Judgment :- (Prayer in WA: Appeal filed under Clause 15 of the Letters Patent against the order, dated 02.9.2006 passed in M.P.No.2 of 2006 in W.P.No.30256 of 2006 on the file of this Court. Prayer in WP: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records of the second respondent in Asst.No.2440839/2003-04, dated 15.5.2006 and quash the same as illegal and further pass such further orders.) A.P. Shah, C.J. Heard the learned counsel appearing for the parties. The learned Special Government Pleader appearing for the respondents waives service. By consent, the writ petition itself is taken up for final hearing along with the writ appeal. 2. The petitioner is a registered dealer both under the Tamil Nadu General Sales Tax Act, 1959 and the Central Sales Tax Act, 1956. The petitioner is engaged in the business of sale of Compacting Machine to the Spinning Mills. For the year 2003-2004, the petitioner had reported a total and taxable turnover of Rs.77,69,000/- exigible to tax at 4% and the same was duly accepted and assessment was finalised. Subsequently, the second respondent proposed a revision of assessment vide his proceedings, dated 24.2.2006 on the ground that Compacting Machinery dealt with by the petitioner would fall under Entry No.20 of Part D of the First Schedule attracting 12% tax and penalty is also leviable for the shortfall of tax paid. The petitioner filed their objections vide letter, dated 19.3.2006 contending inter alia that Compacting Machinery is a 'Textile Machinery' and hence it cannot be categorised under General Entry No.20. The second respondent vide his order, dated 15.5.2006, relying upon the clarification issued by the Commissioner of Commercial Taxes, Chennai, dated 23.11.2005 vide clarification No.205/2005, held that the Compacting Machinery would fall under Entry No.20 and thus exigible to tax at 12%. Consequently, the second respondent imposed additional levy of tax at the rate of 12% amounting to Rs.6,21,520/- and penalty at the rate of 125% amounting to Rs.7,76,900/-. The order of the second respondent is impugned in this writ petition under Article 226 of the Constitution of India. 3. Consequently, the second respondent imposed additional levy of tax at the rate of 12% amounting to Rs.6,21,520/- and penalty at the rate of 125% amounting to Rs.7,76,900/-. The order of the second respondent is impugned in this writ petition under Article 226 of the Constitution of India. 3. The learned counsel appearing for the petitioner strenuously contended that any clarification issued by the first respondent can only be prospective in operation and cannot be retrospective for the simple reason that the assessments settled or returns filed and acted upon in lieu of an earlier clarification or circular could never be reopened on the basis of a subsequent clarification or circular. Our attention was drawn to the earlier clarification issued by the first respondent vide his Communication, dated 02.12.1998 under Section 28-A of the Tamil Nadu General Sales Tax Act, 1959, whereby it was clarified that the Compacting Machinery would fall under Entry 76 in Part-B of the First Schedule and is exigible to tax at 4% with effect from 17.7.1996. 4. In support of his submission, the learned counsel relied upon various judgments of the Supreme Court including the judgment in Paper Products Limited -Vs- Commissioner of Central Excise ( 1999 (112) E.L.T. 765 ), wherein it was held that the Revenue can withdraw the earlier clarification issued with prospective effect and not with retrospective effect. He also relied upon a decision of the Division Bench of this Court in Mohan Breweries & Distilleries Ltd. -Vs- Commercial Tax Officer, (139 S.T.C. 477). 5. In reply, the learned Special Government Pleader submitted that a clarification issued under sub-section (3) of Section 28-A of the Tamil Nadu General Sales Tax Act, 1959 cannot bind the sales tax authorities acting under judicial or quasi-judicial capacity. He submitted that such clarifications are communicated to the concerned dealers, but even so nothing prevents the State from recovering the tax, if in truth, such tax was leviable according to law. He further submitted that there can be no estoppel against the statute and the understanding of the Commissioner whether in favour or against the assessee, is nothing more than his understanding and opinion. He further submitted that there can be no estoppel against the statute and the understanding of the Commissioner whether in favour or against the assessee, is nothing more than his understanding and opinion. In support of his submission, learned Special Government Pleader placed reliance on Bengal Iron Corporation -Vs- Commercial Tax Officer (1993) 90 STC 47 (SC) and a judgment of the Division Bench of this Court in P.F.F.R. (Mad.) Pvt. Ltd -Vs- Commissioner of Commercial Taxes, (2005) 140 STC 97). 6. The point involved in this petition is no more res integra. The Supreme Court in State Bank of Travancore V. Commissioner of Income-Tax, (1986) 158 ITR 102) held that even though the clarifications issued by the Revenue being executive in character cannot alter the provisions of the Act, since they are in the nature of concessions, they can always be prospectively withdrawn. In Keshavji Ravji & Co. V. Commissioner of Income-Tax, (1990) 183 ITR 1), while dealing with Section 119 of the Income-tax Act, which is pari materia to Section 28-A of the Tamil Nadu General Sales Tax Act, the Supreme Court held that the benefits of such circulars to assessees have been held to be permissible even though the circulars might have departed from the strict tenor of the statutory provision and mitigated the rigour of law. In Collector of Central Excise, Patna V. Usha Martin Industries, (1998) 111 STC 254), a three-Judge of the Supreme Court held that when the Central Board of Excise and Customs made all others to understand a notification in a particular manner and when the latter have acted accordingly, it is not open to the Revenue to turn against such persons on a premise contrary to such instructions and such circulars would be binding on the department. 7. The Supreme Court in Paper Products Ltd. V. Commissioner of Central Excise, (1999) 112 Elt 765 ), while interpreting Section 37-B of the Central Excise Act, 1944 which is pari materia to Section 28-A of the Tamil Nadu General Sales Tax Act held as follows: ''It is clear from the above said pronouncements of this Court that, apart from the fact that the Circulars issued by the Board are binding on the Department, the Department is precluded from challenging the correctness of the said Circulars even on the ground of the same being inconsistent with the statutory provision. The ratio of the judgment of this Court further precludes the right of the Department to file an appeal against the correctness of the binding nature of the Circulars. Therefore, it is clear that so far as the Department is concerned, whatever action it has to take, the same will have to be consistent with the Circular which is in force at the relevant point of time." 8. In Collector of Central Excise, Vadodra V. Dhiren Chemical Industries, 126 STC 122, the Supreme Court observed as follows: ''11. We need to make it clear that, regardless of the interpretation that we have placed on the said phrase, if there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretation upon the said phrase, that interpretation will be binding upon the Revenue." Similar is the view in UCO Bank V. Commissioner of Income-Tax, (1999) 237 ITR 889, Commissioner of Sales Tax, U.P. V. Indra Industries, (2001) 122 STC 100, and Commissioner of Customs, Calcutta V. Indian Oil Corporation Ltd., (2004) 165 ELT 257 . 9. In Mohan Breweries & Distilleries Ltd. v. C.T.O., 139 STC 477, the Division Bench of this Court after examining the aforesaid decisions held as follows: ''8.6.10. It is, therefore, clear that even though the clarification dated November 9, 1989 is executive in nature, the same is binding on the authorities till the concessions given to the petitioner under the clarification were withdrawn, which could be done only prospectively, viz., in the instant case, with effect from January 28, 2002, and the revenue could not refuse the benefit of the clarifications dated November 9, 1989 and December 27, 2000 in respect of levy of purchase tax under section 7-A of the Act for the impugned assessment year 1996-97." 10. It is thus clear that the clarification issued by the Commissioner of Commercial Taxes, dated 23.11.2005 cannot affect prejudicially the assessee in the assessment year in question. The learned Special Government Pleader, however, placed reliance on a two Judge Bench judgments in Bengal Iron Corporation V. Commercial Tax Officer, (1993) 90 STC 47), cited supra and submitted that the clarification cannot be contrary to the statute and there cannot be estoppel against the statute. We have gone through the decision in Bengal Iron Corporation case. The learned Special Government Pleader, however, placed reliance on a two Judge Bench judgments in Bengal Iron Corporation V. Commercial Tax Officer, (1993) 90 STC 47), cited supra and submitted that the clarification cannot be contrary to the statute and there cannot be estoppel against the statute. We have gone through the decision in Bengal Iron Corporation case. In that case the Apex Court was concerned with Section 42 of the Andhra Pradesh General Sales Tax Act which confers power on the State Government to remove difficulties. Sub-section (1) confers the said power to meet the problems arising from transition from the previous Sales Tax Act to the present Sales Tax Act. An order under sub-section (1) is required to be published in the Andhra Pradesh Gazette. Sub-section (2) is general in nature. In the context of the direction issued under Section 42 by the State Government, the Court observed that the understanding of the Government, whether in favour or against the assessee, is nothing more than its understanding and opinion. We do not think that this decision has any application to the facts of the present case. 11. In the judgment of the Division Bench in Pizzeria Fast Foods Restaurant (Madras) Pvt. Ltd. V. Commissioner of Commercial Taxes, Chennai, (2005) 140 STC 97), cited supra, the question to be decided was whether a writ petition was maintainable against the clarification issued by the Commissioner under Section 28-A of the Tamil Nadu General Sales Tax Act, wherein the Court held that though the circular issued by the Commissioner under Section 28-A is not binding on the assessing authority or the appellate authority, yet the Court cannot overlook the fact that since the Commissioner is a superior authority to the assessing officer or appellate authority, it would be impracticable to expect the subordinate authority to take a view contrary to the view expressed by the Commissioner and hence the writ petition would be maintainable. This judgment has also no application to the facts of the present case. 12. In the result, the writ petition is allowed. It is declared that the clarification, dated 23.11.2005 would have only prospective application and consequently the impugned Assessment Order of the second respondent, dated 15.5.2006 is quashed and set aside. In view of the above order, the writ appeal does not survive and it is dismissed. Consequently, the connected miscellaneous petitions are closed. No costs.