1. By this order it is proposed to dispose of an application made by the Commissioner, Sales Taxes, J&K, Govt. under Section 12-D of the Jammu and Kashmir General Sales Tax Act, 1962. for reference to the Hon'ble High Court of Jammu and Kashmir. In order to understand the matter under consideration in its proper perspective, a resume of what has been stated by the applicant in his application is given below:- (A) That the Commissioner Commercial Taxes is the principal executive authority charged with the duty of administering the J&K GST Act, 1962/J&K VAT Act, 2005 and Rules, framed thereunder, and has the power, under section 25-C and 87 respectively, to determine an issue referred to it either by a dealer/person or by a departmental authority. (B) That one registered dealer namely M/s Mulkh Raj and sons, 26-A Nehru Market, Jammu filed an application, under section 87 of the J&K VAT Act, 2005 before the Commissioner Commercial Taxes, J&K Government, seeking clarification as to what is the rate of tax on the commodity "MAKKI CHIDWA (PAWA)". (C) That after the receipt of this application, the issue raised by the said dealer was thoroughly examined by the Commissioner Commercial Taxes in the light of two judgments, relied upon by the said dealer, and it was found that the issues in the two judgments cited, were different and not relevant for determining the issue involved in the application filed by the dealer. (D) That the Commissioner Commercial Taxes, after minute examination of the issue raised by the aforesaid dealer, issued clarification No.40 of 2008 dated 14.11.2008 holding that "Makki Pawa is obtained from maize and becomes entirely different from the grain, once it is processed. Therefore, it cannot be treated as food grains. The Makki Pawa being unspecified shall fall within entry 165 of Schedule D to SRO 167 dated 16.06.2005." (E) That the said dealer M/s Mulkh Raj & Sons, through its proprietor Shri Suresh Gupta, purportedly felt aggrieved by the said clarification issued, by the Commissioner Commercial Taxes, and filed writ petition OWP No. 1074/2009 titled Mulkh Raj & Sons vs. State of J&K & others before the Hon'ble High Court at Jammu (F) That the Non-applicant i.e. M/s Shree Amba Food Grains Co. is a family-concern of M/s Mulkh Raj & Sons. M/s shree Amba Food Grains Co. is a family-concern of M/s Mulkh Raj & Sons. M/s shree Amba Food Grains Co. through its proprietor, Manju Gupta, wife of Suresh Gupta, a dealer registered with the Commercial Taxes Circle "D" Jammu, was assessed by the Assessing Authority Circle "D" Jammu for the accounting years 2000-01, 2001-02 and 2002-03 under the provisions of the J&K General Sales Tax Act, 1962 vide order dated 28.3.2009 and demand, on account of sales tax, interest and penalty, was raised against the non-applicant, as the non-applicant had not charged any sales tax on Makii Chidwa by his self-interpretation that Makki Chidwa was non-taxable. (G) That the non-applicant No.1 felt aggrieved by the assessment order dated 28.03.2009, passed by Assessing Authority Circle "D" Jammu, and filed a statutory appeal under section 11 of the J&K GST Act, 1962 before the Deputy Commissioner, Commercial Taxes (Appeals) Jammu - Appellate Authority . The said appeals were considered and finally dismissed by the Appellate Authority vide order dated 31.07.2009. (H) That the non-applicant M/s Shree Amba Food Grains Co. challenged the said order of Appellate Authority before the J&K State Sales Tax Appellate Tribunal, Jammu by way of a second appeal in terms of section 11-A of the J&K GST Act, 1962. (I) That during the pendency of the aforesaid second appeal before the Hon'ble Tribunal, the writ petition OWP NO.1074/2009 titled Mulkh Raj and sons vs. State of J&K & others, assailing clarification No.40 of 2008, was dismissed in default of appearance and for non-prosecution. After dismissal of the said writ petition, the clarification issued by the Commissioner Commercial Taxes attained finality. (J) That the Hon'ble Tribunal thereafter considered the second appeal filed by the non-applicant and vide order dated 26.5.2010 allowed the said second appeal by arriving at a conclusion contrary to the issue determined by the Commissioner Commercial Taxes, vide clarification No.40 of 2008, and thereby overstepping and transgressing its jurisdiction by commenting upon an issue which had been set at rest by the Commissioner Commercial Taxes under section 87 of the J&K VAT Act, 2005. It is submitted that the Learned Tribunal has a very limited power and jurisdiction to see the legality, or otherwise, of the orders passed by the first Appellate Authority under section 11 of the J&K GST ACT 1962 and section 72 of the J&K VAT Act, 2005. It is submitted that the Learned Tribunal has a very limited power and jurisdiction to see the legality, or otherwise, of the orders passed by the first Appellate Authority under section 11 of the J&K GST ACT 1962 and section 72 of the J&K VAT Act, 2005. The Commercial Taxes Department would not have felt aggrieved had the Hon'ble Tribunal considered, and, decided the appeal, without commenting upon the issue settled by the Commissioner Commercial Taxes vide clarification No.40 of 2008 and that it is only the High Court which has the power and jurisdiction to determine whether the clarification, issued by the Commissioner Commercial Taxes, is correct or not. Thus the order of the learned Tribunal is completely without any legal grounds. 1. That in the backdrop of the aforesaid submissions, the following questions of law have arisen for reference to the Hon'ble High Court of J&K in terms of section 12-D of the J&K General Sales Tax Act, 1962:- (i) Whether the J&K State Sales Tax Appellate Tribunal is competent to comment upon, find fault and interfere with an issue determined by the Commissioner Commercial Taxes in exercise of his powers under section 87 of the J&K VAT Act, 2005? (ii) Whether the J&K State Sales Tax Appellate Tribunal has power to stretch and extend its jurisdiction to decide any other issue not raised before the first Appellate Authority? (iii) Whether the J&K State Sales Tax Appellate Tribunal while deciding the second appeals against orders passed under section 11 of the J&K GST Act, 1962 or section 72 of the J&K VAT Act, 2005, can amplify its jurisdiction to annul or set aside orders/clarifications passed by Commissioner Commercial Taxes under other provisions of the aforesaid Acts? 2. I have heard the arguments advanced at the bar and I have also thoughtfully considered the material on record. 3. The reference is a live and typical instance of old perennial dispute and debate, unresolved till date, and even currently a very hot issue in the highest echelons of the Government of India- the issue of precise and exact limit of jurisdiction, power and authority between the administrative/ executive Authority and judiciary. It is this main problem which has given rise to this request for reference to the Hon'ble High Court under section 12-D of the J&K General Sales Tax Act, 1962. 4. It is this main problem which has given rise to this request for reference to the Hon'ble High Court under section 12-D of the J&K General Sales Tax Act, 1962. 4. There is a mis-conception regarding over arching principles and structure of the Sales Tax Department. The basic assumption, and presumption, is that there will always be bonafide intention and effort not to defraud or deprive the department, the Government and the members of the public (in this case the trading class coming under the ambit of Sales Taxes), individual or groups, of any honest, just dues and moneys earned or falling due to them in all legitimate activities and practices in which these sections of people are engaged or employed. The structure of the department is based on the principle that it is a continuous co-operative complementary organisation involved in facilitating activities of the concerned people; that the different sister wings in the department are not antagonistic to, or at logger heads with, each other engaged in polemic battles. 5. In these different wings, of the department it is natural that the human personnel manning these will differ in views, interpretations, even in tastes, will feel jealous of each other, and, above all, critics will always find fault. It is all human. But the acid test of the department doing its duty, and, the sole criterion to guage it, is the personal subjective satisfaction of the individual customer or consumer of the services, provided by the department, that he has received justice and that all manner of right has been done to him. This consumer's or public's; or the trading class client's subjective satisfaction will ultimately judge the efficiency of the department which must achieve it, ensure it and secure it for the concerned members of the public. 6. Ensuring the subjective satisfaction of the client-public does not, however, mean that the different departmental authorities of the parallel sister wings of the department, will engage themselves in legal and polemic controversies. The different wings are not a hierarchy of status. These, iner-se, possess and enjoy an absolute parity of power and authority. Hierarchies are made in order that the activities engaged in are done and completed in a very efficient manner and duties discharged smoothly without avoidable hitches. 7. This does not mean that there are no distinctions. The different wings are not a hierarchy of status. These, iner-se, possess and enjoy an absolute parity of power and authority. Hierarchies are made in order that the activities engaged in are done and completed in a very efficient manner and duties discharged smoothly without avoidable hitches. 7. This does not mean that there are no distinctions. The Commissioner Sales Tax is the top administrative Authority in the department. Not only that. He is the first Appellate Authority and IN NO WAY a subordinate or inferior Authority to any other. There is also a SECOND Appellate Authority.. It must be noted that the notions of temporality or sequentiality are implied. It is a logical concept where second means later in time. Logically the second i.e, the latter, over-rides the previous, in operative terms. This must be understood and noted. 8. And all departments are finally run by the human beings. All human beings are all too human. Psychology of human behaviour gives emotions and feelings a predominant role. At the subjective level there is always the possibility of one feeling hurt, resulting in the involvement of ego-problems, which give rise to fits of pique. Most legal battles are fought because of pique and this reference also after the pros and cons required to answer the same are considered seems to have resulted from a feeling of pique. 9. Section 87 of Value Added Tax Act that gives the Commissioner the power and authority to determine an issue is quoted herein below and it reads as under:- Determination of Issues:- 1. 9. Section 87 of Value Added Tax Act that gives the Commissioner the power and authority to determine an issue is quoted herein below and it reads as under:- Determination of Issues:- 1. If any issue arises, otherwise than in a proceeding pending before a court, Tribunal or Assessing Authority under the Act, as to whether for the purpose of the Act:- (a) any person or association of persons, society, club, firm, company, corporation, undertaking or Government Department, is a dealer; (b) any particular thing done to any goods amounts to, or results in, the manufacture of goods within the meaning of that term; (c) any transaction is a sale or purchase and, if so, the sale or purchase price, as the case may be, thereof; (d) any particular dealer is required to be registered; or (e) any taxes payable in respect of any particular sale or purchase and, if so , the rate of such tax, the persons or the dealer concerned may, after depositing such fee as may be prescribed, submit an application in prescribed form to the Commissioner. 2. The Commissioner shall after giving the applicant an opportunity of being heard and making such enquiry as may be necessary, decide the issue as he deems fit. 3. No decision of Commissioner under this section shall affect the validity or operation of any order passed by any authority prior to such decision. 4. No question, which arises from an order already passed by an authority under the Act, shall be entertained for determination under this section. 5. Copies of decision under this section shall be sent to the applicant and the concerned authority. 10. Every Court or Tribunal has the inherent powers to determine the boundaries of its jurisdiction. This power will include, within its ambit and scope, the power to determine the validity, in the eye of law, of any clarification/ instruction issued by the Commissioner, where it has any bearing on any case pending determination before the Tribunal. The Tribunal is not bound by the instructions/ clarifications made by the Commissioner from time to time, in exercise of his powers under section 87 of Value Added Tax Act or 25-C of General Sales Tax Act. Should it be construed that the Tribunal is so bound the very purpose for which the Tribunal is constituted shall get defeated. The Tribunal is not bound by the instructions/ clarifications made by the Commissioner from time to time, in exercise of his powers under section 87 of Value Added Tax Act or 25-C of General Sales Tax Act. Should it be construed that the Tribunal is so bound the very purpose for which the Tribunal is constituted shall get defeated. The law is what is declared by the Apex Court of the Country or by the High Courts and not that declared by any other Authority. The Commissioner in exercise of his powers under section 87 supra makes an expression of his individual opinion in interpreting a particular provision of the Value Added Tax Act, which binds the Authorities below him while working in the sphere of Administrative jurisdiction.. The Tribunal or the first Appellate Authority has to form a rational and independent opinion about the interpretation of the provision of the statute which shall be uninfluenced by how the Commissioner interprets it. A cue can be had, in his behalf, from the law laid down by the Supreme Court in the case of Bengal Iron Corporation v. Commercial Tax Officer AIR 1993 SC 2420. "So far as clarifications/ circulars issued by the Central Government and / or State Government are concerned, they represent merely their understanding of the statutory provisions. They are not binding upon the Courts. It is true that those clarifications and circulars were 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. There can be no estoppel against the statute. The understanding of the Government whether in favour or against the assessee, is nothing more than its understanding and opinion. It is doubtful whether such clarifications and circulars bind the quasi-judicial functioning of the authorities under the Act. While acting in quasi-judicial capacity, they are bound by law and not by any administrative instructions, opinions, clarifications or circulars. Law is what is declared by this Court and the High Court-to wit, it is for this Court and the High Court to declare what does a particular provision of statute say, and not for the executive. Of course, the Parliament/ Legislature never speaks or explains what does a provision enacted by it mean":- Resort can also be had to the law laid down in "Elgi Equipments v. Astt. Of course, the Parliament/ Legislature never speaks or explains what does a provision enacted by it mean":- Resort can also be had to the law laid down in "Elgi Equipments v. Astt. Commissioner 16 STC 136" where at para 16 it has been held as under:- "While interpreting the import of this section 28-A of the Act, this Special Tribunal in O.P. Nos. 1334 to 1336 of 2000, etc., cases dated January 25, 2001 in the case of Salt Sales Corporation v. Deputy Commercial Tax Officer ( Additional) (2004) 134 STC 529 has given the following findings and directions: 1. Section 28-A of the TNGST Act is perfectly valid and intra vires the Constitution of India. 2. Any clarification given by the Commissioner under sub-section (1) of section 28-A will bind the parties who sought for clarification. If it is a society or association it will bind all its members. However, it will be open to them to canvass such a clarification in assessment proceedings before the assessing officer and appellate proceedings before the Appellate Assistant Commissioner on materials and precedence binding on the assessing officer and Appellate Assistant Commissioner. The ultimate independent decision should be that of the assessing officer or Appellate Assistant Commissioner. 3. Any clarification given under sub-section (2) of Section 28-A of the TNGST Act can be canvassed before the Assessing officer and Appellate Assistant Commissioner in assessment proceedings and appellate proceedings respectively on all aspects of the case, and the assessing officer and Appellate Assistant Commissioner have to give independent decision on the arguments before him. 4. For all other administrative purposes the clarification given under sub-section (1) or (2) shall be binding on the officers subordinate to him by virtue of sub-section (3)." 11. Applying the law, laid down above, to the facts of the instant case, it is to be reiterated that any instructions/ clarification made by the Commissioner, in conformity with the mandate of law as enunciated under section 87 of Value Added Tax Act, is an expression of his personal view/ interpretation which will bind the authorities, under his control, on the administrative side; it has, however, no persuasive force as far as the functioning of the Tribunal, on judicial side, is concerned. It does not bind the Tribunal that may take a view contrary to the one taken by the Commissioner, while adjudicating on an issue, already dealt by the Commissioner in exercise of his power under section 87 supra. 12. Looking at the case of the petitioner from yet another angle, Section 87 of the Jammu and Kashmir Value Added Tax Act, 2005, makes it abundantly clear that the power to determine any issue otherwise than in proceedings pending before a Court, Tribunal or Assessing Authority under the Act, is within the domain and power of the Commissioner meaning thereby that any finding of his, on any such issue, shall not bind the authorities detailed in the section, who shall determine and decide such an issue independent of the opinion expressed by him and that the power of the Tribunal is neither guided nor restricted by the instructions/ clarifications made by him under section 87 of Value Added Tax Act.. 13. It will be appropriate to state here that the Learned counsel, for the Respondent No.2, has tried to lay emphasis on the point that this reference is barred by limitation. This argument is a spurious one when tested on the touch stone of Section 75 of the Jammu and Kashmir Value Added Tax Act, 2005 which reads as under:- 75 Statement of case to the High Court (1) "Within sixty days from the date of communication of the order of the Tribunal, passed in appeal being an order which affects the liability of any person to pay tax or penalty or interest or to forfeiture of any sum or which affects the recovery from any person of any amount under section 73 that person or the Commissioner may, by application in writing ( accompanied where the application is made by any person other than the Commissioner by a fee of five hundred rupees) require the Tribunal to refer to the High Court any question of law arising out of such order and where the Tribunal agrees, it shall as soon as may be but not later than ninety days from the receipt of such application draw up a statement of the case and refer it to the High Court" 14. What has been pleaded in the reference petition is that the period of limitation commences from the date of knowledge and the petitioner attained the knowledge of the passing of the said order by the Tribunal on 13th of September, 2010 as no copy of the same was served upon him or upon the Dy. Commissioner or the Assessing Authority, Circle-D, Jammu, earlier 15. There is no evidence on record to suggest that the copy of the order has been forwarded to the petitioner by the Respondent No. I that is the Tribunal. Therefore on the strength of what is provided in Section 75 of the Jammu and Kashmir Value Added Tax Act, 2005 supra, the application for review has to be filed within a period of 60 days from the date of the communication of the order, which has not been forwarded either to the Assessing Authority or to the first Appellate Authority or to the Commissioner at any time before the date on which the petitioner claims to have attained the knowledge of the same. Therefore the review petition is held to be within time. 16. In view of what has been premised above, no sustentative issues of law, language or logic are involved or need to be got clarified. Therefore the request, made in the application, regarding reference to the Hon'ble High Court of Jammu and Kashmir, being misconceived is regarded as non est. A Copy of this Order be sent to the Learned Commissioner, Sales Tax headquartered at Srinagar, for his perusal and information. Record, summoned, if any, be returned forthwith. File be consigned to records after its due completion. Announced.