TaxTMI 
TaxTMI 
2020 (3) TMI 253
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....) Department, Chennai in G.O.(Ms) No.238, Animal Husbandry Dairy and Fisheries (FS-3) Department dated 11.12.2017 and consequential order of the 2nd respondent namely, the Director of Fisheries, Chennai, in R.C.No.21066/J4/2007 dated 19.02.2018 and quash the same and direct the respondents to issue allotment to the petitioner's bunk towards supply of sales tax exempted diesel. 2. The affidavit of K.R.Selvakumar, Proprietor, Fishermen Corporative Oil Dealers, having diesel bunk in fishing harbour Kasimedu, Royapuram, Chennai, filed in support of W.P.No.5246 of 2018 is taken up for consideration and examination. 3. The affidavits filed in support of the other writ petitions have also raised the same grounds to challenge the Government Order in G.O.(Ms).No.238 of 2017 and the Notification dated 19.02.2018. The respondents have also filed a common counter affidavit questioning the grounds raised by the Writ Petitioners. 4. In the affidavit filed by K.R.Selvakumar in W.P.No.5246 of 2018, it had been stated that he is running a Diesel Bunk in the marine outlet in the Fishing Harbour, Royapuram, Chennai, from the year 1990. He has been a dealer of Indian Oil Corporation. He s....
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.... present Writ Petitions have been filed questioning the said Government Order. 6. In the counter affidavit filed by the Director of Fisheries, it had been stated that the writ petitioners own diesel bunk in the Fishing Harbour / Port surrounding areas and they supply diesel to fishing boats to carry out fishing operations. It had been stated that originally, the Government, by G.O.Ms.No.550, Animal Husbandry Dairy and Fisheries Department, dated 12.11.1990, granted assistance in the form of reimbursement of Central Excise Duty levied on high speed diesel oil used by mechanized fishing vessels with length below 20 metres. One of the important conditions stipulated in the said Government Order was that the mechanized fishing vessels must be registered with the State Fisheries Department and they should draw oil from the diesel retail outlets maintained by TNFDC or Fishermen Co-operative Society or Co-operative Federation or any other Government undertaking within the fishery harbour complex. 7. It was stated that W.P.No.18231 of 1991 was filed by M/s.Sarojini Oil Delears, a private oil dealer, Chennai. This Court had issued interim orders on 03.07.1992, stating that the same be....
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.... only 10% to private diesel bunks W.P.Nos.16993 and 16994 of 2007 and W.P.No.24500 of 2008 were filed. On 15.06.2010, a learned Single Judge of this Court ordered that the authorities are bound to supply without discrimination subject to the limits specified in the Government Order. Thereafter, the Department of Fisheries filed W.A.Nos.1798, 1799 and 1800 of 2011. The Division Bench stated that if the Government in public interest decides to restrict the tax exemption diesel for sale of diesel to the fishermen only to bunks run by TNFDC and TAFCOFED, then necessary modification will have to be brought in the Government Order. It had been further stated in the counter affidavit that the Director of Fisheries had obtained legal advise that the Government may amend the Government Order to restrict the tax exemption for sale of diesel only to Government operated outlets. It was stated that allotment made to private bunks was increased from 36 KL to 44 KL from July 2017. It was therefore stated that no bias was shown in the allotment of diesel. Thereafter, the Government of Tamil Nadu had issued an amendment order vide G.O.Ms.No.238, Animal Husbandry Dairy and Fisheries Department dated....
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....nal Advocate General for Mr.M.Hariharan, learned Additional Government Pleader for R1 to R3. 12. The Writ Petitioners are running diesel bunks in fishing harbours at Chennai, Nagapattinam, Thanjavur, Pudukottai, and Ramanathapuram. They are all dealers of Oil Marketing Companies. They supply high speed diesel, which is required by fishermen who operate mechanized boats and motorized country boats and use them for fishing purposes. They have been supplying high speed diesel to an extent of 44 KL per month. 13. It has been stressed by Mr.L.Chandrakumar, and Mr.K.Sakthivel, learned counsels for the writ petitioners, that the petitioners are supplying high speed diesel only to the fishermen who operate mechanized boats and motorized country boats. It has been very specifically further stressed that the writ petitioners do not supply diesel to any 3rd party outside the area of the fishing ports. The only customers are the fishermen who operate the mechanized boats. Therefore they do not have the benefit of other diesel bunks which cater to every customer who has access to the diesel bunks. It is further stated that the 3rd parties / private operators / other customers do not even ....
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....ions were not imposed by the Government Orders, under the guise of memo / recommendations, the respondent cannot impose such restrictions. From the facts placed before us, we also see that there is more demand in the areas where Authorized Private Dealers operate and the Government outlets are unable to sell their indented quota. Therefore, the argument that when sale is made, the revenue goes directly to the Government Agency cannot be applicable to the present facts. Because of the restriction imposed, the objects of the Government Orders are defeated. Not even a single case where there is misuse of the exemption in the sale made by Authorized private outlets is reported before this Court. Therefore, mere apprehension cannot be the ground for imposing restrictions, not contemplated under the Government Orders. The indent itself contains check and balance measures. 25. Therefore concurring with the view of the learned Single Judge and keeping in mind the public interest, we hold that the actions of the appellants are discriminatory and arbitrary and affirm the common order dated 15.06.2010. However, we make it clear that the Government if in pub....
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.... boats and supply of the Mechanized fishing boats, providing fish storage facilities and providing cold storage facilities, erecting Ice plants and net making plants, supply of fish to the consumers in a hygienic condition at reasonable price." (Emphasis Supplied) 16. It was also stated after referring to G.O.Ms.No.5, Animal Husbandry, Dairying and Fisheries (FS-3) Department, dated 28.06.2017, as follows: "6. In the Government Order seventh read above, orders were issued, i. to enhance the quantity of supply of Sales Tax exempted High Speed diesel oil from 15,000 litres to 18,000 litres per boat for 5000 mechanized boats. The maximum limit allowed is 90,000 Kilo litres per year for 5,000 mechanized boats; ii. to enhance the quantity of supply of Sales Tax exempted High Speed diesel oil from 3,600 litres to 4,000 litres per year per boat for 15,200 motorized traditional boats. The maximum limit allowed is 60,800 Kilolitres per year for 15,200 motorized traditional boat; and iii. to sell the Sales Tax exempted high speed diesel oil to the fishermen through the diesel bunks run by the Tamil Nadu Fisheries Development Corporation Limited (TNFD....
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....ed by the impugned G.O.Ms.No.238 dated 11.12.2017. This amendment is the grievance of the writ petitioners. 21. The learned counsel Mr.L.Chandrakumar, pointed out the above amendment, and stated that the amendment excluding the diesel bunks owned by the petitioners, from grant of exemption of sales tax on sale of high speed diesel oil for fishermen, has to be interfered with by this Court on the ground that, they violated the spirit of the order of the Division Bench of this Court in W.A.Nos.1798, 1799 and 1800 of 2011. It was stated that the Division Bench had observed that there is more demand in the areas where the Authorized Private Dealers operate and that the Government outlets are unable to sell their indented quota. It was stated that because of the restriction imposed, which was challenged in the Writ Appeals, the objectives of the Government order are defeated. It was also pointed out by the Division Bench that not even a single case of misuse of the exemption in the sales made by Authorized Private Outlets had been reported before this Court. 22. This decision of the respondents in completely excluding diesel bunks run by the petitioners from purview of exemption i....
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.... followed still the Court can examine whether the ultimate decision is consistent with the requirement of Article 14 of the Constitution." 25. The learned counsels also relied on 1999 (3) MLJ 347, S.Pappa and Ors. V. Government of Tamil Nadu, and Ors, wherein, it had been stated as follows: "31. ......Likewise, even though it is stated in many places that the first impugned Order as well as the subsequent Orders were emanated in view of the policy decision of the Government, it is settled law that even the policy decision cannot violate the fundamental rights enshrined in Articles 14 and 16 of the Constitution of India. In this regard, it is worthwhile to refer a decision of the Hon'ble Supreme Court reported in K.Narayanan V. State of Karnataka (1991) 1 SCC. (Supp) 44, wherein their Lordships have held thus: "... A policy decision taken by the Government is not liable to interference, unless the court is satisfied that the rule-making authority has acted arbitrarily or in violation of the fundamental rights guaranteed under Articles 14 and 16...." I have already demonstrated how the impugned Order is violative of Articles 14,16 and 39(d) of the Co....
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....ustries Development Corporation Limited. Since that decision was taken pending the writ petition, the relief was amended to challenge the order debarring the writ petitioner and forbearing them from supplying detergent powder. On the facts of that case, the learned Single Judge of the Calcutta High Court held that Principles of Natural Justice should have been followed and grounds for cancellation should also be reasonable and not arbitrary. 29. In the instant case, the grounds for issuing the impugned Government order has been stated in the Government order itself as follows: "4. ......All the diesel bunks being operated by Tamil Nadu Fisheries Development Corporation Limited and Tamil Nadu State Apex Fisheries Co-operative Federation Limited are located inside the Jetty / Port-area and are exclusively catering to the needs of the fishermen and not authorized to sell diesel to the other public whereas there in no such restriction on private diesel bunks. Further, the Director of Fisheries is also the Managing Director of Tamil Nadu Fisheries Development Corporation Limited and Functional Registrar of the Tamil Nadu State Apex Fisheries Co-operative Federation Limited i....
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....V. Government of Tamil Nadu, and Ors, the Writ Petitioners were Secondary Grade Teachers who had been appointed and whose appointments had been approved by the District Educational Officer. The other petitioners were working in different aided Private Management Schools. The school Managements announced that the scale of pay had been reduced to a consolidated sum. Further, vacancies of Secondary Grade Teachers which were likely to arise on account of retirement, resignation and promotion shall be filled up by posting incumbents on consolidated pay. These Government orders were challenged on the ground of exercise of arbitrary discretion. The learned Single Judge had held that, "31. ......down-grading the post of Secondary Grade Teacher as Secondary Grade (Junior Teacher) and asking both of them namely, the existing Secondary Grade Teacher and the newly appointed Secondary Grade (Junior) Teacher doing same work, however, on a consolidated pay of Rs. 800/- is not found on intelligible differential and the same has no relation with the object sought to be achieved. Broadly speaking, the concept of equality has an inherent limitation arising from the very nature of th....
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....rts so that one or two big airports would be clubbed with smaller airports which would make it possible for the intending bidders to bid for the entire group as a whole. However, this was also amended and fresh tenders were invited for clubbing of airports and widening the scope of experience and to include advertisements in public place and also persons having a minimum of 12 months of prescribed reserve license as a turnover. This grouping of various Airports into four groups was challenged. As seen, it was found by the Court as a fact, that the amended conditions suited only the 3rd respondent in the writ petition. As a matter of fact, the learned Single Judge had dismissed the writ petition. It was stated that the Airport Authorities of India can accept or reject the bids supplied by the tenderers and therefore, it was stated that the conditions imposed are not affected by bias or malafides. 35. In the instant case, to reiterate, cogent reasons had been given in the Government order as to why the Private Diesel Bunks have been excluded from grant of exemption from sales tax. The said judgment relied on by the learned counsels will not be of any help to them. 36. The learn....
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....r of the executive at its imposition, exemption, reimposition and re-exemption of taxes and levies. But when to exempt and when to impose duty is left to the executive by the legislature. It will depend on the economic climate. New times require new measures. In a world of growing interdependence the first thing every country wants is protection for its domestic industry. 44. Governed by the market forces and the laws of supply and demand, if the Government finds that it must withdraw the exemption notification at once it can do so. What actuated the Government to take the step of exemption and reimposition was enlightened self-interest, such self-interest as would subserve the common good. The imposition and exemption of customs duty are the chief vehicles of the Government to protect a domestic market and to steady the level of prices. The tariffs are its chosen instruments to shield domestic production from foreign competition." 38. The Hon'ble Supreme Court also relied on (1995) 1 SCC 274, Kasinka Trading V. Union of India, and paragraph 5 had extracted the relevant portion from the said judgment. "5. ...... The reasons given by the Union of India justi....