TMI Blog2021 (9) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... t found certain difficulties, inconsistency and discrepancy, though not to describe further in respect of classification of Indian Musical Instruments. Situation warranted for issuing the subsequent order in G.O.Ms.No.193, dated 30.12.2006. Perusal of these two Notifications would reveal that both relatable to Indian Musical Instruments. However, in the first Notification, the details/classification of Indian Musical Instruments have not been provided and in the subsequent Notification, it is clearly stated that the exemption in respect of the tax payable by any dealer under the said Act on the sale of Indian Musical Instruments namely, Veena, Violin etc. Thus, the subsequent Notification dated 30.12.2006 is only in the nature of clarification to understand what are all the instruments falling under the head of 'Indian Musical Instruments'. The benefit of exemption is not taken away and the benefit of exemptions conferred in Notification G.O.Ms.No.45 remains in tact. The subsequent Notification was issued on 30.12.2006 enumerating the list of instruments which all are falling under the category of Indian Musical Instruments. Thus, the impugned notice dated 30.12.2006 can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... COMMON ORDER The writs on hand are filed questioning the validity of G.O.MS No.193 (CT R (B2) dated 30.12.2006 as ultravires Section 17 of the TNGST Act, Articles 14, 19 (1) (g) and 265 of the Constitution of India and liable to be declared as null and void, Clarification Lr.No.VAT Cell/8567/2008 A2 (VCC No.1510) dated 18.06.2008, Impugned Notice in CST No.818386/2005-06 dated 12.10.2007 and Impugned Notice in TNGST No.1581900/2005-06 dated 12.10.2007 on the file of the third respondent and quash the same. 2. The petitioner is a Private Limited Company incorporated under the Companies Act, 1956 and having its Registered Office at Bangalore and engaged in the manufacture and sale of Indian Musical Instruments. 3. The petitioner-Company states that they are pioneer in the field of electronic musical instruments and teaching and practice aids for music. The abovesaid Company is operating for more than about 4 decades and has designed, developed, manufactured and marketed unique Indian Musical Instruments, which operates on electronic principles, that has found wide acceptance amongst top musicians as well as Teachers, Students, Music Colleges, Universities and Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curtails and narrows down the benefit conferred by G.O.Ms.No.45/CT (B2) dated 12.02.2004, since while the Notification dated 12.02.2004 exempted all Indian Musical Instruments, the same while being superseded by Notification dated 30.12.2006 restricts it only to items enumerated in the said Notification. 7. It is contended that the Notification issued on 30.12.2006, curtailing and whittling down the benefit is made retrospectively by the delegatee viz., the State Government, which is clearly beyond the scope of its power conferred under Section 17 of the TNGST Act from 12.02.2004. 8. Relying on Section 17 of the TNGST Act, which provides power of Government to notify exemptions and reductions of tax, the learned counsel for the petitioner states that the manner in which the impugned Notification was issued classifying the Indian Musical Instruments is in violation of Section 17 itself. 9. In view of the impugned Notification dated 30.12.2006, the respondents have issued the impugned notice proposing to reject the petitioner's claim of exemption by placing reliance on G.O.Ms.No.193, dated 30.12.2006 on the ground that the said Notification is a clarification and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erely because they have shape of a tape-recorder and electronic chips fitted in, it cannot be said that they do not be called as Indian musical instruments because the functional features of the said instruments is very much that of traditional Shruthi box and traditional Tabala. It should be noted that the market for these instruments are very very marginal. There is a decline in the musical taste of the people towards the Indian music and Indian musical instruments. It is said that Shruthi box and Tabala manufactured by the assessee are very much necessary for the beginners who practice in music. In fact these instruments would play a tune for the practicing vocalist. Therefore, in order to propagate the object of Entry 15(i) of the Second Schedule of the Karnataka Sales Tax Act, 1957, to promote Indian music and Indian musical instruments, it is just and necessary to hold that all the instruments come under the definition within the purview of Entry 15(i) and should be taxed. Accordingly, the revision is dismissed. 14. Relying on the above observations made in the judgment of the Karnataka High Court in the case of State of Karnataka vs. Radel Electronics Pvt Ltd (cited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In these cases, while issuing amendment under sub-section (3) of Section 17 in G.O.Ms.No.193, dated 30.12.2006, earlier Notification was neither cancelled nor varied with retrospective effect. As a matter of fact, in the earlier Government Order, exemption was granted on the sale of Indian Musical Instruments. In the subsequent Government Order also, exemption was granted for the Indian Musical Instruments. As in the earlier Government Order, even though exemption was granted for sale of Indian Musical Instruments, they were not sufficiently enumerated which resulted in difficulty and unsettlement in identifying the said Indian Musical Instruments. In order to clarify the doubts and difficulties, these musical instruments were exclusively enumerated in the later Government Order. By this act, it cannot be said that the scope of the earlier Government Order was neither narrowed down nor curtailed nor withdrawn retrospectively. On the other hand, more clarity has been introduced and therefore, there is no question of giving retrospective effect to the earlier Government Order. 19. The electronic musical instruments as manufactured by the petitioner would squarely fall under It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hitra Veena, Gottu Vadyam, Morsing, Chancle, Triangle, Rudreveena, Sarangi, Thalam, Dholak, Dholki, Thavil, Magudi, Salangai, Sangu, Uthu, Edakka, Mathalam, Chenadi, Sruti Box, Tar Shenhai, Mohanaveena, Kanjeeris, Urumi, Kombu, Panchalogavadhyam, Mandolin, Udukku, Khol, Horns, Nagara, Jalatharangam, Villadi Vadhyam and parts and accessories thereof shall be added. 24. Perusal of these two Notifications would reveal that both relatable to Indian Musical Instruments. However, in the first Notification, the details/classification of Indian Musical Instruments have not been provided and in the subsequent Notification, it is clearly stated that the exemption in respect of the tax payable by any dealer under the said Act on the sale of Indian Musical Instruments namely, Veena, Violin etc. Thus, the subsequent Notification dated 30.12.2006 is only in the nature of clarification to understand what are all the instruments falling under the head of 'Indian Musical Instruments'. The benefit of exemption is not taken away and the benefit of exemptions conferred in Notification G.O.Ms.No.45 remains in tact. The subsequent Notification was issued on 30.12.2006 enumerating the list o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions are to be granted in judicious manner. Power of exemption is conferred in order to minimise the inequality and to mitigate the unjust circumstances and to ensure that the Constitutional principles are achieved to the extent possible. Thus, exemptions granted under any Statute is to be measured with reference to the Constitutional principles and its perspectives. Excessive or erroneous exercise of power of exemption undoubtedly would lead to unconstitutionality. The State is duty bound to ensure that exemptions are granted to mitigate the unjust circumstances and to remove the injustice in a particular issue. Thus, exemptions cannot be granted in a routine manner, so as to facilitate the large scale manufacturers to gain profits in an unjust manner. The Legislative intention of conferring power of exemption to the Government is to enforce the Constitutional principles of social justice equality in status amongst the citizen, including the economic status, which all are to be achieved. The power of exemption is to be utilised for the upliftment of the depressed, oppressed and the poor class of people and not for the purpose of granting benefit to the large profit making organis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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