TaxTMI 
TaxTMI 
2007 (11) TMI 570
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....to BSNL and Mahanagar Telephone Nigam Limited (hereinafter called as "MTNL"), the rate of tax for sale of telecom cables to BSNL and MTNL was reduced from 12 per cent to four per cent. Subsequently, a notification was issued in G.O. Ms. No. 32, dated March 27, 2002, with effect from April 1, 2002, wherein the expression "telecom cables sold to BSNL" was varied and read as "sale of switching equipment, sound recording and transmitting equipment of every description including telephones, intercom devices, telephone cables, fibre optic cables, switch board power supply based power plant for telecom application, parts and accessories thereof and batteries of power backup systems for equipments only to BSNL". The petitioner has further submitted that the main function of the diesel generating system is to generate electricity, i.e., power, along with the other equipment such as battery, cabling, transformer, etc., which forms a power supply based power plant. The power so generated and distributed by the power plant is used in the telephone exchange for the power plant for the purpose of running the telecom installations like tower and equipments. As the issue was a recurring question ....
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...."diesel generating sets" would fall within the definition of "switch board power supply for power plant for telecom application" and under such circumstances, he ought to have obtained opinion of the technical experts, who actually deal with the goods or should have accepted the opinion given by the technically qualified person from BSNL and granted the concessional rate of tax. Relying on the decisions in Panama Chemical Works v. Union of India reported in [1992] 62 ELT 241 (MP), Assistant Collector of Customs v. East Anglia Plastics (India) Ltd. reported in [1994] 74 ELT 29 (Cal) and Collector of Customs, Bombay v. United Electrical Industries Ltd. reported in [1999] 108 ELT 609 (SC), learned counsel for the petitioner submitted that the scientific and technical meaning to a product is more relevant for classification of the item and in case of any doubt in interpreting the tariff entry occurring in taxing statute, what is understood and meant in trade parlance between the persons in the trade should be accepted and that there should not be any departure. Referring to paragraph 26 of the judgment in Panama Chemical Works v. Union of India reported in [1992] 62 ELT 241, learned c....
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....x Rules, 1959 (hereinafter referred to as "the Rules"). He further submitted that as per rule 26A of the Rules, on an application by the registered dealer in form XIV, the Commissioner of Commercial Taxes may clarify any point concerning the rate of tax under the Act and such clarification shall be applicable to the goods specified in the application submitted by the registered dealer. He further submitted that personal hearing is not contemplated under the Act and therefore, there is no need to provide hearing before deciding the application filed under the above said rule. He also submitted that the opinion of the supplier, viz., BSNL, through its letter dated June 30, 2006, is not binding on the Commissioner of Commercial Taxes, Chennai, the first respondent herein. Heard Mr. T.V. Lakshmanan, learned counsel for the petitioner and Mr. R. Mahadevan, learned AGP (T) for the respondents. The petitioner is a registered dealer and works contractor in the diesel generating system and engine alternative sets. By notification under section 17 of the Tamil Nadu General Sales Tax Act, 1959 the Government in G.O. Ms. No. 68, dated August 18, 2001 indicated as follows: "In exercise of th....
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....templated in rule 26A, a registered dealer has to submit his application in form XIV accompanied by proof of payment of required fee. In the instant case, as against the column No. 3 in the application, as to how the name of the goods for which clarification regarding rate of tax is required, the petitioner has mentioned as "diesel generating set supplied during execution of works contract to BSNL". As against column No. 5, as to how the goods is understood in common parlance or commercial circles, the petitioner has mentioned as "diesel generating sets or engine alternator sets". Column No. 4, deals with full particulars of the goods (example-its composition and predominant use, supported by a literature or brochure whichever available) and the petitioner has stated that "diesel engine coupled to AC generator as an accessory to power supply based power plant and used as alternate source of energy in the absence of normal electrical power supply". The details provided by the petitioner in column Nos. 3, 4 and 5, clearly indicate that the goods sold are "diesel generating sets". At this juncture, it is relevant to point out that the generator sets, transformers, etc., fall under ent....
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....case reported in [1994] 74 ELT 29, that in construing the relevant item or entry in fiscal statutes, if it is one of every day's use, the concerned authority must normally construe it, as to how it is understood in common parlance or in the commercial work or trade circles. But in the case on hand, when the intention of the Government is to group the goods of the same kind or nature, associated with each other, the attempt of the petitioner to introduce "generating set" into the cluster of the above mentioned goods would run contrary to the statute. Every article in the statute is referred to by its common name, because of its general use and not by its special use. The user test for determination of a goods for finding out its use, to which, it is capable of being put to, has always been held to be logical. When the user test is adopted, the general use of the goods has to be considered for appropriate levy of tax. It is settled law that in the absence of any specific definition in the statute, the word or term used in trade parlance has to be applied. Applying the above said principle to the facts of this case, "a diesel generating set", commonly used for power generation ca....
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....ts and judicial or quasi-judicial acts has been considered by this court on several occasions. In the case of Province of Bombay v. Khushaldas S. Advani [1950] SCR 621; AIR 1950 SC 222, Mahajan J., observed that the question whether an act is a judicial or a quasi-judicial one or a purely executive act depends on the terms of the particular rules and the nature, scope and effect of the particular powers in exercise of which the act may be done and would, therefore, depend on the facts and circumstances of each case. Courts of law established by the State decide cases brought before them judicially and decisions thus recorded by them fall obviously under the category of judicial decisions. Administrative or executive bodies, on the other hand, are often called upon to reach decisions in several matters in a purely administrative or executive manner and these decisions fall clearly under the category of administrative or executive orders. Even judges have, in certain matters, to act administratively, while administrative or executive authorities may have to act quasi-judicially in dealing with some matters entrusted to their jurisdiction. Where an authority is required to act judicia....