JUDGMENT Prakash Krishna :- These seven writ petitions have been filed by the manufacturers of electronic picture tubes (black and white), commissioning and manufacturing of electronic components. The dispute relates to the validity of circular dated March 18, 2002 issued by the Commissioner of Trade Tax. Assessment years 1995-96 to 1999-2000 are involved in all these petitions. As common questions of law and facts are involved in these petitions, as jointly agreed by the learned counsel for the parties, they were heard together and are being disposed of by a common judgment. Writ Petition No. 1721 of 2002 was considered as the leading case and the arguments have been advanced and considered with reference to the facts of the aforesaid writ petition. The petitioners of Writ Petition No. 1721 of 2002 are manufacturers of picture tubes. The assessments, both under the U.P. Trade Tax Act, 1948 (hereinafter referred to as, "the U.P. Act") and under the Central Sales Tax Act, 1956 (hereinafter referred to as, "the Central Act"), for these assessment years, were completed by levying tax at 2.5 per cent. under the U.P. Act and at two per cent. under the Central Act. Subsequent thereto the assessing officer realized that the tax should have been levied at 2.5 per cent. instead of two per cent. on the picture tubes under the Central Sales Tax Act and taking into consideration the notification dated October 10, 1995 being Notification No. TT-2-2473/11-6(1)/86-Act-74-56 Order 95, sought to reopen the assessments by invoking section 21 of the U.P. Act and where the assessment was barred by time, permission from the Additional Commissioner as required under section 21(2) of the U.P. Act was sought for and was granted. For certain assessment years, the assessment orders have been sought to be rectified by invoking section 22 of the U.P. Act by raising the rate of tax at 2.5 per cent. instead of two per cent. However, before the assessing authority could pass any order either under 21 or under section 22 of the U.P. Act, these writ petitions were filed questioning the very initiation of reassessment proceedings. The petitioners submit that the reassessment proceedings are not justified and no useful purpose is going to be served by resorting to the statutory remedy of appeal, etc., in view of the circular dated March 18, 2002 issued by the Commissioner, Trade Tax. The petitioners submit that the reassessment proceedings are not justified and no useful purpose is going to be served by resorting to the statutory remedy of appeal, etc., in view of the circular dated March 18, 2002 issued by the Commissioner, Trade Tax. By the said circular, the Commissioner, Trade Tax, has sought to interpret the notification dated October 10, 1995 already referred to hereinabove by providing that the said notification has been issued only in respect of such goods which are covered either under section 8(1) or 8(2) of the Central Act. The electronic goods being taxable at 2.5 per cent. in the State of U.P., its inter-State sales are covered by section 8(2A) of the Central Sales Tax Act. In these petitions, the legality and validity of the aforestated circular dated March 18, 2002 has been questioned. In the counter-affidavit, the said circular dated March 18, 2002 has been sought to be justified on the ground that the items manufactured by the petitioner are taxable at 2.5 per cent. in the State of U.P. The rate of tax under the Central Act has been provided under section 8(1) and sub-section (2) of the Central Sales Tax Act. Sub-section (2A) of the Central Sales Tax Act provides that if the rate of tax in the State is either nil or less than four per cent., the tax on inter-State shall be nil or as the case may be shall be calculated at lower rate. Hence, as per section 8(2A), the rate of tax under the Central Act should be 2.5 per cent. The notification dated October 10, 1995 is in respect of the tax payable under sub-section (2) of section 8 by any dealer at the place of business in the State of U.P. in respect of sales made by him from any such place of business in the course of inter-State trade or commerce of electronic goods, it shall be calculated at two per cent. The language of the notification under consideration, covers only those transactions which are covered either under sub-section (1) and or sub-section (2) of section 8 of the Central Sales Tax Act and not the transaction which is covered under section 8(2A) of the Central Sales Tax Act. In the rejoinder affidavit, the stand as taken in the writ petition has been reiterated. In the rejoinder affidavit, the stand as taken in the writ petition has been reiterated. Heard Shri Bharatji Agrawal, learned senior advocate, who advanced the leading argument on behalf of the petitioners. Shri Raj Nath N. Shukla and Shri Ashok Kumar, advocates adopted the arguments of the learned senior counsel. Shri U. K. Pandey, learned standing counsel, was heard in reply for the respondents. The petitioners submit that in view of the notification dated October 10, 1995 issued by the State Government under section 8(5) of the Central Act, on the sales made by the petitioner in the course of inter-State trade or commerce of electronic goods, tax will be calculated at two per cent. and was so levied. The Commissioner of Trade Tax wrongly interpreted the said notification of the State Government through its circular dated March 18, 2003 and therefore, the reassessment proceedings sought to be initiated are liable to be quashed being contrary to the statutory provisions. Elaborating the argument it was submitted that even otherwise a statutory notification issued in exercise of the power under section 8(5) of the Central Sales Tax Act in the public interest levying a tax at the rate of two per cent. on electronic goods cannot be modified, amended or changed on the basis of administrative circular dated March 18, 2002. In reply, the learned standing counsel supports the impugned circular and submits that the said circular is in no manner contrary to the statutory provisions nor by the said circular, the Revenue has sought any amendment, modification or change in the rate of tax of electronic goods. The said circular is merely of clarificatory in nature and is in line and in tune with the notification issued by the State Government, under section 8(5) of the Central Sales Tax Act. Considered the respective submissions of the learned counsel for the parties. The only point mooted in the present writ petitions is - Whether the circular dated March 18, 2002 in any manner violates, varies or modifies the notification dated October 10, 1995 issued by the State Government in exercise of its power under section 8(5) of the Central Act ? Section 8 of the Central Act with which we are presently concerned provides rate of tax on sales of goods in the course of inter-State trade or commerce. Section 8 of the Central Act with which we are presently concerned provides rate of tax on sales of goods in the course of inter-State trade or commerce. The Central Act divides inter-State sales into four categories, namely, (i) sales of any goods to the Government; or (ii) sales of goods which are declared to be of special importance in the inter-State trade or commerce; (iii) sales to a registered dealer; and (iv) sales to other persons. The inter-State sales in question which are sought to be taxed do not fall under sub-section (1) or clause (a) of sub-section (2) of section 8 of the Central Act. The sales were of goods other than the declared goods. It is also not in dispute that the electronic goods in question, i.e., the picture tubes and electronic components are taxable at 2.5 per cent. in the State of U.P. (two per cent. normal tax + 0.5 per cent. surcharge as per section 3E of the U.P. Act). This being so, the goods in question also do not fall under sub-section (2) of section 8 of the Act which provides that the tax shall be calculated in respect of goods other than declared goods, at 10 per cent. or at applicable to the sale or purchase of such goods inside the State whichever is higher. Sub-section (2A) of section 8 states that notwithstanding anything contained in clause (b) of sub-section (2), the tax payable under the Central Act by the dealer where intra-State Sales of the same under the State Sales Tax Act is exempt generally or at which is lower than four per cent., shall be nil or, as the case may be, shall be calculated at the lower rate. The point which we are trying to bring home is that the sale of commodity in question was admittedly taxed at of 2 1/2 per cent. in intra-State Sales and therefore, such commodity is liable to be taxed under section 8(2A) of the Central Act and not either under sub-section (2) or sub-section (1) of section 8 thereof. Having said so, we may have a look to the relevant notification issued under section 3A of the U.P. Act in this regard which is Notification No. 3402 dated October 1, 1994. Sl. Having said so, we may have a look to the relevant notification issued under section 3A of the U.P. Act in this regard which is Notification No. 3402 dated October 1, 1994. Sl. No. Description of goods Point of tax Rate of tax 1 2 3 4 74(a) (i) Electronic components, that is to say all types of passive components, resisters, capacitors, diodes and other active components, transistors, integrated sca e, large scale integration/very large scale integration chips, black and white picture tubes, colour picture tubes, power semi-conductors, audio tapes and video tapes, printed circuit boards/connec ors, relays, up to electronic components, precision electronic components, magnetic media, microwave tube, television components, television glass shell, electronic transducers, actuators, display evices that is light emitting diodes/liquid crystal diodes, micro motors, crystals, tape deck mechanism, etched and framed foils, electronic turners, deflection yokes, line output transformers, ele tro deposited copper foils, printed circuit board laminate, populated printed circuit boards, power supply devices, cabinet and plastic components; M or I 2% (ii) VCR, VCP, colour television, satellite receiver, video cassette, cordless phone, microwave oven and video games. M or I 6% (iii) All other electronic goods not specified anywhere else in the Schedule or in any other notification. M or I 4% A bare perusal of the said notification would show that in the State of U.P., electronic goods have been broadly categorized in three categories for rate purposes as is appearing from the entry referred to above. Now at this juncture, the notification dated October 10, 1995 issued under section 8(5) of the Central Act, which is under consideration may also be looked upon. "Whereas the State Government is satisfied that it is necessary so to do in the public interest; Now, therefore, in exercise of the powers conferred by sub-section (5) of section 8 of the Central Sales Tax Act, 1956 (Act No. 74 of 1956), the Governor is pleased to direct that with effect from October 10, 1995, the tax payable under sub-section (2) of the said section by any dealer having his place of business in the State of Uttar Pradesh in respect of the sales made by him from any such place of business in the course of inter-State trade or commerce of electronic goods shall be calculated at the rate of two per cent. whether or not the declaration in form 'C' or certificate in form 'D' covering such sale has been furnished." On a plain and meaningful reading of the notification under section 8(5) reproduced above would show that the State Government by means of the said notification has provided that with effect from October 10, 1995 the tax payable under sub-section (2) of section 8 of the Central Act by any dealer having his place of business in the State of U.P. in respect of the sales made by him from any such place of business in the course of inter-State trade or commerce of electronic goods shall be calculated at two per cent. The said notification besides many other things provides that it has been issued in respect of electronic goods. It further provides that the notification has been issued with the reference to such goods (electronic goods) on which the tax is payable under sub-section (2) of section 8 of the Central Sales Tax Act. Admittedly, the picture tubes and electronic components were taxed at 2 1/2 per cent. including the surcharge in respect of intra-State sale. The said notification dated October 10, 1995 is not applicable, on the facts of the present case, as the picture tubes fall for tax purposes under section 8(2A) of the Central Act. The said notification is applicable in respect of electronic goods in respect of all other electronic goods not specified anywhere else in the Schedule or in any other notification as provided in the notification dated October 10, 1995. The notification dated October 10, 1995 under section 8(5) of the Central Act is referable to only inter-State sales and purchases falling under sub-section (2) of section 8 of the Central Sales Tax Act and it does not cover inter-State Sales and purchases falling under sub-section (2A) of section 8. Under sub-sections (1) and (2) of section 8 of the Central Act, the rate of tax on the goods sold is generally four per cent. against the declaration form C/D or 10 per cent. or more at the goods are liable to be taxed under State law without declaration form. However, under section 8(2A), of the Central Act, the rate of tax would be less than four per cent. or exempt if the goods are subjected to tax at lower than four per cent. against the declaration form C/D or 10 per cent. or more at the goods are liable to be taxed under State law without declaration form. However, under section 8(2A), of the Central Act, the rate of tax would be less than four per cent. or exempt if the goods are subjected to tax at lower than four per cent. or generally exempt under the general law of the State. By sub-section (5) of section 8 of the Central Act, the State Government has been empowered to specify rate of tax payable on sale of goods under the Central Act which may be lower than the rate prescribed under sub-section (1) or (2) of section 8 of the Central Act, i.e., where the commodity is liable to be taxed at four per cent. or above, i.e., under sub-section (1) or sub-section (2), a lesser rate may be prescribed or the commodity may be exempted from payment of tax. Under sub-section (5) of section 8 of the Central Act, State Government cannot issue any notification in respect of goods which are liable to be taxed under the general law of the State at less than four per cent. In the present case we find that under the U.P. Act the electronics goods is generally liable to be taxed at 2.5 per cent. including surcharge which is lower than four per cent. and the notification issued under section 8(5) prescribed the rate of tax at two per cent. Thus the case in hand would be covered by sub-section (2A) of section 8 of the Central Act and not by sub-section (1) or sub-section (2) of section 8. Our, above view finds support from the phrase used "tax on such sales shall be calculated at such lower rates than those specified in sub-section (1) or sub-section (2) as may be mentioned in the notification". The use of words lower rates implies that rate of tax may be lowered down than the rate of tax as provided under the State Act. Further the reference of sub-section (1) or sub-section (2) is indicative of the fact that a notification can be issued only with respect to the rate of tax referred in aforestated sub-sections and not to sub-section (2A) of section 8. The circular therefore, clarifying the above legal position is not in any manner illegal or contrary to law. Further the reference of sub-section (1) or sub-section (2) is indicative of the fact that a notification can be issued only with respect to the rate of tax referred in aforestated sub-sections and not to sub-section (2A) of section 8. The circular therefore, clarifying the above legal position is not in any manner illegal or contrary to law. Much emphasis was laid by the petitioners on the following two decisions of the apex court : (i) Assistant Commissioner (Assessment), Sales Tax Special Circle, Trichur v. Janatha Expeller Co. [1992] 85 STC 105. (ii) Deputy Commissioner of Sales Tax v. Aysha Hosiery Factory (P) Ltd. [1992] 85 STC 106. In these cases the Supreme Court examined the levy of additional tax/surcharge, levied in the State in respect of intra-State sale or inter-State sales. In the case of Aysha Hosiery Factory (P) Ltd. [1992] 85 STC 106 (SC), the additional tax was levied on all taxable sales and charges in the State of Kerala, including the local sale of coir products, hosiery, etc. Under the Kerala Additional Sales Tax Act by providing that such goods were subjected to additional sales tax calculated at 10 per cent. of the rate of tax already imposed under the Kerala General Sales Tax Act, 1963, the result of it was that where the rate of tax was two per cent., the tax payable became 2.2 per cent. where it was three per cent. it was 3.3 per cent. and so on. The question for consideration in the case was as to whether the additional tax levied under the Kerala Additional Sales Tax Act is also to be considered as sales tax under the sales tax law of the State. The assessing authority therein in respect of inter-State sale held that a dealer was bound to pay the additional tax also in respect of inter-State sales, in addition to normal sales tax. The High Court disagreed with the said approach of the assessing officer and the matter was ultimately carried in appeal before the apex court. The apex court restored back the assessment order. It was held therein that if there is a subsequent notification by the State issued under section 8(5) of the Act, the rate prescribed under the said notification would prevail and the levy was made as per the rate of tax mentioned in the notification. The apex court restored back the assessment order. It was held therein that if there is a subsequent notification by the State issued under section 8(5) of the Act, the rate prescribed under the said notification would prevail and the levy was made as per the rate of tax mentioned in the notification. The said portion of the judgment was strongly relied upon by the petitioner in support of its contention. The apex court ultimately found therein that there was no notification under section 8(5), the liability to pay additional tax was found to be there. In the case of Janatha Expeller Co. [1992] 85 STC 105, the apex court ruled that the notification under section 8(5) of the Central Sales Tax Act being clear, it upheld the judgment of the High Court. Noticeably in the case of Aysha Hosiery Factory (P) Ltd. [1992] 85 STC 106, the apex court has not agreed with certain portion of the observations made by the High Court in the case of Janatha Expeller Co. [1992] 85 STC 105 (SC). The following observations of the High Court were reproduced in the aforestated judgment : "We are also of the view, that even in cases where tax is exigible under section 8(2A) of the Central Sales Tax Act for the inter-State sales, the Kerala Additional Sales Tax Act, 1978 (Act 20 of 1978), has no application. As stated already, in cases where the tax is payable under section 8(2A) of the Central Sales Tax Act, what is crucial or relevant is to ascertain, the appropriate sales tax law of the State, under which the tax is levied for the sale or purchase of the goods or the commodity, in question. Looked at from the angle, we have no doubt, that the appropriate sales tax law of the State, of which tax is levied, is the Kerala General Sales Tax Act, 1963. The Kerala Additional Sales Tax Act, 1978 (Act 20 of 1978), does not levy sales tax on the sale or purchase of the goods or commodity, in question. Looked at from the angle, we have no doubt, that the appropriate sales tax law of the State, of which tax is levied, is the Kerala General Sales Tax Act, 1963. The Kerala Additional Sales Tax Act, 1978 (Act 20 of 1978), does not levy sales tax on the sale or purchase of the goods or commodity, in question. We hold that the provisions of Act 20 of 1978 are inapplicable to a situation, where inter-State sales are to be taxed under section 8 or section 8(2A) or section 8(5) of the Central Sales Tax Act." To the aforesaid observations the apex court's following comments is apposite : "In the first place these observations are in the nature of obiter in view of the fact that the learned judges have accepted the interpretation placed by the learned single judge that in respect of a case where a notification has been issued under section 8(5) of the Central Sales Tax Act the amendment to the State Act will not have any effect on the notification. That should have been enough to dispose of the case but they have given an alternative reasoning which in our view is not correct and is against the provisions of section 8(2A) of the Central Sales Tax Act itself. For the purpose of applicability of section 8(2A) of the Central Sales Tax Act we have to look to the rate of tax applicable for the time being under the local Act and not a rate of tax which was applicable under the local Act at the time when Central Sales Tax Act was enacted. Any amendment in the local Act ultimately will have a reflection in the assessment of the inter-State sales. We have already discussed the scope of section 8(2A) of the Central Sales Tax Act in the light of those reasonings the passage extracted above in the judgment of the Division Bench is contrary to law and could not be accepted." In the aforestated case, the following observations of the apex court made with reference to section 8(5) of the Central Sales Tax Act are also relevant : "... Thus if an intra-State sale by the dealer is exempt then his inter-State sale also will be exempt. If the intra-State sale is taxed at a rate which is lower than four per cent. Thus if an intra-State sale by the dealer is exempt then his inter-State sale also will be exempt. If the intra-State sale is taxed at a rate which is lower than four per cent. then his inter-State sale of the same commodity shall also have to be taxed at the lower rate applicable in the State. But where the rate of tax applicable to intra-State sale was more than four per cent. then the rate applicable for inter-State will be 10 per cent. or the rate applicable for the local sale whichever is higher. ..." Notification in question has been issued under section 8(2) of the Central Sales Tax Act and the goods manufactured by the petitioners are exigible to tax not under section 8(2) but under section 8(2A) of the Central Sales Tax Act. Therefore, so far as the goods manufactured by the petitioner are concerned, there is no notification under section 8(5) of the Central Sales Tax Act and therefore, their goods are exigible at Rs. 2.5 per cent. including the surcharge as provided under section 3E of the U.P. Trade Tax Act. The ratio of the decision of the apex court in the case of Aysha Hosiery Factory (P) Ltd. [1992] 85 STC 106 is fully attracted. Having said so, we may consider the circular dated March 18, 2002 issued by the Commissioner of Trade Tax. By the said circular the Commissioner has drawn the attention of the authorities towards the notification dated October 10, 1995 issued under section 8(5) of the Central Sales Tax Act in respect of rate of tax on the inter-State Sale of "electronic goods". The Commissioner has sought to clarify the position that a notification under section 8(5) can be issued only for those goods which are covered either under sub-section (1) or sub-section (2) of section 8 of the Central Sales Tax Act. Meaning thereby notification was issued under section 8(5) of the Central Sales Tax Act for those goods on which trade tax is leviable at four per cent. and more. The trade tax on the electronic goods (picture tubes) including additional tax being 2.5 per cent., the tax shall be payable under section 8(2A). Tax on inter-State sales on such electronic goods is at 2.5 per cent. and the notification dated October 10, 1995 shall not apply to such transactions. The said circular clarifies the position of law correctly. The trade tax on the electronic goods (picture tubes) including additional tax being 2.5 per cent., the tax shall be payable under section 8(2A). Tax on inter-State sales on such electronic goods is at 2.5 per cent. and the notification dated October 10, 1995 shall not apply to such transactions. The said circular clarifies the position of law correctly. It by no means has modifies or altered or in any manner is in conflicts with the notification issued by the State Government dated October 10, 1995 under section 8(5) of the Central Act in respect of inter-State sale or purchases referable to section 8(2) of the Central Sales Tax Act. The submissions of the petitioners to the contrary therefore, is devoid of any substance and is liable to be rejected and is hereby rejected. To keep the record straight, although in the writ petition, it has been pleaded that no case for initiation of reassessment proceedings or as the case may be rectification proceedings has been made out by impugned notices but during the course of the argument no such argument except the argument noticed above were advanced in this regard. Section 3E of the U.P. Trade Tax Act provides levy of additional tax on certain dealers. In exercise of the powers under sub-section (3) of section 3E of the U.P. Trade Tax Act on August 1, 1990, the State Government issued Notification No. 1757 by providing that with effect from August 1, 1990 every dealer liable to pay tax under the Act, shall, in addition to the tax payable under the other provisions of the said Act in respect of the turnover of sales or purchases or both, as the case may be of any goods, other than declared goods, made on or after the aforesaid date, be liable to pay an additional tax at the rate of 25 per cent. on such tax and such additional tax shall be paid in the manner laid down for the payment of tax under the said Act. Strong reliance was also placed on a decision of the Madras High Court in Sree Ayyanar Spinning and Weaving Mills Limited v. State of Tamil Nadu [1998] 109 STC 205 in support of the writ petition. on such tax and such additional tax shall be paid in the manner laid down for the payment of tax under the said Act. Strong reliance was also placed on a decision of the Madras High Court in Sree Ayyanar Spinning and Weaving Mills Limited v. State of Tamil Nadu [1998] 109 STC 205 in support of the writ petition. On a close reading of the aforesaid judgment, it would show that the notification under section 8(5) of the Central Sales Tax Act was issued without specifying either sub-section (1) or sub-section (2) or section 8(2A) of the Central Sales Tax Act. The notification has been reproduced in paragraph 14 of the judgment. It says that the tax payable under the Central Sales Tax Act on sales of cotton yarn in the course of inter-State trade or commerce shall be calculated at the lower rate of two per cent. There being no specification of any of the sub-clause of section 8, which is not so here, the decision laid down therein is distinguishable and has no application to the controversy on hand. The observations made in paragraph 28 of the judgment, further supports our view. Viewed as above, the writ petition is devoid of substance. All the writ petitions are hereby dismissed with costs of Rs. 5,000 in each petition. "Lower rate" Under sub-sections (1) and (2) of section 8 of the Central Act, the rate of tax on the goods sold is generally four per cent. against the declaration form C/D or 10 per cent. or more at the goods are liable to be taxed under State law without declaration form. However, under section 8(2A) of the Act, the rate of tax would be less than four per cent. or exempt if the goods are subjected to tax at lower than four per cent. or generally exempt under the general law of the State. By sub-section (5) of section 8 of the Central Act the State Government has been empowered to specify rate of tax payable on sale of goods under the Central Act which may be lower than the rate prescribed under sub-section (1) or sub-section (2) of section 8 of the Central Act, i.e., where the commodity is liable to be taxed at four per cent. or above, i.e., under sub-section (1) or sub-section (2), a lesser rate may be prescribed or the commodity may be exempted from payment of tax. Under sub-section (5) of section 8 of the Central Act, State Government cannot issue any notification in respect of goods which are liable to be taxed under the general law of the State at less than four per cent. The only power which can be exercised is to exempt the goods from tax. In the present case we find that under the U.P. Act the electronics goods is generally liable to be taxed at 2.5 per cent. including surcharge which is lower than four per cent. and the notification issued under section 8(5) prescribed the rate of tax at two per cent. Thus the case in hand would be covered by sub-section (2A) of section 8 of the Central Act and not by sub-section (1) or sub-section (2) of section 8. Our above view finds support from the phrase used "tax on such sales shall be calculated at such lower rates than those specified in sub-section (1) or sub-section (2) as may be mentioned in the notification". The use of words lower rates implies that rate of tax may be lowered down than the rate of tax as provided under the State Act. Further the reference of sub-section (1) or sub-section (2) is indicative of the fact that a notification can be issued only with respect to the rate of tax referred in aforestated sub-sections and not to sub-section (2-A) of section 8. The circular therefore, clarifying the above legal position is not in any manner illegal or contrary to law.