/2023 INSC 0590/ 2023INSC590REPORTABLE IN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5731 OF 2009 Santhosh Maize & Industries Limited …AP PELLANT VS. The State of Tamil Nadu & Anr. …RESPONDENTS WITH CIVIL APPEAL NO. 5732 OF 2009 JUDGMENT DIPANKAR DATTA, J. THE CHALLENGE The present appeals before us, by special leave, ha ve been carried by the appellant from orders passed by a Division Bench of th e Madras High Court (“High Court”, hereafter). While the judgment and order dated 8th September, 2008 dismissing the writ petition 1 instituted by the appellant is challenged in C.A. No. 5731 of 2009, the order dated 10th February, 2009 1 Writ Pe��on No. 14283 of 1999 1 Digitally signed by Nisha Khulbey Date: 2023.07.0417:10:17 ISTReason: Signature Not Verified dismissing a review application2 seeking a review of the aforesaid judgment and order is under challenge in C.A. No. 573 2 of 2009. RELEVANT FACTS 2. The relevant facts, leading to institution of the presen t appeals, are noticed hereunder: a) The appellant, registered under the Tamil Nadu General Sales Tax Act, 1959 (“the Act”, hereafter), deals in maize starch sinc e 1975. The classi�cation of maize starch under the Act is the subj ect of dispute in the �rst of the two appeals. b) The Government of Tamil Nadu, vide a Noti�cation 3 (“Exemption Noti�cation”, hereafter) exempted the products of millets i ncluding maize from tax payable under the Act. The relevant extr act of the Exemption Noti�cation reads as under: “[…] the Governor of Tamil Nadu hereby exempts, with e �ect on and from the 1st April 1970, all sales of products of millet s (like rice, �our, brokens and bran of cholam, cumbu, ragi, thinai, va ragu, samai, kudiraivali, milo and maize) from the tax payable un der the said Act.” c) The Legislative Assembly of Tamil Nadu (“Legislature”, hereafter) amended 4 Schedule I to the Act, adding Part C and including Entr y No. 53 therein, which imposed a 5% tax on ‘sago and starch of any kind’ w.e.f. 12 th March, 1993. Later, through another amendment 5 , ‘sago and starch of any kind’ was moved to Entry No. 61 of Part B of Schedule I 2 Review Applica�on No. 135 of 2008 in W.P. No. 14283 o f 1999 3 No. 89 of 1970 dated 14 th March, 1970 4 The TNGST (Amendment) Act, 1993 (Act No. 24 of 199 3) 5 The TNGST (Second Amendment) Act, 1996 (Act No. 37 of 1996) 2 (“Taxation Entry No. 61”, hereafter) and the tax rate was reduced to 4% e�ective from 17 th July, 1996. d) The aforesaid amendment dated 12 th March, 1993 sparked concerns among maize starch dealers. One of them, M/s Lakshmi Star ch, sought a clari�cation from the Special Commissioner and Commissi oner of Commercial Taxes (“Commissioner”, hereafter). Vide Circular dated 14 th December, 1993, the Commissioner clari�ed that the exempti on would remain in e�ect — a speci�c noti�cation will p revail over a general entry in the Schedule. It was further stated tha t the process of obtaining maize starch from maize involves simple proce ssing; therefore, maize starch will be classi�ed as ‘maize pr oducts’ and covered by the Exemption Noti�cation. e) The Legislature next amended 6 the Act w.e.f. 1 st April, 1994. Entry No. 8 of Part B of Schedule III (“Exemption Entry No. 8”, hereafter) was inserted exempting “products of millets (rice, �our, brokens and bran of cholam, cumbu, ragi, thinai, varagu, samai, kudiraiv ali, milo and maize)” from taxation under the Act. The amendment retained the language of the Exemption Noti�cation except that the word ‘like’ was omitted. Although, in e�ect, the Exemption Noti�cation lost f orce with the amendment of the Schedule, nevertheless, the exemption on maize starch remained unchanged based on subsequent clari�cations issued by the Commissioner on 31 st December, 1996 and 6 th May, 1997. 6 The TNGST (Amendment) Act, 1994 (Act No. 32 of 19 94) 3 f)However, this position was followed by two subsequent developments - the latter being crucial for the present purpose. Fir stly, Section 28-A was inserted w.e.f. 6 th November, 1997 by way of an amendment 7 to the Act which empowered, by way of a statutory provisio n, the Commissioner to issue clari�cations concerning the rate o f tax under the Act. Secondly, after the insertion of Section 28-A, th e Commissioner issued a Circular dated 23 rd June, 1998, clarifying that Exemption Entry No. 8 does not encompass maize starch; the said entry only applies to products listed within the brackets and excludes maize starch which is distinct from maize �our and no t commonly understood as such by ordinary people or even dealer s. Being covered by Entry 67 of Part D of Schedule I, it will be taxed at 11%. However, a request having been received from the appellant for withdrawal of the Circular dated 23 rd June, 1998, the Commissioner vide a subsequent Circular dated 8 th October, 1998 cancelled the earlier Circular dated 23 rd June, 1998 and clari�ed that maize starch is taxable from 1st April, 1994, since Item 8 of Part B of Schedule III does no t include maize starch. In view of speci�c Entry No. 61 of Part D of Schedule I, i.e., “sago and starch of any kind”, it covers maize starch also, subject to a 4% tax to be levied w.e.f. 17 th July, 1996 and not tax at 11%. g) Questioning the aforesaid clari�cation, the appellant m ade a representation before the Commissioner which came to be re jected on 28 th June, 1999. The appellant was served with notices 8 for recovery of general sales tax to the tune of Rs 7,69,729/- for FY 1 998-1999, 7 The TNGST (Amendment) Act, 1997 (Act No. 60 of 199 7) 8 Dated 25 th June, 1999 and 6 th July, 1999 4 followed by a provisional assessment notice9 issued by the Commissioner. This triggered litigation between the partie s. THE HISTORY OF LITIGATION 3. The judicial trajectory of the case leading to the pres ent stage is set out hereunder: a) Assessment proceedings having been initiated, the appe llant approached the Tamil Nadu Taxation Special Tribunal (“ Tribunal”, hereafter) questioning the provisional assessment notic es and challenging the validity of the Circular dated 8 th October, 1998. The petitions 10 came to be dismissed, vide judgment dated 29 th July, 1999, with the observation that it was not proper for the appe llant to independently challenge the said Circular and also co ntest the assessment proceedings at the same time; the questions reg arding the validity of the Circular, therefore, could be contes ted in the assessment proceedings. b) It was, at this stage, that the appellant resorted to the writ jurisdiction of the High Court seeking quashing of the order of the Tribunal dated 29 th July, 1999 as well as praying that the Circular dated 08th October, 1998 be declared as ultra vires Section 28-A, Exemption Entry No. 8, and Articles 14, 19(1)(g) and 265 of the Constitution o f India; alternatively, it was prayed that the said Circular sho uld only apply 9 Dated 27 th July, 1999 10 Original Pe��on Nos. 881 and 883 of 1999 5 prospectively from 08th October, 1998 rather than retroactively from 17 th July, 1996. c) The Division Bench of the High Court initially dismiss ed the appellant's writ petition on 25 th August, 1999, stating that the appellant could agitate all the points before the assessing authority, who would proceed according to law. Dissatis�ed with this ruling, the appellant approached this Court 11 . By an order dated 3 rd November, 2000, the appeal was allowed, and the writ petition restored to �l e to be decided by the High Court. This Court directed that since the validity of the Circular dated 8 th October, 1998 issued under Section 28A was under challenge, it would be more appropriate for the High C ourt to decide this legal point rather than remanding the case to the lo wer authorities. d) Upon hearing the parties, the Division Bench of the Hi gh Court dismissed the writ petition on merits vide judgment dated 8 th September, 2008. The High Court was of the view that the Exemption Noti�cation and subsequent circulars issued by the Commi ssioner, which sought to exempt maize starch from taxation, do n ot hold binding authority as they lack statutory backing. This is because Section 28-A, which empowers the Commissioner to issue clari�cations, only became e�ective from 6 th November, 1997. Circular dated 8 th October, 1998 carries legal validity as it was issue d subsequent to the insertion of Section 28-A. Having con cluded that maize starch will not be entitled to the bene�t of exempti on, the High 11 Civil Appeal Nos. 6176 of 2000 6 Court upheld the validity of the Circular dated 8th October, 1998 which classi�ed maize starch under Entry No. 61 subject to a 4% tax. e) Aggrieved by the decision, the appellant preferred a review application. Observing that no case for interference h ad been set up by the appellant, the High Court dismissed the review ap plication vide its order dated 10 th February, 2009. SUBMISSIONS OF THE PARTIES 4. Appearing on behalf of the appellant, Mr. K.K. Mani, learned counsel, advanced the following submissions: a) The High Court failed to consider the correct entry pe rtaining to the assessment year 1998-99. Exemption Entry No. 8 clearly outlined an exemption in favour of products of millet, including maiz e, because maize starch is in the form of �our, though the �our is not obtained by mere grinding of the grains, but rather through the trea tment of maize by soaking it in water, subjecting it to various proc esses, and ultimately obtaining starch, which is sold as �our, and this process would certainly result in the sole product of millet r etaining the �our form. This is distinct from Taxation Entry No. 61, whic h pertains to ‘sago and starch of any kind’ and sago being derived from tapioca, a combined interpretation of the phrase ‘sago and starch o f any kind’ would exclude maize starch and encompass only tapioca starch. 7 b)The decision in Reliance Trading Company, Kerala vs. State of Kerala 12 was referred to in support of the contention that an exemption will only arise when there is a liability to p ay tax. Section 3(2) read with Schedule I creates a tax liability on ‘s ago and starch of any kind’. However, Section 8 read with Schedule III creates an exemption in favour of maize starch, Exemption Entry No. 8 will, therefore, override Taxation Entry No. 61. c) The decisions of the High Court in State of Tamil Nadu vs. Lakshmi Starch 13 and State of Tamil Nadu vs. TVL. Indras Agencies (P) Ltd. 14 were also placed to support the contention that Exemption Entry No. 8 derives its origin from the Exemption Noti�ca tion, the validity of which was upheld in the aforesaid former j udgment and maize starch was accordingly exempted from tax. Exemption Entry No. 8, therefore, is nothing but a re-enactment of the langu age of the Exemption Noti�cation in the form of a statutory provision and re�ects the intention of the Legislature to exempt maize starch fro m tax. d) As regards the omission of the word ‘like’, it was co ntended that the amendment having retained the language of the Exemption Noti�cation, the omission of the word ‘like’ would, there fore, not make any di�erence to the scope of the entry in the light of the consistent practice to exempt maize starch from taxation under Exemption Entry No. 8. 12 (2011) 15 SCC 762 13 (1990) SCC OnLine Mad 777 14 T.C.(R) 902/1999 8 e)It was also contended that the High Court made an erron eous assessment in both the writ petition and the review appl ication by considering Entry No. 44 of Part B of Schedule III f or the assessment year 1998-1999 which, as per the Court, excludes maize . However, the aforesaid entry was introduced only in 2002 vide an amendment 15 , wherein the reference to maize was explicitly removed. Prior to that amendment, Exemption Entry No. 8 which included maize was applicable. f) It is settled law that the power under Section 28-A of the Act cannot be exercised contrary to the statutory scheme of the Act, more particularly when the issue of classi�cation has been settled by a court of law. This is evident from the State’s consistent pra ctice to treat maize starch as exempt from tax, as con�rmed by way o f a series of circulars issued over time categorically exempting maize starch from tax liability. Having regard to the clari�cations issue d in favour of exemption, the Circular dated 8 th October, 1998 requiring the recovery of taxes retrospectively is a mere change of opinion without cogent reason and, therefore, is liable to be quashed. g) In any event, the aforesaid Circular cannot have a re trospective e�ect and will take e�ect only from the date of issue, i.e., on and from 8th October, 1998. 5. Finally, submitting that for the assessment year 1998-199 9 the appellant is entitled to exemption from tax on maize starch in acc ordance with 15 The TNGST (Fourth Amendment) Act, 2002 9 Exemption Entry No. 8, Mr. Mani prayed that the orders under challenge be set aside by declaring the appellant’s entitlement to exe mption; consequently, the appeals be allowed. 6. Mr. C. Kranthi Kumar, learned counsel appearing for the respondents while supporting the impugned judgment, contended as follows: a) Firstly, in the Assessment Year 1998-1999, maize starc h will fall under Taxation Entry No. 61, categorized as ‘sago and starch of any kind’, and will be subject to a 4% tax rate. The term ‘starch o f any kind’, encompasses all types of starch, including maize starch . The decision in Associated Cement Company Ltd. vs. Commissioner of Customs 16 was relied on to support the contention that the words ‘any kind’ ought to be interpreted in an inclusive man ner to include all kinds of goods within its ambit. b) Secondly, the Exemption Noti�cation gained statutory suppo rt starting only from 1 st April, 1994, through an amendment that introduced Exemption Entry No. 8 exempting products of millets. Howeve r, Taxation Entry ‘sago and starch of any kind’ had alrea dy existed since 1993 and hence, was the applicable entry. c) Thirdly, Exemption Entry No. 8 modi�ed the exempting provi sion as provided under the Noti�cation and omitted the word ‘like ’ which restricted the bene�t of the exemption only to the items spec i�ed therein. The decisions of this Court in Union of India vs. Tulsiram 16 (2001) 4 SCC 593 10 Patel17 and B. Shankara Rao Badami vs. the State of Mysore 18 were placed in support of the maxim expressum facit cessare tacitum. The contention put forth is that when speci�c matters are expressly mentioned, anything not mentioned should be deemed to hav e been excluded. d) Fourthly, Exemption Entry No. 8 envisages maize which i s a raw product and not maize starch which is a processed pr oduct. This proposition is further emphasized by the mention of items like ‘�our’ and ‘bran of cholam’ in the exempting entry which are pr ocessed products. e) Finally, the legislative intent is clearly discernible from the 2002 amendment, wherein Exemption Entry No. 8 was repositioned as Entry No. 44, and the speci�c reference to 'maize' was elimi nated, thereby denying exemption to all the maize products. 7. Mr. Kumar, thus, submitted that the appeals being devoid of any merit are liable to be dismissed. He prayed for an order to that e �ect. STATUTORY SCHEME UNDER THE ACT 8. The entries under Schedule I are taxed under Section 3 (2) of the Act while the entries under Schedule III are exempted under Sectio n 8 thereof. 17 (1985) 3 SCC 398 18 (1969) 1 SCC 1 11 9.Exemption Noti�cation dated 14 th March, 1970 held the �eld in excess of two decades. While the Exemption Noti�cation was in forc e, the Act was amended by Act No.24 of 1993. The existing Schedule I was replaced with a new Schedule, and ‘sago and starch of any kind’ c ame to be inserted at Entry 53 of Part C of Schedule I with tax rate of 5%. 10. Act No. 32 of 1994, i.e., the Tamil Nadu General Sale s Tax (Amendment) Act, 1994, further amended the Act. Entry 8 in Part B of Schedule III included the item which was hitherto covered by the Exempti on Noti�cation and, thus, the same ceased to be operative with such amendment. 11. By Act No. 37 of 1996, the rate of tax was reduced fro m 5% to 4% in respect of ‘sago and starch of any kind’. 12. Considering that the statutory scheme as regards the clas si�cation of 'maize' underwent several changes over time, we deem it appropriate to provide a comprehensive overview of the applicable tax ing and exempting entries at relevant time periods. To facilitate clarity, the following table enumerates the applicability of these entries: TAXING ENTRIES From To Entry No. Description Rate of Tax 12.03.1993 16.07.1996 53 of Part C of Schedule Isago and starch of any kind5% 17.07.1996 26.03.2002 61 of Part B of Schedule Isago and starch of any kind4% 27.03.2002 ------------ 22(vi) of Part B of Schedule Isago and starch of any kind4% 12 EXEMPTING ENTRIES From To Entry No. Description 14.03.1970 31.03.1994 Noti�cation No 89/1970products of millets ( like rice, �our, brokens and bran of cholam, cumbu, ragi, thinai, varagu, samai, kudiraivali, milo and maize) 01.04.1994 26.03.2002 8 of Part B of Schedule IIIproducts of millets (rice, �our, brokens and bran of cholam, cumbu, ragi, thinai, varagu, samai, kudiraivali, milo and maize) 27.03.2002 ------------ 44 of Part B of Schedule IIIproducts of millets (rice, �our, brokens and bran of cholam, cumbu, ragi, thinai, varagu, samai, kudiraivali, and milo) ANALYSIS AND FINDINGS 13. We have considered the submissions advanced by learne d counsel for the parties and have also perused the materials on record. 13 14.While we are not ad idem with all the reasons assigned by the High Court in the impugned judgment, we see no reason to di�er with the ultimate conclusion reached by it. We would, therefore, procee d to assign our own reasons for agreeing with the High Court that the appe llant is not entitled to any relief. 15. The Exemption Noti�cation was erroneously held by the Hi gh Court not to have statutory backing. Recital thereof shows the sour ce of power. Exercise of power was in terms of Section 17 of the Ac t, which appears to be the repository of the State Government’s power to exempt payment of tax. However, nothing really turns on it in view of th e several Amendment Acts by which the Schedules were amended from time to time . Decision on C.A. No.5731 of 2009 has to be rendered not based on the Exemption Noti�cation but on the terms of the Act read with the Sche dules thereto as it stood on 17 th July, 1996, when Act No.37 of 1996, i.e., the Tamil Nadu General Sales Tax (Second Amendment) Act, 1996 came into force. Indeed, the Act was amended further with e�ect from 27 th March, 2002 by Act No.18 of 2002, i.e., the Tamil Nadu General Sales Tax (Fourth Amendment) Act, 2002, but the same being a post-millennium event i s admittedly beyond the period under consideration, i.e., 1998-99; hence, we need not be too concerned with the latter amendment. 16. It would appear from the conspectus of the statutory prov isions as delineated above that there were two entries in the �eld at or about the period of the relevant assessment year, i.e., “sago a nd starch of any kind” in Schedule I, referred by us as Taxation Entry No.61 , and “products of 14 millets (rice, �our, brokens and brans of cholam, cumbu, ragi, thinai, varagu, samai, kudiraivali, milo and maize)” in Sche dule III which we are referring to as Exemption Entry No.8. 17. When Act No.32 of 1994 amended Schedule III of the Ac t, Exemption Entry No.8 did not include the word ‘like’ which was hither to there in the Exemption Noti�cation [No. 88 of 1970 dated 14 th March, 1970]. According to English grammar, the word “like” can be used as a v erb, as a noun as well as a preposition depending upon its setting. It h ad been used in the Exemption Noti�cation as a ‘noun”. Once it becomes clear from Exemption Entry No.8, as introduced by Act No.32 of 1994, that ( i) it does not include the noun “like” as the �rst word within brackets and (i i) that maize is only included along with rice, �our, etc. (and not maize s tarch), it is only those items within the brackets which, for the purposes of exe mption, qualify as products of millets. It is, therefore, those products of millets speci�cally indicated, which are entitled to exemption under Section 8 of the Act read with Schedule III as per Exemption Entry No.8. 18. Can maize starch be considered a millet product, as i n Exemption Entry No.8, for the present purpose? We do not think so. Ma ize is the raw product, whereas maize starch is a processed product. W hile we are bound to hold that maize is entitled to exemption in terms of Exemptio n Entry No.8 as it stood prior to the relevant assessment year, maize starch being a product of maize derived through mechanical process, it cannot be read as “like maize”, the “like” having been excluded by A ct No. 32 of 1994. Maize starch being a kind of starch, it is covered b y Taxation Entry No. 61 15 as introduced by Act No.37 of 1996 which is to the e�ect “… starch of any kind ”. The dictionary meaning of the word “any” is “one or same or all”. In Black’s Law Dictionary, it is explained that the word ‘any’ has diverse meaning and may be employed to indicate ‘all’ or ‘every ’ as well as ‘same’ or ‘one’ and its meaning in a given statute depends upo n the context and subject matter of the statute. Had the legislature intended to exclude any starch, including maize starch, a speci�c provision e xcluding it would have been made. 19. The decision in Associated Cement Company Ltd. (supra) has taken the view that the words ‘any other kind of moveable prop erty’ in clause (e) of Section 2(22) of the Customs Act de�ning ‘goods’ wou ld include all tangible movable articles as goods for the purposes the reof. 20. We may also in this connection refer to the decision in M/s. Associated Indem Mechanical (P) Limited vs. West Bengal Small I ndustries Development Corporation 19 where, while construing ‘any premises’ contained in the provisions of the West Bengal Premises Tenancy Act, 1956, it has been held by this Court that ‘any’ is a word of very wide meaning and prima facie the use of it excludes limitation. 21. We hold that ‘any kind’ in the context the same has been used in the taxation entry clearly indicates that it has been used in a wide sense extending from one to all and admits of no exception. 22. That in Taxation Entry No.61 ‘starch of any kind’ is preceded by ‘sago’ does not, in our opinion, make any material di�erence. Sago is a starch 19 (2007) 3 SCC 607 16 extracted from the pith, or spongy core tissue of various tropical palm stems. Therefore, what is taxable under Taxation Entry N o.61 is ‘sago’, which itself is a starch, as well as starch of any ki nd which would obviously include maize starch. 23. Trite to say, the Legislature may not have intended two e ntries for the self- same commodity, one under the exempted category and the oth er under the taxable entry. Therefore, maize starch has to be eithe r covered by Taxation Entry No.61 or Exemption Entry No.8. For the pur pose of ascertaining which of the two is the applicable entry, w e need not labour much having regard to the language in which the two entri es are expressed. Taxation Entry No.61 provides a more speci� c description and maize starch undoubtedly being a ‘kind of starch’ woul d, therefore, be comprehended in it. This is more so because what is co vered by Exemption Entry No.8 is maize, which is a product of mil let. The position would have been otherwise if Exemption Entry No.8 or an y other entry in Schedule III carried the description of product of mai ze instead of ‘product of millet’. 24. Law is well settled that if in any statutory rule or sta tutory noti�cation two expressions are used - one in general words and the other in special terms - under the rules of interpretation, it has to be under stood that the special terms were not meant to be included in the general expr ession; alternatively, it can be said that where a statute contain s both a general provision as well as a speci�c provision, the latter mu st prevail. 17 25.What emerges from the above discussion is that Taxation Entry No.61 is relatable to ‘starch’ of any kind whereas Exemption Entry No.8 relates to products of ‘millet’. 26. Looking at the speci�c (Taxation Entry No.61) in contra distinction with the general (Exemption Entry No.8), there can be no manner of doubt that maize starch would be covered by the taxation entry and not by the exemption entry. 27. The contention advanced on behalf of the appellant tha t clari�cation provided by the Commissioner could not have been made a pplicable with retrospective e�ect is, in our considered opinion, wi thout substance. The clari�cation vide Circular dated 8 th October, 1998 was issued in exercise of power conferred by the statute (i.e., Section 28-A of th e Act). Whenever a clari�cation pursuant to an application made by a regis tered dealer as to the applicable rate of tax is issued under sub-section (1), or the Commissioner on his own clari�es any point concerning the rate of tax under the Act, or the procedure relating to assessment an d collection of tax as provided for under the Act is issued under su b-section (2), the object is to make the rate of tax explicit what is otherw ise implicit. The contention as raised, if accepted, would defeat the obj ect of issuing the clari�cation unless it were construed to have retrospec tive e�ect. What the clari�cation provided by the Commissioner does is to clear the meaning of the two entries which was already implicit bu t had given rise to a confusion. A clari�cation of this nature, therefore , is bound to be retrospective. 18 28.Also, having regard to the nature of clari�cation issue d, we hold that Circular dated 8 th October, 1998 does not run counter to the provisions o f the Act. 29. We have considered the decisions cited by Mr. Mani in Lakshmi Starch Limited (supra) and TVL. Indras Agencies (P) Limited (supra). For the reasons that we have assigned above, we hold that the said decisions do not aid the petitioner. CONCLUSIONS 30. The impugned judgment is upheld albeit for reasons no t assigned by the High Court. Finding no merit in the appeals, we dismis s the same. Parties shall, however, bear their own costs. ……………………………………J (S. RAVINDRA BHAT) ……………………………………J (DIPANKAR DATTA) New Delhi; July 04, 2023. 19