2017 (11) TMI 1876

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....iven written instructions to the learned Government Pleader (Taxes), vide letter dated 06.11.2017. 2. The petitioner is a registered dealer and involved in the business of buying and selling export/import licences such as REP licence and DEPB licence etc. The petitioner's case is that these licences fall under Entry 70 of Part B of First Schedule to the Tamil Nadu Value Added Tax Act, 2006 (hereinafter referred as "the TNVAT Act") and taxable at the rate of 5%. The petitioner is stated to have purchased these licences from registered dealers on payment of tax and has availed input tax credit under Section 19(1) of the TNVAT Act. The respondent issued a single notice dated 01.08.2017, for all the assessment years. In the said notice, th....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....rred notice dated 01.08.2017, the petitioner submitted their objections on 06.08.2017, contending that the decision in the case of Sha Kantilal Jayantilal (supra) is not applicable to them and in the said judgment, the assessee was an importer, who had utilized the DEPB licence for reducing his duty liability and the petitioner is not an importer, but a trader in such licences. 3. In support of his contention, the petitioner has referred to the decision of the Hon'ble Division Bench of the Delhi High Court in the case of Jagriti Plastics Limited vs. Commissioner of Trade & Taxes and N.F.Impex Pvt. Ltd., vs. Commissioner of Trade & Taxes in S.T.Appeal Nos.5 & 23 of 2015 dated 01.10.2015, and the clarification issued by the Commissioner of ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....dule to the TNVAT Act. 5. Further, the petitioner placed reliance on the decision of the Hon'ble Supreme Court in the case of Government of A.P. and another vs. B.Satyanarayana Rao reported in (2000) 4 SCC 262. for the proposition that the rule of per incuriam can be applied, wherein, the Court omits to consider a binding precendent of the same Court or the Superior Court rendered on the same issue or where a Court omits to consider any statue while deciding that issue. 6. Therefore, it was contended that in Sha Kantilal Jayantilal (supra), the Court omitted to note Entry 70 of Part B of First Schedule to the TNVAT Act. Therefore, it was contended that the said judgment is per incuriam and not binding. The petitioner has also participate....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....l Jayantilal (supra), were entirely different. 8. One more important aspect, which the respondent has failed to take into consideration is the advance ruling given by the authority under Section 48-A of the TNVAT Act. The said ruling is binding on the assessing officer. The assessing officer cannot get over the advance ruling unless and until, on facts, the respondent is able to establish that the said ruling will not apply to the facts of the present case. Though the petitioner had specifically raised this issue in their further reply dated 14.09.2017, the respondent has not considered the same. That apart, the respondent has relied upon a clarification issued by the Commissioner issued in favour of another dealer as early as in the year ....