and if the hospital is able to establish that such Intraocular lenses are sold to the patients directly and if it could able to provide some proof for such sale, then the exemption clause would be applicable. 12.At the out set, it is contended that if anybody including a dealer or hospital selling the Intra-ocular lenses directly to the physically disadvantaged persons, then exemption clause would be applicable and in respect of other sales between the manufacturer and dealer, the exemption is not available. This being the condition within the provision, there is no irregularity or illegality on the part of the respondents in imposing sale tax with reference to the transactions made by the petitioners, which all are admittedly, not directly to the ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not with reference to goods but with reference to the industrial unit. So long as it is (i) a large or medium scale industry and (ii) it manufactures and sells goods within the five years of its going into production, the sale of such goods is exempt irrespective of the nature or classification of goods. Similar goods may be manufactured by another unit but if it does not satisfy the above two requirements, the goods manufactured and sold by it would not be entitled to exemption from tax. Indeed, the goods manufactured by that very unit would not be eligible for exemption if they are manufactured after the expiry of five years from the date it goes into production and/or sells them beyond the said period. The period of exemption may also vary from unit to unit depending on the date of commencement of production in each unit. For the above reasons, we are of the opinion that the exemption granted under the aforesaid government order does not satisfy the requirements of Section 8(2- A). ............ 11.We may now refer to and examine the basis on which the judgment under review holds that the exemption granted by Jammu Kashmir Government Order No. 159 is a general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be reviewed. We are also of the opinion that in the interest of law, it is necessary that the said error is rectified. 14.Relying on the principles laid down by the Hon'ble Supreme Court of India in the judgment cited supra, the learned Government Advocate for the respondents reiterated that the exemption contemplated under the TNGST Act is unambiguous, as the aids for physically disadvantaged persons alone are exempted. Thus, the Intra-ocular lenses only if sold to the physically disadvantaged persons, then alone the exemption could be applicable and not otherwise. 15.In reply, the learned counsels for the petitioners relying on the very same judgment in Pine Chemicals Ltd. (supra) referred to the following paragraph:- ..........inasmuch as it was not a case where goods were totally exempt from tax . It was a case where the exemption operated or was attracted only if it was established that such goods were manufactured in a large or medium industrial unit within five years of its going into production and were sold within that period. As pointed out hereinbefore, the exemption was not with reference to goods but with reference to the unit manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing aids and hearing-aid cords; (ii) simple spectacles sold to Government for distribution at Government Free Eye Camps; (iii) Crutches, wheel chairs, support sticks of all materials, prosthetics, artificial limbs and parts and three wheelers with or without motor used by physically handicapped person and cycle carriage for invalid persons; (iv) Intra-ocular lenses; and (v) Orthotics. 20.Certain goods notified by the Government are capable of being sold directly to the physically disadvantaged persons. Certain goods cannot be sold directly, as such goods require an implantation by a qualified Ophthalmologist Surgeon. Irrespective of these factors, the Court has to find out for the purpose of grant of exemption from sale tax and such technicalities regarding the medical implantation of the goods or otherwise may not be required, nor concerned. However, it is admitted that Intraocular lenses are exempted from sale tax as per Item No.2 of Part-B of the Third Schedule to the TNGST Act. 21.This Court has no doubt with reference to the language adopted in Item No.2 of Part-B of the Third Schedule to the TNGST Act, which contemplates aids for physically disadvantaged person . Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 21 of the Constitution of India. Thus, the State is bound to extend decent medical facility for the welfare of the citizen in general. In this context, free medical treatments are also provided by the appropriate Government. Therefore, the aids for physically disadvantaged persons are once exempted and particular goods are notified pursuant to the general exemption granted in Item No.2 of Part- B of the Third Schedule, there cannot be any further restrictions or conditions for the sale of such Intra-ocular lenses, as it finally reaches to the physically disadvantaged persons and thus, this Court is of an opinion that the concept of conditional exemption as contemplated by the respondents is not traceable in any of the provisions of the TNGST Act, nor in the notification. Once the goods are exempted under the TNGST Act, then it is to be exempted under the CST Act also in view of Section 8 of the CST Act. 24.This being the constructive interpretation to be adopted in respect of such exemption, which all are granted for the benefit of the group of people in general, this Court is of the opinion that if any such presumptive condition is accepted, the same will cause inconven ..... 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