Sakthi Masala (P) Ltd. and Another vs Assistant Commissioner (CT), Perundurai Assessment Circle, Perundurai

R. Sudhakar, J.—The petitioners have filed these writ petitions seeking issuance of writ of certiorari to call for the records on the file of the respondent in TIN No. 33032922200/2006-07, TIN No. 33032922200/2007-08, TIN No. 33172922996/2006-07 and TIN No. 33172922996/2007-08, respectively, all dated March 19, 2012 and quash the same inasmuch as the impugned orders are inconsistent with section 88(3)(i) of the Tamil Nadu Value Added Tax Act, 2006. While the petitioner in W.P. Nos. 8526 and 8527 of 2012 is engaged in the business of manufacture and sale of masala powder, turmeric powder, chilli powder and coriander powder within the State of Tamil Nadu as well as by inter-State sales, the petitioner in W.P. Nos. 8528 and 8529 of 2012 is engaged in the business of buying and selling of masala powder, turmeric powder, chilli powder and coriander powder from the manufacturers inside the State of Tamil Nadu.

Under the provisions of the Tamil Nadu General Sales Tax Act, 1959 (for brevity, "the TNGST Act"), chilly, coriander and turmeric were exempted goods falling under serial No. 16 of Part B of the Third Schedule to the TNGST Act with effect from July 17, 1996. However, chilly powder, coriander powder and turmeric powder did not fall within the purview of the Third Schedule to the TNGST Act.

The Madras Chillies Merchants Association requested the Government of Tamil Nadu to clarify whether chilly powder, pepper powder and coriander powder are taxable or not consequent to withdrawal of levy of tax on the sale of chilly, turmeric and coriander. This was considered by the, Government of Tamil Nadu and on the basis of several decisions of the courts, namely (i) Rajasthan Roller Flour Mills Association and another Vs. State of Rajasthan and others, , (ii) Krishna Chander Dutta (Spice) Private Limited Vs. Commercial Tax Officer and Others, and (iii) Namputhiris Pickle Industries Vs. State of Kerala and Another, , it was concluded that mere change into powder does not change the essential nature of the commodity or its substantial identity and that when the above goods are powdered there is only a change in the form. Therefore, the Government was of the view that chilly, pepper and coriander would include the powder form also. Thus, by G.O. (D) No. 383, Commercial Taxes Department, dated October 22, 1998, the Government granted exemption to chilly powder, pepper powder and coriander powder in the following manner:

The Government consider that the chillies powder, pepper powder, coriander powder, etc., are not taxable since the chilly, pepper and coriander, etc., are exempted from the payment of tax under Tamil Nadu General Sales Tax Act.

As a consequence, the dealers of chilly, turmeric and coriander powders enjoyed the benefit of exemption in terms of G.O. (D) No. 383, Commercial Taxes Department, dated October 22, 1998. The matter was further clarified by the Sales Tax Department in exercise of power u/s 28A of the TNGST Act. The clarification which was issued on December 9, 2002 reads as under:

Clarification in D. Dis. Acts. Cell/II 88685/2001, dated December 9, 2002

''sale by any dealer whose total turnover in respect of turmeric powder, coriander powder and chilli powder does not exceed Rs. 300 crores in a year is exempt from tax liability under serial No. 16 in Part B of the Third Schedule to the TNGST Act, 1959''.

The dealers, including the petitioners, enjoyed the above benefit without any restrain, as the goods chilly, coriander and turmeric and its powder form were treated as one and the same goods.

Thereafter, the Government of Tamil Nadu brought in the Tamil Nadu Value Added Tax Act, 2006 (for brevity, "Act 32/2006") with effect from January 1, 2007. Under Act 32/2006, the exempted goods were specified under the Fourth Schedule, erstwhile Third Schedule. What was serial No. 16 of Part B of the Third Schedule to the TNGST Act was incorporated as serial No. 18 of Part B of the Fourth, Schedule to the Act 32/2006 and both the entries are extracted hereunder for better clarity:

Serial No. 16 of Part B of the Third Schedule to the TNGST Act, 1959 reads as follows:

Chillies, tamarind, coriander, turmeric and shikkai sold by any dealer whose total turnover in respect of these items does not exceed Rs. 300 crores in a year

Serial No. 18 of Part B of the Fourth Schedule to the TNVAT Act, 2006 reads as follows:

Chillies, tamarind, coriander, turmeric, asafoetida (hing), shikkai and shikkai powder, jaggery and gur including jaggery powder and nattusakkarai sold by any dealer whose total turnover in respect of those items does not exceed Rs. 300 crores in a year.

In the year 2008, by the Tamil Nadu Value Added Tax (Amendment) Act, 2008 (for brevity, "Act 32/2008"), certain provisions of Act 32/2006 came to be amended. Section 3 of the Act 32/2008 is an amendment to the Fourth Schedule to the Act 32/2006 and the relevant portions necessary for the present adjudication are as follows:

S. 3. Amendment of Fourth Schedule.--In the Fourth Schedule to the principal Act, in Part B,--

(1) for item 12 and the entries relating thereto, the following item and entries shall be substituted, namely:--

Bread, bun and rusk (branded or otherwise);

(2) for item 18 and the entries relating thereto, the following item and entries shall be substituted, namely:--

Chillies and chilly powder, coriander and coriander powder, turmeric and turmeric powder, shikkai and shikkai powder, tamarind and asafoetida (hing) sold by any dealer whose total turnover in respect of those item does not exceed rupees three hundred crores in a year.;

(3) after item 48 and the entries relating thereto, the following items and entries shall be inserted, namely:--

48A. Jaggery and gur including jaggery powder and nattuchakkarai,

48B. Jatropha seeds and Jatropha oil

...

(6) after item 64, and the entries relating thereto, the following item and entries shall be inserted, namely:--

64A. Rubberised textile fabrics,

(7) in item 65, after sub-item 8, and the entries relating thereto, the following sub-item and entries shall be added, namely:--

Soya oil.

(8) after item 72, and the entries relating thereto, the following item and entries shall be inserted, namely:--

72A. Siddha Medicine.

(emphasis Here italicised supplied)

It is evident from the above that amendment was done either by substitution, insertion, addition, etc., and they are relevant for the present case.

The Statement of Objects and Reasons of Act 32/2008 read as follows:

In the Budget Speech for the year 2008-09, certain announcements have been made in respect of granting tax relief measures. To give effect to the said announcements, notifications were issued under sub-section (1) of section 86 of the Tamil Nadu Value Added Tax Act, 2006 (Tamil Nadu Act 32 of 2006) to amend the First and the Fourth Schedules to the said Act. Under sub-section (2) of section 86 of the said Act, a Bill to replace the said notifications has to be introduced in the Legislative Assembly.

The Act 32/2008 came into force on April 1, 2008. In the present case, we are concerned with the substitution made by section 3 of the Act 32/2008 in clause (2), which is the substitution of serial No. 18 of Part B of the Fourth Schedule to the Act 32/2006, which has already been extracted above.

The petitioners in these cases, based on the G.O. (D) No. 383, Commercial Taxes Department, dated October 22, 1998 and clarification issued on December 9, 2002, sold chilly powder, coriander powder and turmeric powder as exempted goods and filed returns in form I specifically claiming exemption from payment of tax for the sales turnover before the assessing officer and the returns so filed were accepted u/s 22(2) of the Act 32/2006.

Thereafter, the competent authority, in exercise of power u/s 27 of the Act 32/2006 issued a pre-revision notice on May 31, 2011 in respect of TIN No. 33032922200/2006-07, TIN No. 33032922200/2007-08, TIN No. 33172922996/2006-07 and TIN No. 33172922996/2007-08. The said notices were challenged in W.P. Nos. 16111 to 16114 of 2011. The petitioners, inter alia, challenged the said notices contending that the goods continued to be exempted goods and more particularly, a plea in terms of section 88(3)(i) of the Act 32/2006 was urged before the learned single Judge. The said provision reads as follows:

Repeal and savings.--(1) and (2) . . .

(3) Notwithstanding the repeal of the said Act or 1970 Act, as the case may be,--

(a) to (h) . . .

(i) all rules, regulations, notifications, clarifications or orders made or issued under any of the provisions of the said Act or 1970 Act, as the case may be, and continuing in force on the date immediately before the commencement of this Act, shall continue in force on or after such date in so far as they are not inconsistent with the provisions of this Act or the Rules made thereunder until they are repealed or amended.

The main plea that was urged before the learned single judge was that the rules, regulations, notifications and clarifications which are in force under the TNGST Act will continue to be in force under Act 32/2006. It was also pleaded that during the regime of the TNGST Act, by virtue of G.O. (D) No. 383, Commercial Taxes Department, dated October 22, 1998 and the clarification dated December 9, 2002 issued u/s 28A of the TNGST Act, the goods, namely, chilly powder, turmeric powder and coriander powder, continued to enjoy the exemption and the said exemption would continue even under Act 32/2006. The said plea was considered by the learned single judge and negatived in the following terms:

But, as rightly pointed out by the learned Special Government Pleader, even as per section 88(3)(i) of the TNVAT Act, the rules, regulations, circulars and the provisions made under the TNGST Act which were in force prior to coming into force of TNVAT Act will continue to be in force, provided they are not inconsistent with the TNVAT Act. But, by G.O. Ms. No. 36, Commercial Taxes and Registration (B2) Department, dated April 1, 2008 alone which came into force with effect from April 1, 2008, chilli powder, coriander powder and turmeric powder were brought under exemption. Consequently, prior to this, as rightly pointed out by the learned Special Government Pleader, the exemption granted under the TNVAT Act under entry 18 (Commodity Code No. 718) under Part B of the Fourth Schedule was with reference to only chilli, coriander and turmeric and not with reference to these powders. Hence, based on the rules, regulations, circulars and orders issued under the TNGST Act, the petitioners cannot claim exemption for chilli powder, coriander powder and turmeric powder. To say in other words, since prior to April 1, 2008, exemption was not granted to chilli powder, coriander powder and turmeric powder under the TNVAT Act, the rules, regulations, circulars and orders issued under the TNGST Act granting exemption to these chilli powder, coriander powder and turmeric powder are to be treated as inconsistent with the provisions of the TNVAT Act till March 31, 2008. Consequently, based on these rules, regulations, notices and circulars, the petitioners are not entitled to claim exemption for chilli, powder, coriander powder and turmeric powder. However, the petitioners were given exemption for chilli powder, coriander powder as well as turmeric powder for the period from January 1, 2007 to March 31, 2008 also. But, when exemption has been granted only with effect from April 1, 2008 with reference to these turmeric powder, chilli powder and shikkai powder and when that exemption is not in accordance with law, the authorities are entitled to issue the revised assessment orders.

The petitioners took up the matter by way of appeals in W.A. Nos. 1705 to 1708 of 2011. A Division Bench of this court, by judgment dated September 19, 2011 (Sakthi Masala (P) Limited v. Assistant Commissioner (Commercial Taxes), Perundurai), declined to interfere with the order of the learned single judge primarily on the ground that without giving reply to the notices writ petitions have been filed. The view taken by the learned single judge with regard to non-applicability of the exemption prior to Act 32/2008 was approved by the Division Bench. It is also stated by the petitioners that their further appeals to the Supreme Court in SLP No. 33324 of 2011, etc., on the above plea were dismissed.

Thereafter, the respondent issued fresh notices on March 7, 2012 and the petitioners filed their objections on March 13, 2012, inter alia, contending that the goods, namely, chilly powder, turmeric powder and coriander powder, are no different from chilly, turmeric and coriander and, therefore, the goods will continue to fall under serial No. 18 of Part B of the Fourth Schedule to the Act 32/2006 and will be entitled to the benefit of exemption which has already been granted by the competent authority based on the returns filed by the petitioners. The petitioners also stated that the revision of assessment that is sought to be made contrary to the above stated factual and legal position that chilly and chilly powder, coriander and coriander powder, and turmeric and turmeric powder are one and the same is bad. The said plea of the petitioners/assessees was not accepted by the respondent and orders in terms of section 27(1) of the Act 32/2006 were passed in respect of the two assessment years and that is under challenge before this court.

The primary reason for filing the writ petitions after passing of the orders u/s 27(1) of the Act 32/2006 is that the petitioners already suffered an order before this court in writ petitions and in writ appeals and in further appeals before the Supreme Court and, therefore, no purpose will be served by going before the appellate authority, as they will decline to interfere by referring to the earlier orders. Therefore, an appeal will only be an empty formality. This plea prima facie is tenable considering the nature of order that has been passed earlier and the order in appeal passed by the Division Bench.

The learned counsel for the petitioners submitted on the merits of the case as follows:

(i) The goods in question, namely, chilly powder, turmeric powder and coriander powder, by virtue of G.O. (D) No. 383, Commercial Taxes Department, dated October 22, 1998 and the clarification dated December 9, 2002 are clearly the same goods as chilly, turmeric and coriander and that is how the Department treated it for a long period of time. Till the advent of Act 32/2006 from January 1, 2007, there was no difficulty in accepting the fact that chilly and chilly powder, coriander and coriander powder, and turmeric and turmeric powder are one and the same and are entitled to exemption. On and from January 1, 2007 to March 31, 2008, there appears to be a gray area. The word "powder" in relation to the goods in question was not specifically mentioned. The State in its wisdom found that there was a glaring omission in the entries in Fourth Schedule relating to serial No. 18 and in the case of some other goods as well, and therefore by Act 32/2008 substituted, inserted and added various entries into the Fourth Schedule to the Act 32/2006. By section 3(2) of the Act 32/2008, serial No. 18 was substituted to restore the position as it was prior to January 1, 2007. The substitution was made more to undo the error which had crept in during the period from January 1, 2007 to March 31, 2008. The petitioners'' counsel advanced the plea that the substitution under Act 32/2008 is only to ensure that the benefit which applies to the product and its powder form is not denied. By referring to the objects and reasons, (i.e.), to grant tax relief, the Government clarified by way of substituting the word "powder" in relation to chilly, turmeric and coriander, so as to have effect from the date of the New Act 32 of 2006. The word substitution has different connotation when compared to the use of the word "inserted" or "added". The word "substitution" would mean that what is substituted will stand substituted from the inception. Whereas "insertion" and "addition" would come into play on the relevant date. That is to say, "insertion" and "addition" is on the date of Amending Act 32/2008. Whereas "substitution" is to Act 32/2006 and will have the effect from January 1, 2007 when Act 32/2006 came into force.

(ii) In support of the plea that substitution takes effect from January 1, 2007 by way of replacement, the learned counsel for the petitioners relied upon a decision of the Supreme Court in Government of India and Others Vs. Indian Tobacco Association, to canvas the plea that by substitution a mistake that has occurred is sought to be removed by the Legislature, which is the case now pleaded by the petitioners. He laid emphasis on paragraphs 16, 17 and 26 to 29 in Government of India and Others Vs. Indian Tobacco Association, in SCC of the said decision, which read as under (pages 384, 386 and 387 in 5 RC):

The word ''substitute'' ordinarily would mean ''to put (one) in place of another''; or ''to replace''. In Black''s Law Dictionary, Fifth Edition, at page 1281, the word ''substitute'' has been defined to mean ''to put in the place of another person or thing'' or ''to exchange''. In Collins English Dictionary, the word ''substitute'' has been defined to mean ''to serve or cause to serve in place of another person or thing''; ''to replace (an atom or group in a molecule) with (another atom or group)''; or ''a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague''.

By reason of the aforementioned amendment no substantive right has been taken away nor any penal consequence has been imposed. Only an obvious mistake was sought to be removed thereby.

...

In Zile Singh Vs. State of Haryana and Others, , wherein the effect of an amendment in the Haryana Municipal Act, 1973 by Act No. 15 of 1994 whereby the word ''after'' was substituted by the word ''up to'' fell for consideration; wherein Lahoti, C.J. speaking for a three-Judge Bench held the said amendment to have a retrospective effect being declaratory in nature as thereby obvious absurdity occurring in the first amendment was removed and bring the same in conformity with what the Legislature really intended to provide, stating (page 12):

The text of section 2 of the Second Amendment Act provides for the word "up to" being substituted for the word "after". What is the meaning and effect of the expression employed therein--" shall be substituted"?

The substitution of one text for the other pre-existing text is one of the, known and well-recognized practices employed in legislative drafting. "Substitution" has to be distinguished from "supersession" or a mere repeal of an existing provision.

Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (see Principles of Statutory Interpretation, ibid., page 565). If any authority is needed in support of the proposition it is to be found in West Uttar Pradesh Sugar Mills Association and Others Vs. State of Uttar Pradesh and Others, , State of Rajasthan v. Mangilal Pindwal [1996] 5 SCC 60, Koteswar Vittal Kamath Vs. K. Rangappa Baliga and Co., and A.L.V.R.S.T. Veerappa Chettiar Vs. S. Michael etc., . In West Uttar Pradesh Sugar Mills Association and Others Vs. State of Uttar Pradesh and Others, , a three-fudge Bench of this court held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule. Having regard to the totality of the circumstances centering around the issue the court held that the substitution had the effect of just deleting the old rule and making the new rule operative. In State of Rajasthan Vs. Mangilal Pindwal, this court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force. In Koteswar Vittal Kamath Vs. K. Rangappa Baliga and Co., , a three-Judge Bench of this court emphasised the distinction between "supersession" of a rule and "substitution" of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place.''

We are not oblivious of the fact that in certain situations, the court having regard to the purport and object sought to be achieved by the Legislature may construe the word ''substitution'' as an ''amendment'' having a prospective effect but such a question does not arise in the instant case.

There is another aspect of the matter which may not be lost sight of. Where a statute is passed for the purpose of supplying an obvious omission in a former statute, the subsequent statute relates back to the time when the prior Act was passed. (See Attorney General v. Pougett [1816] 2 Price 381 : 146 ER 130).

The doctrine of fairness also is now considered to be a relevant factor for construing a statute. In a case of this nature where the effect of a beneficent statute was sought to be extended keeping in view the fact that the benefit was already availed of by the agriculturalists of tobacco in Guntur, it would be highly unfair if the benefit granted to them is taken away, although the same was meant to be extended to them also. For such purposes the statute need not be given retrospective effect by express words, but the intent and object of the Legislature in relation thereto can be culled out from the background facts.

(emphasis Here italicised supplied)

He stated that by dint of Act 32/2008 the substitution made to entry 18 would mean that chilly and chilly powder, turmeric and turmeric powder, and coriander and coriander powder existed in the Fourth Schedule on and from January 1, 2007 and that is the way in which it should be interpreted. The intention of the Legislature is evident from the use of the word substitution and not insertion or addition. The substitution of serial No. 18 of Part B of the Fourth Schedule has the effect of substitution of the new entry instead of the old entry. As a result, the amendment relates back to the time when exemption in Act 32/2006 was in force, (i.e.), Fourth Schedule.

(iii) While relying upon G.O. (D) No. 383, Commercial Taxes Department, dated October 22, 1998, the clarification dated December 9, 2002 and the Act of the State granting exemption without showing any discrimination between chilly and chilly powder, etc., and amendment brought in by Act 32/2008, it was pleaded that the court has to consider the statutory intent to come to the conclusion that the intention of the Legislature was to exempt chilly powder, turmeric powder and coriander powder, as in the case of the chilly, turmeric and coriander without differentiation. To buttress the said argument, he relied upon a decision in Commissioner of Income Tax (Central) Vs. B.N. Bhattacharjee and Another, , wherein it was held as under (pages 479 and 480 in 118 ITR):

We are mindful that a strictly grammatical construction is departed from in this process and a mildly legislative flavour is imparted by this interpretation. The judicial process does not stand helpless with folded hands but engineers its way to discern meaning when a new construction with a view to rationalization is needed. Lord Denning, in his recent book The Discipline of law, page 12 made a seminal observation on ''ironing out the creases'' by quoting a passage from Seaford Court Estates Ltd. v. Asher [1949] 2 KB 481 : [1949] 2 All ER 155, 164 (CA):

Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give "force and life" to the intention of the Legislature. That was clearly laid down by the resolution of the judges ... in Heydon''s case [1584] 3 Co. Rep 7b : [1584] 76 ER 637, and it is the safest guide today. Good practical advice on the subject was given about the same time by Plowden. . . Put into homely metaphor it is this: A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases.

On this point, he also placed reliance on a decision of the Supreme Court in State of Tamil Nadu Vs. Kodaikanal Motor Union (P) Ltd., , wherein the above principle was applied at paragraphs 16 and 17:

Lord Denning, in Seaford Court Estates v. Asher [1949] 2 All ER 155 at 164 said thus:

. . . When a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament . . . and then he must supplement the written word so as to give "force and life" to the intention of the Legislature. . . A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.

The courts must always seek to find out the intention of the Legislature. Though the courts must find out the intention of the statute from the language used, but language more often than not is an imperfect instrument of expression of human thought. As Lord Denning said it would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity. As judge learned Hand said, we must not make a fortress out of dictionary but remember that statutes must have some purpose or object, whose imaginative discovery is judicial craftsmanship. We need not always cling to literalness and should seek to endeavour to avoid an unjust or absurd result. We should not make a mockery of legislation. To make sense out of an unhappily worded provision, where the purpose is apparent to the judicial eye ''some'' violence to language is permissible. (See K.P. Varghese Vs. Income Tax Officer, Ernakulam and Another, and Luke v. Inland Revenue Commissioners [1964] 54 ITR 692 (HL).

(iv) The learned counsel for the petitioners referred to a decision of the Supreme Court in O.S. Singh and Another Vs. Union of India (UOI) and Another, , wherein the Supreme Court has applied the said principle affirming the view taken by Lord Denning, even though such view taken by Lord Denning was not approved by the House of Lords. The relevant portion of the said decision at paragraphs 10 and 11 reads as under:

Again in Magor & St. Mellons Rural Distt. Council v. Newport Corpn. [1950] 2 All ER 1226, the learned judge has said (All ER at page 1236):

We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.

Although the said views of Lord Denning have not been approved by the House of Lords in Magor & St. Mellons Rural Distt. Council v. Newport Corpn. [1951] 2 All ER 839, they have been referred to with approval by this court. (See: State of Bihar v. Dr. Asis Kumar Mukherjee [1975] 3 SCC 602, State of Karnataka and Another Vs. Hansa Corporation, ). The observations of Viscount Simonds in the House of Lords disapproving the observations of Denning L.J. referred to above, have also been referred to with approval in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and Others, .

(v) On the legal plea, it is further pointed out by the learned counsel for the petitioners that since the petitioners have already submitted returns and the same were accepted by the competent authority and assessment orders were passed by the Department granting exemption with full knowledge and understanding, it will not come within the purview of escaped assessment for invoking the provisions of section 27(1) of the Act 32/2006 and section 16(1)(a) of the TNGST Act, for which reliance has been placed on a decision of the Division Bench of this court in State of Tamil Nadu Vs. Tvl. Arihant Plastic House, , wherein it was held as under (pages 193 and 194 in 27 VST):

. . . heard Mr. Haja Naziruddin, learned Special Government Pleader for Taxes and having bestowed our serious consideration to the relevant provision and the facts placed before us, we are of the view that the assessing officer had no jurisdiction to invoke section 16(1)(a) of the Act, in the facts and circumstances of the case. As rightly held by the lower appellate authority as well as the Tribunal, the question of escapement of assessment would have arisen if at all the assessee, namely, the respondent had either deliberately or inadvertently not placed the entire transactions before the assessing officer and thereby the assessing officer had no opportunity to consider any particular item of turnover, which would fall within the ambit of escapement from assessment. In the case on hand, it was admitted that the entire sales turnover relating to ''monofilament niwar'' was made available by the assessee before the original authority, who with his eyes wide-open thought it fit at that point of time that the said item was exempted from tax by virtue of the circular instructions issued by the Commissioner of Commercial Tax dated March 31, 1993. The issue cannot therefore be brought under the concept of ''escapement assessment'', for which alone invoking of section 16(1)(a) of the Act, is permissible under the provisions of the Act.

The abovestated view of the Division Bench will apply to the case of the petitioners as the returns were filed and exemption was granted by the competent authority. There is, therefore, no question of escaped assessment.

(vi) It is the further case of the petitioners and pleaded emphatically also that the Department cannot raise the plea that chilly powder, turmeric powder and coriander powder are different from chilly, turmeric and coriander, as there is no difference or confusion in the identity of chilly and chilly powder, as was held by a Full Bench of the Kerala High Court in Namputhiris Pickle Industries Vs. State of Kerala and Another, . It is relevant to refer to paragraphs 14 to 16 of the said decision, which read as under (page 9 in 92 STC):

In the light of the above line of cases dealing with the ''substantial identity'' test, can it be said that chilli in its original form (see item 27 of the First Schedule) and chilli powder are different commercial commodities? In our opinion, not. When chillies are made into powder, they do not, in our view, change in ''substantial identity and character'' or ''essential nature.'' They may be used in their natural form or used after being converted into powder. The mere change into the powdered form, in our view, does not change the ''essential nature'' of the commodity, as stated in Tungabhadra Industries Ltd. Vs. The Commercial Tax Officer, Kurnool, or the substantial identity, as stated in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam Vs. Pio Food Packers, and Sterling Foods, A Partnership Firm represented by its Partner Shri Ramesh Dalpatram Vs. State of Karnataka and Another, decided by the Supreme Court. There is only a change in the form and no change in the substantial identity.

We may, in this context also refer to other cases decided by certain other High Courts in regard to certain commodities in the original form and in the form of their powders. It has been consistently held that there is no change in the substantial identity though there may be change in the form. In Rasoi Products and Another Vs. Commercial Tax Officer and Others, , the Calcutta High Court held that when pepper, black pepper, white pepper and turmeric are powdered, there is no substantial change in the commodities and that the powders are not again liable to sales tax. In Ram Bhadur Takkur Takkur (P) Ltd. Vs. Coffee Board, Bangalore and Others it was held by the Madras High Court that when coffee seeds are powdered and coffee powder results, there is no substantial change in the identity of the two goods for purposes of sales tax. In New Swastik Flour Mill and another Vs. State of Karnataka and others, , the Karnataka High Court held that atta, maida and soji which are produced out of wheat, though different in form from the parent substance, they are nothing but wheat in substance for purposes of the sales tax law. They followed the decision in Dhanbad Flour Mills Vs. The State of Bihar and Others, of the Patna High Court, where a similar view was taken.

Following the decisions of the Supreme Court referred to above, which now have emphasised the essential nature of the substantial identity tests, and the decisions of the High Courts above referred to, we hold that when chillies are converted into chilli powder, they essentially and substantially remain the same commodities and are therefore not taxable under entry 27 of the First Schedule, once again when sold in the powdered form. We accordingly overrule Ambika Provision Stores Vs. State of Kerala, . To the extent that Ambika Provision Stores Vs. State of Kerala, is accepted in Rani Food Products'' case (C.M.P. No. 5651 of 1988 decided on September 13, 1988) the latter is also overruled to that extent. We also hold that exhibit P2 clarification of the Government that chillies in the powdered form are again taxable and that too under entry 27 of the First Schedule to the Act is clearly erroneous. We decide the first question posed in exhibit P1 accordingly.

(vii) The abovesaid view of the Full Bench of the Kerala High Court has been approved by the Supreme Court in State of Kerala and Another Vs. Namputhiris Pickle Industries, , (S.P. Bharucha, J. and K. Venkataswami, J.) wherein it was held as under (page 313 in 117 STC):

The question in these cases is whether chilli and chilli powder are different products, both exigible to sales tax. The chilli powder is produced from chillies on which sales tax under the same entry has been paid. Whether, the chilli powder is the result of a process of manufacture which the chillies have undergone and whether chilli powder is a commodity commercially distinct from chillies are questions of fact to answer which the party proposing that the chilli powder is also exigible to tax must place relevant evidence before the appropriate taxing authority. In the instant case, the sales tax authorities should have placed such material to establish that the chillies underwent some process or manufacture and that the end-product, namely, chilli powder, was recognized by those who dealt in it as being distinct from chillies. They did not do so. Upon this ground alone, therefore, we decline to interfere with the judgments under appeal. . .

(viii) Similarly, in M/s. Sun Export Corporation, Bombay Vs. Collector of Customs, Bombay and another, , in a case relating to cattle feed supplements, the Supreme Court referred the question that was considered by the Bombay High Court, namely, "The only question is whether prior to this notification, the petitioners are entitled to exemption under the original Notification No. 55 of 1975" and the following view expressed by the Bombay High Court (page 73 in 111 STC):

It was submitted by the respondents that the subsequent amendment expressly refers to ''animal feed supplements''. This suggests that animal feed supplements were not previously included in the exemption notification. This reasoning must be rejected. The amendment appears to be clarificatory in nature. For example, the amendment now expressly refers also to animal feed concentrates which were not expressly referred to earlier. It cannot be said that animal feed concentrates are not animal feed. In the same manner products which supplement animal feed and are generally added to animal feed are also covered by the generic term ''animal feed''.

and confirmed the decision of the Bombay High Court. This decision is relied upon by the learned counsel for the petitioners to contend that chilly and chilly powder continue to be the same product and, therefore, if exemption is granted to chilly under serial No. 18 of Part B of the Fourth Schedule to the Act 32/2006, it will also include chilly powder. The substitution by Act 32/2008 in serial No. 18 is merely to substitute the old entry in Act 32/2006 with the new entry to have effect as of January 1, 2007 when the New Act 32/2006 came into effect. As a consequence, the exemption to chilly, coriander and turmeric and its powder form is applicable from January 1, 2007 without differentiation. This plea is, therefore, made by the petitioners both in law and on facts.

The learned counsel for the petitioners contended that the plea as was raised in the earlier round of litigation with regard to the applicability of section 88(3)(i) of the Act 32/2006 is not canvassed at this point of time as they have already raised that plea and lost before this court as well as the higher forum. The petitioners are canvassing the writ petitions on other legal and factual plea which were not substantially dealt with in the earlier round of litigation.

The learned counsel for the petitioners, inter alia, pleaded that the orders passed by the revisional authority u/s 27(1) of the Act 32/2006 have no basis, as the goods in question, namely, chilly powder, turmeric powder and coriander powder would continue to enjoy the benefit of exemption under serial No. 18 of Part B of the Fourth Schedule to the Act 32/2006. The word "substitution" clearly would go to show that by Act 32/2008 the substitution would have the effect of bringing within the ambit of Fourth Schedule chilly powder, turmeric power and coriander powder from its inception and as a result, the exemption would continue even for the period from January 1, 2007 to March 31, 2008. On the various plea, as above, these writ petitions are canvassed.

Mr. Arvind Pandian, learned Additional Advocate-General appearing for the respondent submitted his legal plea to the effect that substitution in the Fourth. Schedule to the Act 32/2006 comes into operation only with effect from April 1, 2008 and, therefore, for the period from January 1, 2007 to March 31, 2008, insofar as chilly powder, turmeric powder and coriander powder are concerned, there was no exemption. The petitioners cannot derive a benefit in respect of the goods which do not fall under the Fourth Schedule to the Act 32/2006 during the aforesaid period, namely, January 1, 2007 to March 31, 2008. To bolster the said argument, he placed reliance on the following decisions:

(i) A decision of a Division Bench of the Karnataka High Court in The Commissioner of Customs Vs. Leela Scottish Lace Ltd. and Leela Lace International Ltd., , wherein the Division Bench has held as under (pages 142-144 in 16 GSTR):

Therefore, when the notifications read with the Rules and the section expressly deny the benefit of duty drawback in certain situations and in respect of certain goods, there is no question of the benefit being claimed or extended in contravention with the statutory provisions and the statutory notifications, more so when the language of the notifications, rules and the section, is clear, emphatic and unambiguous.

...

Though Sri Naresh Thacker, learned counsel for the respondent-assessee, had made an attempt to submit that clauses (c) and (d) providing for denial of a duty drawback claim and in the nature of an embargo, should be understood in the context of Export and Import Policy of the Government in force and when the policy of the Government was to promote exports, providing incentives to exporters by way of benefit in the form of duty drawback and providing for such benefits being with the main purpose of augmenting the foreign exchanges reserve, etc., the significance of the 100 per cent EOU undertaking in terms of the relevant provisions of Export and Import Policy is only to the establishment of a 100 per cent EOU in terms of the policy and nothing more and at any rate the Export and Import Policy cannot regulate or override the provisions of the Act, Rules and the notifications issued under these statutory provisions. In fact, there is no conflict or scope for understanding in the manner as is sought to be submitted by the learned counsel for the respondent-assessee. To this effect is the view taken by the courts including the Supreme Court and the interpretation to be placed in respect of an exemption provision is well-settled in law, for us to either to get confused or to take a contrary view and to put the matters beyond any semblance of doubt or controversy we may safely refer to and rely upon the observations contained in the judgment of the Supreme Court in the case of Commissioner of Central Excise, Chandigarh-I Vs. Mahaan Dairies, and reading as under (page 126 of 3 RC):

It is settled law that in order to claim benefit of a notification a party must strictly comply with the terms of the notification. If on wordings of the notification the benefit is not available then by stretching the words of the notification or by adding words to the notification benefit cannot be conferred.

This view is reiterated by the Supreme Court in the subsequent cases also and as indicated in the case of Tata Iron and Steel Co. Ltd. Vs. State of Jharkhand and Others, and observed that (page 659 of 4 RC):

Eligibility clause, it is well-settled, in relation to exemption notification must be given a strict meaning.

...

Even in respect of an exemption matter, the exemption is as conferred by statute and not either as is sought to be given by courts or as is understood by courts by way of a deduction or by way of extension to similar situations. An exemption is only in respect of those circumstances and persons or groups who are specifically mentioned for the exemption and not by way of extension of similar situations or similarly placed persons or even similar goods.

(ii) A decision of the Supreme Court in Income Tax Officer, Alleppey Vs. M.C. Ponnoose and Others, , wherein it was held as under:

Now it is open to a sovereign Legislature to enact laws which have retrospective operation. Even when the Parliament enacts retrospective laws such laws are--in the words of Willes, J., in Phillips v. Eyre [1870] 40 Law J. Rep. (N.S.) Q.B. 28 at page 37 : L.R. 6 Q.B. 1, 23:

. . . no doubt, prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law.

The courts will not, therefore, ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the Legislature. Parliament can delegate its legislative power within the recognized limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the Legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect; (see Subha Rao, J., in Dr. Indramani Pyarelal Gupta Vs. W.R. Nathu and Others, --the majority not having expressed any different opinion on the point; Modi Food Products Ltd. Vs. Commr. of Sales Tax, U.P., , India Sugars and Refineries Ltd. Vs. State of Mysore and Others, and General S. Shivdev Singh and Another Vs. The State of Punjab and Others, ).

(emphasis Here italicised supplied)

(iii) A decision of the Supreme Court in Bombay Oil Industries Pvt. Ltd. Vs. Union of India (UOI) and Others, , wherein it has been held as under:

Before parting we may note one submission of the learned counsel. They submitted that laying down of condition 2 in notification dated August 2, 1976 was a clear error on the part of the Central Government which was corrected by them by the latter notification dated September 2, 1978 and, therefore, the latter notification be treated as clarificatory notification read with above notification of August 2, 1976. It is not possible to agree as the disputed imports with which we are concerned are prior to September 2, 1978. They are, therefore, covered by the earlier Notification of 1976. It is true that the Tribunal by noting these submissions has observed in paragraph 35 of the judgment that the colour specification was an error and that the error be removed but for that reason it could not ignore the colour specification when it was the part of the law. We entirely agree with the view of the Tribunal that even if the Central Government corrected its error about condition 2 from September 2, 1978 by issuing a fresh notification, the earlier colour specification requirement remained operative for imports made by the concerned importers prior to September 2, 1978 when the earlier notification dated August 2, 1976 was holding the field. The latter notification cannot be said to be merely clarificatory notification nor can it have any retrospective effect. It is a fresh notification laying down fresh condition deleting the earlier condition 2 about the colour specification. Hence this submission is of no avail to the learned counsel for the appellants.

(iv) A decision of the Supreme Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, , wherein it has been held as under:

The rival pleas regarding rewriting of statute and casus omissus need careful consideration. It is well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said. ''Statutes should be construed, not as theorems of euclid'', judge learned Hand said, ''but words must be construed with some imagination of the purposes which lie behind them''. (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was reiterated in Union of India and Others Vs. Filip Tiago De Gama of Vedem Vasco De Gama, .

In D.R. Venkatachalam and Others Vs. Dy. Transport Commissioner and Others, , it was observed that courts must avoid the danger of a prior determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.

While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the Legislature to amend, modify or repeal it, if deemed necessary. (See M/s. Rishabh Agro Industries Ltd. Vs. P.N.B. Capital Services Ltd., ). The legislative casus omissus cannot be supplied by judicial interpretative process. Language of section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in N. Narasimhaiah and Others Vs. State of Karnataka and Others and Union of India (UOI) and Others, . In State of Karnataka and Others Vs. D.C. Nanjudaiah and Others, , the period was further stretched to have the time period run from date of service of the High Court''s order; Such a view cannot be reconciled with the language of section 6(1). If the view is accepted it would mean that a case can be covered by not only clause (i) and/or clause (ii) of the proviso to section 6(1), but also by a non-prescribed period. Same can never be the legislative intent.

Two principles of construction--one relating to casus omissus and the other in regard to reading the statute as a whole--appear to be well-settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four comers of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. ''An intention to produce an unreasonable result'', said Danckwerts, L.J., in Artemiou v. Procopiou [1965] 3 All ER 539 (at All ER page 544-I), ''is not to be imputed to a statute if there is some other construction available''. Where to apply words literally would ''defeat the obvious intention of the legislation and produce a wholly unreasonable result'', we must ''do some violence to the words'' and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC [1964] 54 ITR 692 (HL) : [1963] AC 557 : [1963] 1 ALL ER 655 where at AC page 577 he also observed: (All ER page 664-I) "This is not a new problem, though our standard of drafting is such that it rarely emerges''.

(emphasis Here italicised supplied)

(v) A Division Bench judgment of this court dated September 19, 2011 in W.A. Nos. 1705 to 1708 of 2011 (Sakthi Masala (P) Limited v. Assistant Commissioner (Commercial Taxes), Perundurai), in the petitioners own case, held that the applicability of exemption would arise only in terms of G.O. Ms. No. 36, Commercial Taxes and Registration (B2) Department, dated April 1, 2008 and, therefore, they cannot seek the benefit of exemption from January 1, 2007 to March 31, 2008. Paragraph 7 of the said judgment is as under:

The appellants have approached this court challenging the show-cause notice issued by the respondent to reopen the assessment orders on the ground that the appellants are not entitled for exemption before April 1, 2008 in view of G.O. Ms; No. 36, dated April 1, 2008. Without submitting any explanation to the aforesaid show-cause notice, the appellants have chosen to file the writ petition. The only grievance of the appellant is that even before issuance of G.O. Ms. No. 36, dated April 1, 2008, they were enjoying the exemption granted under the TNVAT Act and this exemption has not been taken away by the issuance of the subsequent G.O. Ms. No. 36, dated April 1, 2008. This contention of the learned Senior Counsel was already met by the learned single judge by drawing the various provisions of the Act and the clauses found in the G.O. Ms. No. 36, dated April 1, 2008. From a reading of the impugned order in the light of the provisions of the Act and the G.O. Ms. No. 36, dated April 1, 2008, we are convinced that the decision of the learned single judge does not call for any interference. The learned single judge has rightly come to a conclusion that the petitioners would be entitled for the exemption only after the issuance of the G.O., and not before that. Though the learned senior counsel has drawn our attention to various provisions of the Act and the TNVAT Act, we are not in a position to take a different view in the matter.

On this set of legal plea and alternative remedy, he pleaded for dismissing the writ petitions. No other plea was raised or canvassed by the respondent/Department.

I have heard the learned counsel for the petitioners and the learned Additional Advocate-General appearing for the respondents at length as above. The issues that arise for consideration in these writ petitions are as follows:

Alternative remedy

On the plea of alternative remedy by way of appeal against the order passed by the competent authority u/s 27 of the Act 32/2006, which is the preliminary objection raised by the learned Additional Advocate-General, the court is inclined to accept the petitioners'' plea for the reasons stated hereunder.

The petitioners have already suffered an order on the plea raised in terms of section 88(3)(i) of the Act 32/2006 before the learned single judge, which is confirmed by the Division Bench and the Supreme Court. Moreover, the Division Bench has specifically held that exemption will be applicable only from April 1, 2008. Therefore, it would be of no avail to the petitioners to pursue the alternative remedy, as the competent authority will be bound by the findings of this court. The remedy of appeal will be an empty formality. Hence, I reject the respondent''s plea of availability of alternative remedy. However, it is to be noticed that the Division Bench taking note of the fact that the writ petitions have been filed challenging the notices, while dismissing the writ appeals, granted time to the petitioners to submit their explanation to the notices dated May 31, 2011. Thus, the matter was remanded to the authority to consider the issue on the basis of explanation.

The petitioners in this case have raised a plea with regard to the applicability of exemption to chilly powder, turmeric powder and coriander powder on the same footing as chilly, turmeric and coriander. In this regard, they placed reliance on the decision of the Full Bench of the Kerala High Court in Namputhiris Pickle Industries v. State of Kerala [1994] 92 STC 1 (Ker) [FB], which was upheld by the apex court, wherein it has been clearly held that there is no difference between chilly and chilly powder. Since the said plea has been rejected by the authority and the Department relied upon an order of the court in the earlier round of litigation, it is apparent that the remedy of appeal will be from caesar to caesar. Accordingly, I hold that the writ petitions are maintainable.

Exemption and goods

Insofar as the exemption is concerned, there cannot be two opinions that chilly and chilly powder, turmeric and turmeric powder and coriander and coriander powder are one and the same in view of the decision of the Full Bench of the Kerala High Court in Namputhiris Pickle Industries Vs. State of Kerala and Another, , wherein they have extensively dealt with the commodity, namely, chilly, and what is the effect of the powder form of the said goods. The Kerala High Court has categorically held that the mere change in the powder form does not change the "essential nature" of the commodity relying upon Tungabhadra Industries Ltd. Vs. The Commercial Tax Officer, Kurnool, or the "substantial identity" test as stated in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam Vs. Pio Food Packers, . They have given a clear finding that there is only a change in the form and there is no change in the substantial identity. This decision was upheld by the Supreme Court on the said finding as well in State of Kerala and Another Vs. Namputhiris Pickle Industries, .

This decision of the Full Bench of the Kerala High Court and the Supreme Court comes in aid of the petitioners'' plea that chilly and chilly powder, turmeric and turmeric powder, and coriander and coriander powder are one and the same goods not only to the understanding of the petitioners, but also that of the State. This fact stands amplified by the Government order in G.O. (D) No. 383, Commercial Taxes Department, dated October 22, 1998 and the clarification dated December 9, 2002 issued u/s 28A of the TNGST Act. It is, therefore, clear that the Government was well aware that there is no confusion in the identity of chilly, turmeric and coriander in its original form as well as the powder form. They treated both as same goods. The Government thought it fit to correct the error in not bringing the powder form of chilly, turmeric and coriander in the Fourth Schedule to the Act 32/2006 by substitution u/s 3 of the Act 32/2008. It is, therefore, clear that the Government is all along aware of the fact that chilly, turmeric and coriander in original form and powder form are one and the same goods and are eligible for exemption. It is also not the case of the Department before this court that powder form of chilly, coriander and turmeric are different goods. Therefore, there cannot be any manner of doubt that the goods in the present case, which have been dealt with by the petitioners, namely, powder form of chilly, turmeric and coriander, are exempted goods and are entitled to the benefit of exemption as before.

Effect of substitution

The next plea that would arise for consideration is whether the substitution in serial No. 18 of Part B of the Fourth Schedule by Act 32/2008 will be with effect from April 1, 2008 as pleaded by the respondent/Department or it will have effect from January 1, 2007 as pleaded by the petitioners.

This issue will have to be considered in the light of the following decisions which have been relied upon by the learned counsel for the petitioners.

In Government of India and Others Vs. Indian Tobacco Association, , by referring to the decision in Zile Singh Vs. State of Haryana and Others, , it has been clearly held that substitution would have the effect of amending the operation of law during the period in which it was in force. In this case, substitution in serial No. 18 of Part B of the Fourth Schedule has been made by the Government apparently to bring into force amended serial No. 18 of Part B of the Fourth Schedule by Act 32/2008 from the time of operation of the law, namely, serial No. 18 of Part B of the Fourth Schedule to the Act 32/2006. If the intention of the State prior to coming into force of Act 32/2006 is to grant exemption to powder form of chilly, turmeric and coriander and that is confirmed by the substitution made in serial No. 18 of Part B of the Fourth Schedule to the Act 32/2008, it is evident that the substitution made is only to state the obvious, namely, to fill up the lacunae for the period from January 1, 2007 to March 31, 2008. The old entry has been substituted by the new entry into Act 32/2006. It is not a case of insertion or addition of a new entry. What is substituted would stand substituted from inception, (i.e.), with effect from January 1, 2007 whereas insertion or addition will be relevant to the date of amendment, (i.e.), April 1, 2008. By substitution, the amended serial No. 18 of Part B of the Fourth Schedule replaces old serial No. 18 of Part B of the Fourth Schedule to the Act 32/2006. The old serial No. 18 of Part B of the Fourth Schedule becomes dead letter for all purposes. The implication of the word "substituted" is defined by the Supreme Court at paragraph (15) of Government of India and Others Vs. Indian Tobacco Association, , extracted in paragraph 15(ii) of this order. "Substitution" means put one in the place of another. This is exactly what has been done in the present case. The amendment serves the cause of exemption granted under Act 32/2006.

The contention of the learned Additional Advocate-General that substitution effected will be operative from April 1, 2008 and not with effect from January 1, 2007 cannot be the intention of the Legislature and in any event, if there was an omission or a specific statement to that effect, the court, as has been pointed out in the various decisions which 1 will be adverting to shortly, is empowered to give a constructive meaning to the intention of the Legislature and give it the force of life. In the words of Lord Denning in Seaford Court Estates Ltd. v. Asher [1949] 2 KB 481, the judge should iron out the creases without altering the material. This principle has been applied in the case of State of Tamil Nadu Vs. Kodaikanal Motor Union (P) Ltd., and O.S. Singh and Another Vs. Union of India (UOI) and Another, .

I find from the facts of the present case that there is justification for this court to iron out the creases by interpreting the word "substitution" to mean that the intention of the Legislature was to replace the old serial No. 18 of Part B of the Fourth Schedule with new serial No. 18 to have effect for the period January 1, 2007 and March 31, 2008. The understanding of the Department prior to coming into force of Act 32/2006 and from April 1, 2008, the date of coming into force of Act 32/2008, to state the obvious, is that the powder form of chilly, turmeric and coriander continues to be exempted goods for all purposes. If during the interregnum period, namely from January 1, 2007 to March 31, 2008, there appears to be an omission, that omission is sought to be corrected by way of substitution. The effect of substitution and its implication has been dealt with extensively in the earlier part of the order considering the arguments of the petitioners. This court clearly holds that substitution has the effect of replacing the old serial No. 18 of Part B of the Fourth Schedule to the Act 32/2006 and the substitution will therefore entail goods described in serial No. 18 of Part B of the Fourth Schedule of Amending Act 32/2008 the benefit of exemption as is applicable from the inception of Act 32/2006. The new replaces the old and that is substitution and as a consequence, exemption becomes inevitable. The Department''s plea that the exemption will not apply to the period from January 1, 2007 to March 31, 2008 cannot be accepted, as substitution in this case will have to relate back to January 1, 2007 itself, when Act 32/2006 came into force.

It needs no further clarification to state that even in terms of the decision of the Full Bench of the Kerala High Court in Namputhiris Pickle Industries Vs. State of Kerala and Another, , which has been upheld by the Supreme Court in State of Kerala and Another Vs. Namputhiris Pickle Industries, , the powder form of chilly continues to be one and the same item. This statement is made only to amplify that despite substitution by way of Act 32/2008, the petitioners are entitled to exemption in respect of the powder form of chilly, turmeric and coriander on the mere entry in serial No. 18 of Part B of the Fourth Schedule to the Act 32/2006.

When there is no differentiation between the two forms of the goods, the substitution is more in the nature of clarification of a pre-existing right which has accrued to the petitioners, that is to say that the powder forms of chilly, turmeric and coriander are no different from chilly, turmeric and coriander. The decision of the Supreme Court in State of Kerala and Another Vs. Namputhiris Pickle Industries, , makes it clear that there is no differentiation between chilly and its powder form. Both are one and the same goods. The mere entry in serial No. 18 of Part B of the Fourth Schedule to the Act 32/2006 itself, de hors amending Act 32/2008, will entitle the petitioners to get the benefit of exemption. In any event, the substitution under Act 32/2008 would only clarify the position that the Legislature wanted to state the obvious, (i.e.), the exemption would apply to powder form of chilly, turmeric and coriander as it stood from January 1, 2007. Paragraphs 25 to 27 of the decision in Government of India and Others Vs. Indian Tobacco Association, , which have been extracted above, fortifies this view.

In The Commissioner of Customs Vs. Leela Scottish Lace Ltd. and Leela Lace International Ltd., , relied upon by the learned Additional Advocate-General, the respondent is a domestic tariff area unit (DTAU). The said unit, which is an assessee under the relevant Act, stated that it had exported goods manufactured out of duty suffered inputs and, therefore, claimed benefit of duty drawback made available to a person claiming to have exported goods manufactured out of goods imported in terms of section 75 of the Customs Act and that was granted. The Department initiated action for recovery of the drawback granted. The objection of the Revenue was that some of the goods were manufactured in a sister concern, which was an export oriented unit (EOU) and, therefore, they are not entitled to claim drawback in view of Customs Notification No. 67 of 1998 and Customs Notification No. 31 of 1999. The Tribunal, in its order, which was assailed before the court, held that the assessee was entitled to claim duty drawback independent of the notification. There was also a finding by the Tribunal that the goods that were manufactured by the 100 per cent EOU were in nature of job-work and that would not disentitle the assessee the benefit of drawback. In this factual background, the question that arose for consideration, as has been recorded by the Division Bench of the Karnataka High Court, is at paragraph 51 and it reads as follows (page 138 in 16 GSTR):

Accordingly, we examine the other questions. The real question though is distributed in the three questions, viz., common questions in TRC Nos. 1, 2 and 4 of 2005, is one which can be put into one question as to whether the Customs Notification No. 67/1998 read with circular of even number and Customs Notification No. 31/1999 read with circular of even number, would come in the way of an assessee like the respondent--a DTA unit--from claiming the benefit of duty drawback available to a domestic exporter in terms of the provisions of section 75 of the Act.

In the light of this provision, the Division Bench came to hold that the notification read with Rules expressly deny the benefit of drawback in certain situations and in respect of certain goods and, therefore, if there is a contravention of the same, the benefit cannot be extended. There is no quarrel to the proposition that the language of the notification, Rules and sections has to be strictly construed. There is also no doubt that in interpreting taxing provisions, the exemption provision found in taxing statutes has to be express and there is no exemption by implication or logical deduction. In other words, strict interpretation should be resorted to.

In the present case, we are concerned not with a case of exemption notification. The statute has already provided for exemption under the Fourth Schedule to the Act 32/2006. The exemption was available under the TNGST Act as well. The exemption came to be substituted with effect from April 1, 2008 into the Fourth Schedule and I have already held that substitution would mean that it is given effect from January 1, 2007 in view of the various decisions of the Supreme Court, referred to above.

The decision of the Karnataka High Court is purely on the basis of interpretation of exemption notification and that situation does not arise in the present case. Paragraph 68 of the decision, on which emphasis has been laid by the learned Additional Advocate-General, would arise if there are similar goods which call for interpretation. But in the present case, the Full Bench of the Kerala High Court and the Supreme Court in Namputhiris Pickle Industries Vs. State of Kerala and Another, and State of Kerala and Another Vs. Namputhiris Pickle Industries, , have clearly come to the conclusion that the goods, namely, chilly and chilly powder, are one and the same. There is no question of similar goods. Therefore, the interpretation placing reliance on paragraph 68 does not apply to the facts of the present case.

The Government was always of the view that chilly and chilly powder, coriander and coriander powder, turmeric and turmeric powder are one and the same product. It is of no consequence whether the word "powder" is mentioned or not. Therefore, the said decision does not in any way affect the reasoning given in the present case.

The decision of the Supreme Court in Income Tax Officer, Alleppey Vs. M.C. Ponnoose and Others, , may not apply to the facts of the present case, as the court is not giving retrospective effect to a new law. The present case is distinguishable in clear terms. The exemption was granted under the TNGST Act and it is extended under the Act 32/2008 and there was a lacunae for a certain period and that was sought to be rectified by substitution. The catena of decisions, referred to earlier, clearly come to the aid of this court to support the interpretation that substitution will have effect from January 1, 2007, as if it existed on the date when Act 32/2006 came into force. The said decision therefore stands distinguished on facts.

Bombay Oil Industries Pvt. Ltd. Vs. Union of India (UOI) and Others, , relied upon by the learned Additional Advocate-General relates to imports and as to whether the later notification would have the benefit of correcting what was not available in the earlier notification. In that case, the Supreme Court held that the later notification cannot be said to be clarificatory notification nor can it have any retrospective effect. In that case, there was certain deletion with regard to the colour of the imported tallow. The ratio laid down in that case will not apply, to the present case as chilly and chilly powder, coriander and coriander powder, and turmeric and turmeric powder under the TNGST Act and also under Act 32/2008 were considered as one and the same goods and not different goods and that has been affirmed by the Full Bench of the Kerala High Court and the Supreme Court and the Government has accepted it to be same goods. If that be the case, there is no change even during the period between January 1, 2007 and March 31, 2008 insofar as the said goods are concerned. It does not change the character of the goods merely because by, substitution the word "powder" has been added. This position is accepted by the Government, in the Government Order in G.O. (D) No. 383, Commercial Taxes Department dated October 22, 1998, which has been referred to supra. Therefore, the plea that the amendment will not have retrospective effect will not be a tenable plea insofar as the present case is concerned. It has no relevance and is factually distinguishable.

In Bombay Oil Industries Pvt. Ltd. Vs. Union of India (UOI) and Others, there are two notifications, one distinct from the other. Whereas in the present case, as per the TNGST Act the goods were one and the same and in the Act 32/2008 also the goods are one and the same. Therefore, there is no ambiguity insofar as identity of the goods is concerned. If there was any difference in the identity of the goods, then the plea of the Revenue could have been accepted. In the absence of such a distinction between the goods, the said decision will be of no avail.

The principle laid down by the Constitution Bench of the Supreme Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, , is a well-established legal principle. I am very clear in stating that in the present case there is no intention on the part of the court to supplement something which is not specified by the Legislature itself. Neither is this court usurping the legislative functions under the guise of interpretation. This court is well aware of the principle that the court should only interpret law and should not legislate.

Coming to the facts of the present case, it is evident that the intention of the Legislature under the TNGST Act as well as the Act 32/2008 is to treat chilly and chilly powder, coriander and coriander powder, and turmeric and turmeric powder as one and the same goods. I am not embarking on the principle of casus omissus at this juncture because the understating of the Revenue in the TNGST Act as well as Act 32/2008 and the Government Order in G.O. (D) No. 383, Commercial Taxes Department, dated October 22, 1998 and the clarification issued on December 9, 2002 u/s 28A of the TNGST Act is based on the interpretation by the Full Bench of the Kerala High Court and the Supreme Court in State of Kerala and Another Vs. Namputhiris Pickle Industries, and therefore, there cannot be any element of doubt that chilly and chilly powder, coriander and coriander powder, and turmeric and turmeric powder are one and the same goods.

In any case, the Supreme Court did not put an embargo that the principle of casus omissus cannot be applied as a matter of rule, but it however stated that such a principle can be applied in a case of clear necessity and when reasons for it are found in the four corners of the statute. That situation does not arise in the present case, as there is no anomaly. The Legislature intended to treat particular goods in particular manner in both forms. Even if the word "powder form" was not available at a particular point of time, the words chilly, coriander and turmeric, by itself would include the powder form as well. Such being the intention of the Legislature and the Government, the question of different construction by the court does not arise. Therefore, the decision in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, , does not apply to the facts of the present case.

The Division Bench decision of this court dated September 19, 2011 made in W.A. Nos. 1705 to 1708 of 2011 (Sakthi Masala (P) Limited v. Assistant Commissioner (Commercial Taxes), Perundurai), in the case of the petitioners, and the reasoning contained therein that the petitioners will be entitled to exemption only after the issuance of the Government order and not before that is based on interpretation of G.O. Ms. No. 36, Commercial Taxes and Registration (B2) Department, dated April 1, 2008. However, the plea of the petitioners is that both the goods are one and same and the decisions of the Full Bench of the Kerala High Court and the Supreme Court were never raised nor considered by the Division Bench of this court. In any event, liberty was given to the petitioners to give reply to the notices on merits. In effect, the petitioners were given liberty to urge all the issues on merits and therefore the petitioners are entitled to raise all issues on facts and law, as may be applicable and relevant. The petitioners have made out a case for interference by this court as the very proceedings post section 22 assessment is one without jurisdiction and contrary to law laid down by the apex court on identity of goods.

In view of the above, the court has no hesitation to hold that the goods, namely, powder form of chilly, turmeric and coriander, continue to enjoy the benefit of exemption despite their being a specific omission of the powder form from January 1, 2007 to March 31, 2008. The benefit of exemption granted based on returns filed is in order.

Escaped assessment:

Yet another plea which was raised by the petitioners and which needs to be considered is the decision of the Division Bench in State of Tamil Nadu Vs. Tvl. Arihant Plastic House, .

The said case has been relied upon by the petitioners to state that the instant case is not a case of escaped assessment, as the Department in this case has accepted the returns in terms of section 22(2) of Act 32/2006, referable to section 12 of the TNGST Act, and the proceedings u/s 27 of Act 32/2006 referable to section 16(1)(a) of the TNGST Act. In the said case, the Division Bench clearly held that once a return has been filed and assessment has been accepted and the Department was conscious of the nature of exemption granted, the question of revision of escaped assessment would not arise. Therefore, the very basis of invoking section 27 of the Act 32/2006 is at fault.

While considering the above decision of the Division Bench and the facts of the present case, it is clear that in this case returns were filed in terms of section 22 of the Act 32/2006 and accepted by the competent authority. The exemption was sought and granted. It is only thereafter that the proceedings were initiated u/s 27 of the Act 32/2006 on the ground of escaped assessment for penalty. On the face of it, such a plea cannot be accepted because there is no question of escaped assessment or a false statement or misstatement, as all the records are already before the competent authority. The decision of the Division Bench of this court clearly applies to the facts of the present case and on this plea also the petitioners are entitled to succeed, as the pre-revision notice and the proceedings consequent thereon, which are under challenge, fall foul of the plea of escaped assessment.

In view of the finding of this court that the chilly, coriander and turmeric are one and the same as their powder form, as has been held by the Full Bench of the Kerala High Court and the Supreme Court; the understanding of the Government in G.O. (D) No. 383, Commercial Taxes Department, dated October 22, 1998; the clarification issued on December 9, 2002 u/s 28A of the TMGST Act; and the reasoning of this court on substitution, it is clear that exemption remained even during the period in question, namely, from January 1, 2007 to March 31, 2008. This court has no hesitation to hold that the proceedings u/s 27 of the Act 32/2006, which are under challenge, are without jurisdiction and contrary to law. The said proceedings deserve to be set aside. In the result, these writ petitions are allowed and the impugned orders are quashed. No costs. Consequently, M.P. Nos. 1 of 2012 (four petitions) are closed.