APPLE HEALTH CARE SUPPLIES Vs. APPELLATE ASSISTANT COMMISSIONER

JUDGEMENT

(1.) THE petitioner has challenged the order of the Appellate Assistant Commissioner granting interim stay of original order of assessment, imposing certain conditions.

(2.) THE petitioner has submitted that they are dealers in intraocular lenses and as per Commissioner's clarification dated March 27, 2002, sale of intraocular lenses fall under item 2 of Part B of the Third Schedule to the Tamil Nadu General Sales Tax Act, 1959 and they are exempt from tax. The first sale of intraocular lenses inside the State attracts 10 per cent rate of tax under entry 19 sub -item (5)(a) of Part C of the First Schedule to the TNGST Act. However, by virtue of item No. 2 of Part B of the Third Schedule read with the notification dated March 27, 2002 stated supra, the first sale inside the State is exempted from tax. The petitioner has further submitted that as per Section 8(2A) of the Central Sales Tax Act, 1956 where the sale or, as the case may be, purchase of which is, under the sales tax law of the appropriate State, exempt from tax generally, then by operation of law, the sale of very same goods under the CST Act, 1956 is also exempted.

(3.) CHALLENGING the conditional order of stay, the petitioner has preferred the present writ petition contending inter alia that when the assessment order itself is void ab initio, in view of the clarification dated March 27, 2002 read with Section 8(2A) of the CST Act, the appellate authority ought to have exercised his jurisdiction judiciously and should not have imposed stringent conditions as stated supra. It is the further case of the petitioner that in view of the amendment in G.O.Ms. No. 331, dated October 10, 1994, published in the official Gazette on November 2, 1994, brought about by Legislature omitting the expression 'personal bond' in sub -rule (1) of rule 31 of the Tamil Nadu General Sales Tax Rules, 1959 and due to financial constraint, the petitioner is unable to offer bank guarantee as directed by the appellate authority. As the goods sold by the petitioner are exempt from tax, the petitioner seeks a writ of certiorari to quash the conditional order of stay.