1. The appellant is a registered dealer under the Jammu and Kashmir Value Added Tax Act, 2005. He purchased coal in the year 2005-06, as raw material for manufacturing Bricks and Tiles. At the time of this purchase he paid the due applicable tax. While filing his returns, he claimed input tax credit for the purchase. The Assessing Authority rejected his claim. He assailed the order of the Assessing Authority in an appeal filed before the Dy. Commissioner, Commercial Taxes (Appeals) who upheld the order of the Assessing Authority and also rejected the claim of the appellant vide the clarification No. 9 of 2008 dated 28th February, 2008, issued by the Commissioner, Commercial Taxes. According to this clarification coal is used as fuel in Brick Kilns and not as raw material and, therefore, does not qualify for availing input tax credit. 2. The appellant, being aggrieved by the order of the Ist Appellate Authority, has preferred an appeal before this Tribunal inter alia on the grounds that in disallowing his claim to avail input tax credit, both the Authorities---the Assessing and the Appellate-- have erred grossly. The coal is used as raw material for the manufacture of Bricks and Tiles. The order passed by the Ist Appellate Authority has been made on external dictation. The Assessing and the Appellate Authorities have neither applied their mind nor exercised their judicial discretion in properly appreciating the issues involved in deciding the nature of coal as raw material and coal as fuel in this particular case. The clarification is not adjudication. It is only an opinion given by the Commissioner. The appellant has proceeded to state that he purchased coal, locally, as raw material, from the registered Dealer, under the Jammu & Kashmir Value Added Tax Act, 2005, against proper VAT invoices and after paying the tax due on these purchases, he claimed Input Tax Credit of the tax paid on purchases of raw material which ultimately was used for manufacturing finished products i.e., Bricks and Tiles. The Learned Assessing Authority has ignored the facts of the case and law on the issue as provided under the Jammu & Kashmir Value Added Tax Act, 2005, and rejected the claim of Input Tax Credit of the appellant on the ill- conceived notion that coal is not the raw material for manufacturing Bricks and Tiles. The Learned Assessing Authority has ignored the facts of the case and law on the issue as provided under the Jammu & Kashmir Value Added Tax Act, 2005, and rejected the claim of Input Tax Credit of the appellant on the ill- conceived notion that coal is not the raw material for manufacturing Bricks and Tiles. His contention further is that the terms raw material or fuel have not been defined under the Jammu & Kashmir Value Added Tax Act, 2005, and there is no column regarding the raw material or fuel in the prescribed Application Form for Registration under the Jammu & Kashmir Value Added Tax Act, 2005. The Assessing Authority has no power to reject the claim of Input Tax Credit under the Jammu & Kashmir Value Added Tax Act, 2005, as coal is an ingredient which is used in the process of manufacture of Brick and Tiles. The Learned Assessing Authority has rejected the claim of the Input Tax Credit illegally and the Appellate Authority has wrongly upheld the order of the Assessing Authority. At the end the appellant has stated that the Supreme Court of India and Various other High Courts, of the Country, have clearly, and, in unambiguous terms, held that the fuels used in the manufacturing process constitute raw material. 3. The arguments advanced, at the bar, have been heard and I have also thoughtfully considered the material on record has been considered. To begin with the moot question that needs adjudication, by this Tribunal, is whether, or not, a Clarification made by the Ld. Commissioner, Commercial Taxes, in terms of the powers, vested in him under Section 87 of the Value Added Tax Act, 2005 is binding on the Ist Appellate Authority. According to the Ist Appellate Authority the clarification is binding. She has based her order on the clarification, issued by the Ld. Commissioner, Sales Tax, to the effect that coal is used as a fuel by Brick Kilns and, therefore, does not qualify for availing input tax credit. 4. The First Appellate Authority has not looked into the pros and cons of the controversy. The First Appellate Authority is presumed to apply his/ her mind to the facts and circumstances of each case, uninfluenced by what the Commissioner might hold while issuing any clarification under section 87 supra. 4. The First Appellate Authority has not looked into the pros and cons of the controversy. The First Appellate Authority is presumed to apply his/ her mind to the facts and circumstances of each case, uninfluenced by what the Commissioner might hold while issuing any clarification under section 87 supra. This view is supported by the judgment of this Tribunal dated 30-08-2011 delivered in the reference titled Commissioner of Commercial Taxes v. Amba Food Co, where it has been held as under:- "Section 87 of Value Added Tax Act that gives the Commissioner the power and authority to determine an issue is quoted hereinbelow and it reads as under:- Determination of Issues:- 2. 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. 6. 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. 7. No decision of Commissioner under this section shall affect the validity or operation of any order passed by any authority prior to such decision. 8. No question, which arises from an order already passed by an authority under the Act, shall be entertained for determination under this section. 9. Copies of decision under this section shall be sent to the applicant and the concerned authority. Every Court or Tribunal has the inherent powers to determine the boundaries of its jurisdiction. 8. No question, which arises from an order already passed by an authority under the Act, shall be entertained for determination under this section. 9. Copies of decision under this section shall be sent to the applicant and the concerned authority. 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 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. 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 a particular provisions 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. 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: 5. Section 28-A of the TNGST Act is perfectly valid and intra vires the Constitution of India. 6. 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. 7. 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. 8. 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). 8. 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). 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. 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.." 5. Taking the above into consideration the clarification is not an adjudication. It is only an opinion given by the Commissioner. It cannot denude the adjudicating authorities of their innate and inherent discretion. 6. Taking the above into consideration the clarification is not an adjudication. It is only an opinion given by the Commissioner. It cannot denude the adjudicating authorities of their innate and inherent discretion. 6. In scanning the claim of input tax credit preferred by the appellant what requires to be stated is that the same has to be weighed and examined in terms of Section 21(4) of the Value Added Tax Act, 2005,the relevant excerpts of which are reproduced herein below:- "21(4) Input Tax Credit shall be allowed for purchase of goods Made within the State from a registered dealer holding a valid certificate of registration and which are intended for the purpose of -- (b) use as raw material or as capital goods in the manufacturing and processing of goods other than those exempt from tax under the Act intended for sale in the State.." 7. In the case at issue, there are catenas of judicial pronouncements wherein it has been held that fuel used in the manufacturing process of the end -- product constitutes raw material for the interpretation of this term in the relevant section pertaining to the raw material. A very germane ruling in a similar case is cited below: In Commercial Taxes Officer, Udaipur v. Rajasthan Taxchem Ltd reported in 5 VST 539 (2007) The respondent assessee a manufacturer of synthetic blended yarn purchased diesel as raw material in accordance with the provisions of Section 10 (1) of the Rajasthan Sales Tax Act, 1994 for this purpose by paying concessional rate of tax as notified by the State Government. Respondent claimed benefit of concessional rate of tax under section 10(1) of the Rajasthan Sales Tax Act, 1994, claiming that diesel purchased by it is a raw material for the manufacture of the ultimate final product-Polyester yarn. Assessing Authority denied the benefit holding that since the diesel was not directly used for the manufacture of the final product, the respondent was not entitled to the benefit under the Notification dated 29-09-1995. It accordingly levied a differential tax along with interest which brought the parties before this court. Assessing Authority denied the benefit holding that since the diesel was not directly used for the manufacture of the final product, the respondent was not entitled to the benefit under the Notification dated 29-09-1995. It accordingly levied a differential tax along with interest which brought the parties before this court. It was held by the Apex Court of the Country that in view of the fact that the diesel is being used for the purpose of running the generator set for the production of the ultimate product which is also required for the purpose of manufacturing the end product the diesel can only be termed a raw material and not otherwise. The Rajasthan Tax Board was, therefore, justified in setting aside the orders passed by the Assessing Authority as confirmed by the Deputy Commissioner (Appeals). A cue can also be had from the law laid down in Commissioner of Trade Tax v. Goel India, Moradabad reported in (2008) 31 PHT 31 where the assessee was in the, business of manufacturing and sale of Brass Artwares. He applied for insertion of Generator and Diesel in Central Registration Certificate for the purpose of getting these items at concessional rate of tax. Since the request was declined, assessee approached the Hon'ble High Court and the Hon'ble High Court held that fuel or lubricants used for in the manufacture or processing of goods for sale, in mining, or in the generation or distribution of electricity or any other form of power would be entitled to pay tax under the provision of Section 8 (3) (b) of the Central Sales Tax Act- Diesel oil and other fuels in such circumstances held to be part of the manufacturing process as has been held in M/s Vam Organic Chemicals Ltd. v. State of U.P. (2003) UPTC 467. The same view has been reiterated in the law laid down in Collector of Central Excise, New Delhi.V/s Ballarpur Industries Ltd. reported in (1990) 77 STC 282 (SC) where the respondent was a manufacture of paper boards in the process relating to which "sodium sulphate" is used " in the chemical recovery cycle of sodium sulphide which forms an essential constituent of sulphate cooking liquor used in the digestion operation". On the question whether sodium sulphate used in the manufacture of paper was raw material for which proforma credit could be allowed in terms of Notification No. 105/82-CE dated February, 1982. It was held that for an item to qualify as raw material, it need not necessarily and in all cases go into, and be found, in the end-product. Merely because this ingredient was consumed and burnt up in the course of Chemical reactions it did not ipso facto cease to be raw material. Although sodium sulphate was utilised in the preparation of an anterior, intermediate product at the stage of digestion of the pulp, this process was so integrally connected with the ultimate production of goods that, but for that process, manufacture or processing of paper would be commercially inexpedient. The sodium sulphate used in this process, therefore, was raw material for the manufacture of paper within the meaning of Notification No. 105/82 CE dated February 28, 1982. The law laid down in Consolidated fibres Chemicals Ltd. and Another v. A.C.S.T., Corporate Division and others. (2008) 15 VSTC 222 also assumes significance. In this caset the applicant , a manufacture of "acrylic fibre" and registered under the West Bengal Value Added Tax Act, 2003, applied before the Assistant Commissioner for input tax credit in terms of rules 21 and 22 of the West Bengal Value Added Tax Rules, 2005, enclosing the statement of stock of goods as on April 1, 2005, but the latter disallowed the claim for input tax credit in respect of the opening stock of "furnace oil" on the ground that furnace oil was fuel for running the machinery and had no relation to direct use in manufacturing. On revision, the Deputy Commissioner confirmed that order. On an application to the West Bengal Taxation Tribunal. It was held that under the Act, a registered dealer is entitled to input tax credit on goods lying in stock with such dealer and purchased for direct use in manufacturing the end-product. "Direct relation" means without which the manufacture of end-product is not feasible at all. On an application to the West Bengal Taxation Tribunal. It was held that under the Act, a registered dealer is entitled to input tax credit on goods lying in stock with such dealer and purchased for direct use in manufacturing the end-product. "Direct relation" means without which the manufacture of end-product is not feasible at all. Furnace oil purchased by the dealer for use in the boiler for incessant running of other plants in the manufacture of goods and thereby to convert the raw materials into finished goods, was necessarily consumable goods, especially since in the absence of furnace oil manufacture of the end-product, i.e. acrylic fibre would become commercially inexpedient...." 8. In view of the rationale applied, in the law laid down above, we can safely use it, mutatis mutandis. Both the Authorities- the Assessing and the Appellate---have erred to the extent that they have treated coal as fuel and not as raw material which is an important ingredient for manufacturing the end product---the Bricks and Tiles, in this case. Since the law established, in the cases and the rulings, which have been cited above, in the context of this case, have treated the particular fuel as raw material, there is no reason why the same yard stick should not apply in the case under appeal. 9. The appeal is, therefore allowed. The orders of both the authorities- the Assessing and the Appellate, are accordingly set aside. The appellant is entitled to avail the benefit of input tax credit as he qualifies for it. Record, summoned, if any, be returned forthwith. File be consigned to records after its due completion. A Copy of this Order be sent to the Learned Commissioner, Sales Tax headquartered at Srinagar, for his perusal and information. Announced.