SGS PETRO ORGANIC LIMITED Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) Aggrieved by the common order passed by the learned single Judge in W.P.Nos.35270 of 2005 & etc. batch, dated 23.12.2009, the writ petitioners, who have lost their case before the learned single Judge, have come with the present appeals.

(2.) Since the issue involved in all these writ appeals being same and inter-connected, they were heard together and disposed of by this common judgment.

(3.) The appellants are the assessees under the provisions of the Tamil Nadu General Sales Tax Act, 1959 and the Central Sales Tax Act, 1956 and they were appointed as Dealers to handle superior kerosene oil for sale, both first sales as well as the second sales within the State. According to the appellants, the kerosene was included as taxable item under Schedule I as item 40 Part B and it was made taxable at the point of first sale @ 4% and from 27.3.2002 the same was brought under Entry 9 Part G of the First Schedule and was taxed at 25% at the point of first sale. Subsequently, by virtue of Act 22 of 2002, Schedule 11 was inserted from 27.6.2002, whereunder the 'Kerosene' was brought under Serial No.10. Under G.O.Ms.No.25 CT (B-1), dated 21.3.2003, by Act 21 of 2003, Serial No.18 was inserted, whereunder Superior Kerosene Oil (White Kerosene) was specified as a taxable entry levying tax at 25% at the point of first sale in the State. Under the same amendment, Entry 10 was amended to read "Kerosene other than white kerosene - First sale - 4 per cent". Moreover, under Section 3H of the Tamil Nadu General Sales Tax Act, a resale tax has been made leviable on the dealers whose turnover is not less than Rs.10 lakhs @ 1% and under Section 3-I, a surcharge at the rate of 5% has been made leviable with effect from 1.7.2002. However, as per Notification dated 27.6.2002 in G.O.Ms.No.79 CT (B2), the State Government granted exemption from payment of resale tax under Section 3H in respect of resale tax payable on the sale of petroleum productions and under the same notification it had also granted exemption from payment of surcharge payable under Section 3-I of the TNGST Act. The amendment had received the assent of the President on 18.3.2003 and came into effect from 21.3.2003. Therefore, it is the contention of the appellants that up to 20.3.2003, the term 'Kerosene' was not distinguished as Superior Kerosene Oil and therefore the Superior Kerosene Oil was taxable only at 4% at first sale and not 25% as per Act 21 of 2003. On the aforesaid background of facts, the amendment Act 21/2003, by which Entry 10 and 18 got amended, came to be challenged before the Tamil Nadu Taxation Special Appellate Tribunal, on abolition of which the matters came before the learned single Judge, who, under the impugned order dismissed the writ petitions by observing that the State Government has got every power to tax kerosene different from that of Superior Kerosene Oil or White Kerosene Oil and the attack of discrimination has to fail.