w w w . L a w y e r S e r v i c e s . i n



M/s D.C. Food Products v/s Commissioner of Trade Tax, U.P. Lucknow


Company & Directors' Information:- B. P. FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15311MP1994PTC032994

Company & Directors' Information:- S P P FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15412DL2004PTC128666

Company & Directors' Information:- J S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15314OR1991PTC002964

Company & Directors' Information:- H R B FOOD PRODUCTS PVT LTD [Active] CIN = U15146WB1988PTC045281

Company & Directors' Information:- V D FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15400DL2012PTC231717

Company & Directors' Information:- P R FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC030483

Company & Directors' Information:- S S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15310MH2003PTC142530

Company & Directors' Information:- B K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15312OR1996PTC004541

Company & Directors' Information:- O H P FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U52205DL1999PTC100269

Company & Directors' Information:- K V FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15122DL2007PTC162739

Company & Directors' Information:- K. C. FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15431JK1982PTC000554

Company & Directors' Information:- K I C FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15316DL1979PTC009757

Company & Directors' Information:- R B FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15313DL2010PTC202753

Company & Directors' Information:- R K B FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15490KL2013PTC033500

Company & Directors' Information:- S K G FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15419UP1991PTC013771

Company & Directors' Information:- B H FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15134DL1997PTC084273

Company & Directors' Information:- N S FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15412WB1992PTC055591

Company & Directors' Information:- H N FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15146UP1990PTC011540

Company & Directors' Information:- V K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15412UP1988PTC010023

Company & Directors' Information:- B M FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15419WB1993PTC060386

Company & Directors' Information:- I K FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15412WB1991PTC051852

Company & Directors' Information:- S S V FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15499AP1982PTC003547

Company & Directors' Information:- S Q P FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15100MH2003PTC139217

Company & Directors' Information:- F S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15311MH2000PTC126031

Company & Directors' Information:- Z K FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400MH2010PTC209818

Company & Directors' Information:- M B S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U01112WB2003PTC096375

Company & Directors' Information:- N D FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15131DL2002PTC115754

Company & Directors' Information:- C K M FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51909KL1998PTC012358

Company & Directors' Information:- G S C FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15316WB1985PTC038398

Company & Directors' Information:- A K G FOOD PRODUCTS PVT LTD [Under Liquidation] CIN = U15412WB1990PTC049789

Company & Directors' Information:- J M D FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15419DL1998PTC097578

Company & Directors' Information:- L K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15200TG2016PTC103411

Company & Directors' Information:- FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15431JK1966PTC000304

Company & Directors' Information:- R R FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15490PN2015PTC154753

Company & Directors' Information:- A N FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400TG2013PTC091969

Company & Directors' Information:- R V S K FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15490DL2012PTC245851

Company & Directors' Information:- K G Y FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400KA1984PTC005909

Company & Directors' Information:- FOOD PRODUCTS (INDIA) PVT. LTD. [Strike Off] CIN = U15311HR1994PTC032356

Company & Directors' Information:- M K FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15209DL1979PTC009924

    Sales/trade Tax Revision No. 941 and 942 of 2005

    Decided On, 31 August 2016

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE YASHWANT VARMA

    For the Appellant: S.D. Singh, Harshvardhan Gupta, Advocates. For the Respondent: C.S.C.



Judgment Text

1. Heard Sri S.D. Singh, learned Senior Counsel for the revisionist and Sri B.K. Pandey, learned standing counsel for the respondent.

2. These revisions raise the following questions of law:

"A. Whether roasted groundnuts are declared goods under Section 14 (vi) (i) of the Central Sales Tax, 1956?

B. Whether in view of the circular dated 20.07.1979 issued by the Commissioner of Trade Tax, U.P Lucknow groundnuts could be taxed as an unclassified commodity prior to 23.05.04?"

3. While the revision raises the question as to whether roasted groundnuts stand covered under the entry "groundnut" as used in clause (vi) (i) of section 14 of the Central Sales Tax Act, 1956 (1956 Act), the sole issue upon which submissions have been advanced center and revolve around a circular dated 20 July 1979 (1979 Circular) issued by the Commissioner Trade Tax U.P. which had purported to hold that roasted groundnuts would stand covered under the aforementioned entry. The dispute arises as a consequence of a subsequent circular dated 24 May, 2004 (2004 Circular) which proceeded to annul the earlier circular.

4. In terms of the 1979 Circular, the Commissioner, Trade Tax U.P. clarified that roasted groundnuts were liable to be treated as comprised in clause (vi) (i) of Section 14 of the 1956 Act. The entry under clause (vi) and with which we are concerned reads thus:

"(vi) Oil seeds, that is say. ‘

(i) Groundnut or Peanut (Arachis hypogaea);"

From the submission of the learned counsel for the revisionist, it transpires that based upon the aforesaid circular, the revisionist assessee treated roasted groundnut manufactured by it as being covered by the aforesaid entry and therefore entitled to the benefits flowing from Section 14 of the 1956 Act. This position is stated to have continued till the 2004 circular came to be issued by the Commissioner, Trade Tax. The relevant part of the said circular reads as follows:

'LANGUAGE"

5. As a perusal of the 2004 Circular would show and establish, the opinion of the Law Department of the State Government is stated to have been obtained to clarify as to whether roasted groundnut would stand covered by the entry "groundnut" as used in clause (vi) (i) of Section 14. This reference to the Law Department itself is stated to have been occasioned on account of a conflict between the circular dated 1979 circular and the letter dated 3 March 2001 addressed by the Assistant Commissioner (Law), Trade Tax, U.P. The Law Department basing its opinion on a judgment rendered by the Supreme Court in Gopuram Gram Mill Company and another v. State of Andhra Pradesh, 1994 (95) STC 358 held that groundnut as specified in clause (vi) (i) of Section 14 would not encompass roasted groundnut. Accepting the said opinion as submit by the Law Department, the Commissioner clarified accordingly and passed directions annulling the earlier circular dated 20 July 1979.

6. It becomes relevant to note here that the present revisions themselves relate to the Assessment Years 1998-99 and 1999-2000 and in respect of which assessment orders were passed on 20 March 2001 and 29 August 2001. The first appellate authority affirmed these orders by a common order dated 7 February 2002 and the Tribunal by its judgment dated 3 June 2005. The dates noted above would show that the assessee was assessed to tax and denied the benefits of section 14 prior to the issuance of the 2004 circular.

7. Sri S.D. Singh has advanced the following submissions:

A. The 1979 circular of the Commissioner continued to hold the field till it was overridden on 24 May 2004. He submits that therefore the assessee was liable to the benefit of the said circular and that the assessing authority as well as the first appellate authority had clearly committed an illegality in proceeding to hold that roasted groundnuts were not liable to be accorded the benefit of Section 14 of the 1956 Act.

B. The 1979 circular issued by the Commissioner, Trade Tax was to the benefit of the assessee and it was based upon the same that the assessee structured its business dealings. The subsequent 2004 circular cannot retroactively take away a benefit which stood conferred upon the assessee.

C. Tax under the U.P. Trade Tax Act 1948 (1948 Act), is an indirect impost, which a selling dealer is entitled to pass on to a purchaser. In the transactions effected during the course of the two assessment years in question, the tax liability which was passed onto the purchaser was based upon the understanding that the 1979 circular applied. Accordingly it was submit that no retrospective liability could have been imposed upon the revisionist.

D. The issue of whether roasted groundnuts stood covered by the entry "groundnut" as employed in clause (vi) (i) of Section 14 viewed in the absence of circular of the 20 July 1979 was a contentious issue or at least one which was/is open to debate. He refers what the Supreme Court held in Milak Brothers v. Union of India, 1991 Supp (1) SCC 71. It was urged that Milak was considering the question as to whether groundnut which had undergone a roasting and salting process would loose its identity as groundnut. It was submit that the Supreme Court had held that it was possible to envisage two different commercial commodities falling under the same entry of Section 14. In such a situation the Supreme Court held that there was no reason why the entry should be restricted to only one of them. He submit that the subsequent decision rendered by three Judges of the Supreme Court in Gopuram did not notice Milak and even otherwise was not dealing with the issue of a commodity in its roasted or finished form and was therefore clearly distinguishable.

8. The essence of the submission being that in case of a state of doubt with respect to the tax ability of an item, the circular issued by the Commissioner was liable to prevail and benefits accorded to the assessee. He has in support of his submissions above, relied upon the following judgments:

1. Collector of Central Excise Patna v. Usha Martin Industries, (1997) 7 SCC 47.

2. Paper Products Ltd v. Commissioner of Central Excise, (1999) 7 SCC 84.

3. State of Karnataka and another v. Sri Lakshmi Coconut Industries, (1997) 11 SCC 621.

4. M/s. KBB Nuts Pvt Ltd v. Commissioner of Value Added Tax, ST. Appl.5/2014 dated 28 March 2014 [Delhi High Court].

9. Sri B.K. Pandey per contra, made the following submissions:

A. The 2004 circular of the Commissioner had in express term annulled the 1979 circular. This recital in the 2004 circular would have to be construed as if the 1979 circular never existed or held the field.

B. Even prior to the issuance of the 2004 circular, a doubt had been expressed with respect to the tax-ability of roasted groundnut and the Additional Commissioner (Law), Trade Tax, U.P had expressed the opinion that roasted groundnut would not stand covered under the entry of groundnut as provisioned for in clause (vi) (i) of Section 14 of the 1956 Act.

C. No question of retrospectivity applies inasmuch as the judgment of the Supreme Court in Gopuram is liable to be treated as declaratory. He submits that not only was Gopuram rendered by a larger Bench of the Supreme Court than which decided Milak, the law as enunciated therein would always deemed to have operated.

D. This Court should not and cannot grant primacy to the 1979 circular over and above what the Supreme Court held in Gopuram.

Sri Pandey in support of his submissions above, relied upon the judgment of the Supreme Court in Commissioner of Central Excise, Bolpur v. M/s. Ratan Melting & Wire Industries, 2008 NTN (Vol.38) - 206.

It is these rival submissions, which now fall for consideration.

10. Clause (vi) of Section 14 of the 1956 Act refers to various categories of oil seeds. The description of the commodity and various commodities which are then classified as falling within the same genre are prefaced by the words "that is to say". It is trite to note that in Gopuram, three learned Judges of the Supreme Court have noticed and held that the usage of the phrase 'that is to say' indicates the intent of the legislature to make clear or fix the meaning of what is sought to be explained or defined. Their Lordships held that the phrase 'that is to say' indicates an exhaustive enumeration and therefore consequently the benefit of Section 14 must be limited to the goods expressly mentioned therein.

11. Now it needs to be borne in mind that no judgment of this Court or for that matter the Supreme Court directly deals/dealt with the issue of whether roasted groundnut would be liable to be treated as falling within the ambit of the entry 'groundnut' as used in clause (vi) (i) of section 14. Milak, it becomes relevant to note, was a judgment rendered with reference to the Customs Tariff Act, 1975 and was not really dealing with section 14 of the 1956 Act. While the interpretation accorded to groundnut in the said judgment may be said to veer around or tend to support the submission of the revisionist, the Court would be justified in treading with caution before applying a judgment which has come to be rendered with reference to the provisions of another statute. This more so when the Court finds that the Customs Tariff Act 1975 did not employ the words "that is to say". Similarly Gopuram while dealing with the provisions of the 1956 Act, was construing "gram" and whether parched or fried gram would stand covered. Of course Gopuram does stress upon and underline the significance of the phrase "that is to say" in section 14 and holds that no expansive meaning can be accorded to commodities which stand mentioned therein. Therefore it would be safe to say that there is no authoritative pronouncement on the issue as to whether roasted groundnut would stand covered under clause (vi) (i) of section 14. The 1979 circular in unequivocal terms held out that roasted groundnuts would be liable to be considered as falling within the ambit of clause (vi) (i). The 2004 circular represented an authoritative yet paradigm shift from what was permitted to hold the field for decades namely, the 1979 circular. The 2004 circular, it may be noted, did not rest itself upon a declaration of the law that roasted groundnut would not be covered. It was based upon the opinion of the Law Department of the State which in turn rested upon the interpretation to section 14 as accorded to it by the Supreme Court in Gopuram. This Court, it must be noted, is not called upon to test the correctness of the opinion expressed therein nor must it be understood to have ruled upon its validity. All that the Court is called upon to consider and answer essentially is whether the 2004 circular would have the effect of effacing the benefits derived by the revisionist from and under the 1979 circular.

Now the effect of departmental circulars issued under taxing statutes is a subject that is no longer res integra.

12. In Usha Martin the law on the subject was enunciated in the following terms:

"6. There is no doubt that as per the above notification if any amount of duty has been paid on the raw material, the output product would escape from excise duty. The doubt arose was regarding the expression in the notification i.e." on which the appropriate amount of duty of excise has already been paid" as to whether it is capable of two interpretations, one as claimed by the assessee and the other as put forth by the revenue".

19. No doubt the court has to interpret statutory provisions and notifications thereunder as they are with emphasis to the intention of the legislature. But when the Board made all others to understand a notification in a particular manner and when the latter have acted accordingly, is it open to the Revenue to turn against such persons on a premise contrary to such instructions?

21. Through a catena of decisions this Court has pronounced that Revenue cannot be permitted to take a stand contrary to the instructions issued by the Board. It is a different matter that an assessee can contest the validity or legality of a departmental instruction. But that right cannot be conceded to the department, more so when others have acted according to such instructions, [vide Collector of Central Excise. Bombay v. Collector of Central Excise [1996(88) ELT 638], Ranadey Micronutrients v. collector of Central Excise [1996(87) ELT 19], Poulose and Mathen v. collector of central Excise [1997(90) ELT 264, British Machinery Supplies Co. v. Union of India [1996(86) ELT 449]. Of course the appellate authority is also not bound by the interpretation given by the Board but the assessing officer cannot take a view contrary to the Board's interpretation.

22. We may observe particularly that a special aspect highlighted by the Bench in Poulose and Mathen v. Collector of Central Excise [1997(90) ELT 264] is apposite for fastening the revenue with binding force as regards the instructions issued, while constructing a notification which was not free from doubt, Learned judges in that decision have observed thus:

"One aspect deserves to be noticed in this context. The earlier tariff advice no. 83/81 on the basis of which trade notice No. 222/81 was issued by the Collector of Central Excise and Customs is binding on the department. It should be given effect to. There is no material on record to show that this has been rescinded or departed from, and even so, to what extent. Even assuming that the later tariff advice No.6/85 has taken a different view about which there is no positive material the facts point out that the concerned department itself was having considerable doubts about the matter. The position was not free from doubt. It was far from clear. In such a case, where two opinions are possible, the assessee should be given the benefit of doubt and that opinion which is in its favour should be given effect to. In the light of the above, it is unnecessary to adjudicate the other points involved in the appeal on the merits."

(emphasis supplied)

13. Declaring the law in similar terms in Paper Products the Supreme Court held:

"4. The question for our consideration in these appeals is: what is the true nature and effect of the Circulars issued by the Board in exercise of its power under Section 37B of the Central Excise Act, 1944? This question is no more res integra in view of the various judgments of this Court. This Court in a catena of decisions has held that the Circulars issued under Section 37B of the said Act are binding on the Department and the Department cannot be permitted to take a stand contrary to the instructions issued by the Board. These judgments have also held that the position may be different with regard to an assessee who can contest the validity or legality of such instructions but so far as the Department is concerned, such right is not available. [See Collector of Central Excise, Patna v. Usha Martin Industries (1997 7 SCC 47)]. In the case of Ranadey Micronutrients v. Collector of Central Excise (1996 (87) ELT 19), this Court held that the whole objective of such Circulars is to adopt a uniform practise and to inform the trade as to how a particular product will be treated for the purposes of excise duty. The Court also held that it does not lie in the mouth of the Revenue to repudiate a Circular issued by the Board on the basis that it is inconsistent with a statutory provision. (emphasis supplied). Consistency and discipline are, according to this Court, of far greater importance than the winning or losing of court proceedings. In the case of Collector of Central Excise, Bombay v. Jayant Dalal Pvt. Ltd. (1997 10 SCC 402), this Court has held that it is not open to the Revenue to advance an argument or even file an appeal against the correctness of the binding nature of the Circulars issued by the Board. Similar is the view taken by this Court in the case of Collector of Central Excise, Bombay v. Kores [India] Ltd. (1997 10 SCC 338).

6. As stated above, it is an admitted fact that by virtue of Circular No.4/85 dated 23.7.1986 as clarified by Circular dated 7.8.1987, all the three products of the appellant are to be treated as the products of the printing industry and not that of the packaging industry. A change in the said view of the Board occurred for the first time by virtue of its Circular No.6/89 dated 16.1.1989. Further, the Board itself by its subsequent Circular No.29/89 dated 5.5.1989 has made it abundantly clear that the change notified in Circular No.6/89 will be prospective from the date of issuance of Circular No.6/89, that is, from 16.1.1989. Therefore, it is clear that till the issuance of Circular No.6/89 which is dated 16.1.1989 the products of the appellant, by virtue of the two Circulars dated 23.7.1986 and 7.8.1987, have to be classified under Chapter 49 of the Act as being products of the printing industry eligible for exemption of duty under Notification Nos.122/75 and 234/82 as applicable at the relevant time. The impugned show cause notices and consequent demand being ab initio bad inasmuch as the same was contrary to the existing Circulars of the Board, the same cannot be sustained."

(emphasis supplied)

14. A Constitution Bench in Ratan Melting summarised the law in the following words :

"2. It was noted by the three Judge Bench that the effect of the aforesaid observations was noted in several decisions. In Kalyani Packaging Industry v. Union of India and Anr. (2004 (6) SCC 719), it was noted as follows:

"We have noticed that para 9 (para 11 in SCC) of Dhiren Chemical case (2004 (6) SCC 722) is being misunderstood. It, therefore, becomes necessary to clarify para 9 (para 11 in SCC) of Dhiren Chemical case (2004 (6) SCC 722). One of us (Variava, J.) was a party to the judgment of Dhiren Chemical case and knows what was the intention in incorporating para 9 (para 11 in SCC). It must be remembered that law laid down by this Court is law of the land. The law so laid down is binding on all courts/tribunals and bodies. It is clear that circulars of the Board cannot prevail over the law laid down by this Court. However, it was pointed out that during hearing of Dhiren Chemical case because of the circulars of the Board in many cases the Department had granted benefits of exemption notifications. It was submit that on the interpretation now given by this Court in Dhiren Chemical case the Revenue was likely to reopen cases. Thus para 9 (para 11 in SCC) was incorporated to ensure that in cases where benefits of exemption notification had already been granted, the Revenue would remain bound. The purpose was to see that such cases were not reopened. However, this did not mean that even in cases where the Revenue/Department had already contended that the benefit of an exemption notification was not available, and the matter was sub judice before a court or a tribunal, the court or tribunal would also give effect to circulars of the Board in preference to a decision of the Constitution Bench of this Court. Where as a result of dispute the matter is sub judice, a court/tribunal is, after Dhiren Chemical case, bound to interpret as set out in that judgment. To hold otherwise and to interpret in the manner suggested would mean that courts/tribunals have to ignore a judgment of this Court and follow circulars of the Board. That was not what was meant by para 9 of Dhiren Chemical case."

"5. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the Court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the Court to declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law."

15. What is discernible from the law as declared by the Supreme Court is that circulars issued by departmental authorities in exercise of statutory powers is clearly binding on them though not on courts or tribunals. They have been rightly described as representing the views and understanding of the department of the statutory provisions. They continue to hold the field till the view expressed and embodied therein is overruled or eclipsed by an authoritative pronouncement of the High Court or the Supreme Court. Once a precedent comes to be handed down and entered which enunciates the law on the point at variance with what the circular purported to hold, the circular must necessarily give way. At such a juncture a party cannot contend that the circular would continue to operate even though it may run contrary to a binding verdict or declaration of law by a High Court or the Supreme Court. The primary purpose as noted by the Supreme Court in holding the department to the views taken and expressed in such circulars is to ensure a uniform practise and to enable the trade to arrange its business accordingly.

16. If the above principles as enunciated by the Supreme Court are borne in mind it is clear and apparent that the revisionist was justified in proceeding to arrange its affairs in accordance with the 1979 circular. The 1979 circular was issued by the Commissioner of Trade Tax U.P. who was duly empowered in terms of rule 4 of the U.P. Trade Tax Rules, 1948. This circular was clearly binding upon the other subordinate authorities working under and administering the 1948 Act. In any view of the matter the revisionist could not have been held liable to pay additional tax and denied the benefits flowing from section 14. Its actions were based entirely upon the 1979 circular which continued to hold the field till 24 May 2004 when the second circular came to be issued. All transactions prior to 24 May 2004 were therefore liable to be treated in accordance with the provisions of the 1979 circular.

17. That then takes us to the issue of whether the 2004 circular had the effect of impacting transactions which had already been subjected to tax prior thereto. To this the answer must obviously be in the negative.

18. As noted above, the 1979 circular continued to hold the field for decades. The 2004 circular represented a considered and definitive shift in the stand and understanding of the department on the subject. It represented

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a paradigm change of position and thought. The said circular was neither explanatory in character nor was it an instrument to clear conflicting views and opinions. The letter dated 3 March 2001 addressed by the Assistant Commissioner (Law), Trade Tax, U.P, it becomes worthy of note, was merely a communication of the Assistant Commissioner (Law). It was not a circular issued by the Commissioner of Trade Tax in exercise of statutory powers. It did not have the effect of overriding or rescinding the 1979 circular. The 2004 circular can be rightly described as an outcome of a revisit and a reconsideration of the vexed issue of tax ability of roasted groundnut and whether it was liable to be treated as an unclassified item. However the moment one arrives at the conclusion that the 2004 circular was merely an outcome of an exercise of "revisit" and "reconsideration" and not an expression of opinion based upon an authoritative pronouncement of law by a competent court, it must be treated as having prospective operation. 19. While arriving at the above conclusions, the Court has also weighed in consideration the flux in the legal position and the fact that the issue of tax ability of roasted groundnut as an unclassified item was/is an issue not free from debate and question. In such a situation as the Supreme Court held in Usha Martin benefit of doubt must be given to the assessee and that opinion which is in its favour must be given effect to. 20. One last submission of Sri B.K. Pandey which needs to be noticed and considered is his contention that the 2004 circular declared the 1979 circular as void and a nullity and therefore the views expressed therein would be deemed to have never operated. With respect, this Court is unable to countenance the said submission. The Commissioner Trade Tax U.P. it needs to be noted is not a court. The power to declare the law is vested in and with a court. The power to issue a declaration of nullity does not inhere in the Commissioner. The submission itself is based upon principles, applicable to the issue of decrees and declarations by courts. The 2004 circular therefore did not have the effect of effacing the 1979 circular with retrospective effect. 21. In light of the above, this Court holds that question no. 2 must be answered in favour of the revisionist and it be held that prior to the promulgation of the 2004 circular the 1979 circular held the field and all transactions in roasted groundnuts as entered into by the assessee be subjected to tax in accordance therewith.
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