1. Original Petition No. 406 of 2001 is filed by M/s. Automotive Coaches and Components Ltd., Gummidipoondi, Tiruvallur District to set aside the letter issued by the second respondent in Lr. No.14397/B2/2000 dated November 30, 2000 and pass orders granting exemption to the petitioner as was granted in G.O. Ms. No. 115, Revenue Department, dated January 17, 1972 either under Section 17(1) of the Tamil Nadu General Sales Tax Act, 1959 or in exercise of its executive power under Article 162 of the Constitution of India.
2. Original Petition No. 407 of 2001 is filed by the same petitioner for remission of taxes and penalties imposed upon the petitioner of Rs. 2,66,03,725 on the sales of bus bodies made to exporters during the period 1988-89 to 1996-97 vide proceedings in TNGST/150056/88-89 to 93-94 on various dates and TNGST/0860415/96-97 dated April 2, 1998 passed by the first respondent.
3. Original Petition No. 453 of 2001 is filed by the petitioner--M/s.
Anamallais Engineering, Pollachi to call for the proceedings of the second respondent in letter No. 14397/B2/2000 dated November 30, 2000 and set aside the same and direct the second respondent to pass orders granting exemption to the petitioner, as was granted in G.O. Ms. No.115, Revenue Department dated January 17, 1972 either under Section 17(1) of the Tamil Nadu General Sales Tax Act, 1959 or in exercise of the executive powers under Article 162 of the Constitution of India.
4. Original Petition No. 454 of 2001 is filed by the same petitioner to direct the second respondent to remit the taxes imposed upon and payable by the petitioners of Rs. 17,34,820 on the sales of bus bodies made to exporters during the assessment year 1988-89 vide proceedings in TNGST/243051/88-89 dated December 30, 1989 of the first respondent.
5. Original Petition No. 71 of 2002 is filed by M/s. Brij and Associates, Chennai for the very same prayer made by the petitioners in O.P. No. 406 of 2001.
6. Original Petition No. 73 of 2002 is filed by the same petitioner to direct the third respondent to remit the taxes and penalties imposed upon the petitioners of Rs. 53,33,642 and Rs. 80,00,463 on the sales of bus bodies and other types of vehicle bodies to exporters in TNGST/0982134/99-2000 dated September 20, 2001.
7. Original Petition No. 72 of 2002 is filed by the same petitioner for the very same prayer made in O.P. No. 73 of 2002 for the assessment years 1993-94 to 1998-99.
8. Learned counsel for the petitioners--Thiru N. Sriprakash has made common arguments in respect of the question raised in the original petitions.
9. Learned Additional Advocate-General for the Revenue placed reliance on the counters filed by the Revenue and argued that the petitioners cannot challenge the validity of G.O. Ms. No. 115, Revenue Department, dated January 17, 1972 and for direction to the concerned authorities to extend such benefits to the petitioners herein and similarly placed body building works and to remit the taxes and penalty imposed on them by the Government of Tamil Nadu either under Section 17(1) of the Tamil Nadu General Sales Tax Act, 1959 or under Article 162 of the Constitution of India.
10. Before entering into the arguments advanced on both sides, it is better to set out certain facts for better appreciation. G.O. Ms. No.115, Revenue Department, dated January 17, 1972 was passed by the Government of Tamil Nadu as per the request of M/s. Sundaram Industries Pvt. Ltd., Madras for grant of exemption from levy of 15 per cent sales tax on the bodies built and supplied to the chassis manufacturers in India for onward export to foreign countries. The Government of Tamil Nadu have directed to grant exemption by way of refund of taxes on production of proof of export by furnishing anyone of the three documents stated therein. Some similarly placed body building works (1) M/s. L.G. Balakrishnan Brothers, Coimbatore, (2). Tvl. Anamallais Engineering, Pollachi and (3) Sundaram Industries Ltd., Madurai have filed revisions and appeals before the High Court of Judicature at Madras and in turn, they were transferred to this Special Tribunal in T.C.A. No. 1841 of 1997 and T.C.R. Nos. 1997 of 1997 and 2169 of 1997 respectively for disposal in accordance with law. On hearing both sides, this Special Tribunal, by its order dated June 6, 2000, reportd as L.G. Balakrishnan Brothers Ltd. v. State of Tamil Nadu  123 STC 508 dismissed the appeal in T.C.A. No. 1841 of 1997 filed by Tvl.
L.G. Balakrishnan Brothers, Coimbatore and T.C.R. No. 2169 of 1997 filed by the State and partly allowed T.C.R. No. 1997 of 1997. On August 9, 2000, one of the petitioners herein--M/s. Automotive Coaches and Components Ltd., Gummidipoondi, sent a petition to the Secretary to the Government, Department of Commercial Taxes and Religious Endowments, Chennai-9 and similar petitions dated June 23, 2000 and October 10, 2000 were sent by Tvl. Anamallais Engineering, Coach Builders, Pollachi and Brij and Associates, Chennai respectively. The Secretary to Government rejected the request made by the petitioners by the impugned letter No. 14397/B2/2000 dated November 30, 2000.
Challenging the said order and reviving their request for remission of taxes and penalties, the petitioners have filed these seven original petitions.
11. Learned counsel for the petitioners--Thiru N. Sriprakash has mainly relied on Article 14 of the Constitution of India and contended that the benefit granted by the Government in G.O. Ms. No. 115, Revenue Department, dated January 17, 1972 should also be extended to the petitioners and similarly placed body building works.
12. Learned Additional Advocate-General for the Revenue has contended that the said Government order dated January 17, 1972 was passed prior to the insertion of Sub-section (3) of Section 5 of the Central Sales Tax Act, 1956. The legislative change of which Sub-section (3) was inserted by Act 103 of 1976 with effect from 1976 has made the G.O. Ms.
No. 115, Revenue Department, dated January 17, 1972 redundant, is the argument advanced on the side of the Revenue. Further, when once the effect of the said Government order has been inserted in the Act itself, there is no question of raising the same at a later point of time by the petitioners in order to achieve their object. Section 5(3) of the Central Sales Tax Act, 1956 has been elaborately considered by this Special Tribunal in its order dated June 6, 2000. Reportd as L.G.Balakrishnan Brothers Ltd. v, State of Tamil Nadu  123 STC 508.
This Special Tribunal, in the said order, has held : "Thus, it cannot be said that chassis or bus body was exported, when actually a complete bus was exported to foreign countries. When the identity of the goods is changed and commercially, a bus is regarded as a different commercial commodity from chassis or bus body, then naturally, no claim of exemption can be granted under Section 5(3) of the Central Act, as the exported goods are not 'those goods' purchased.................
Section 5(3) was introduced in the Central Act with a view to encourage those who produce export commodities and effect export sales through export houses, who secure foreign contracts. Section 5(3) of the Central Act was not intended to exempt all components which go into manufacture of a new commercial commodity, which was exported in pursuance of the foreign export order." On further discussion, it was held that the decision of the Bombay High Court reported in Tata Engineering and Locomotive Company Ltd. v. State of Maharashtra  98 STC 330 is relevant to the case on hand and further this Special Tribunal disagreed with the view taken by the Karnataka High Court in the case of Azad Coach Builders Pvt. Ltd. in STRP Nos. 4 of 1997 and 5 of 1998 dated February 8, 2000. In respect of the alternative plea of exemption, as it has been granted in the case of Sundaram Industries Pvt. Ltd., Chennai in G.O. Ms. No. 115, Revenue, dated January 17, 1972, T.C.R. No. 1997 of 1997 was partly allowed and the appeal in T.C.A. No. 1841 of 1997 filed by the assessee was dismissed and also T.C.R.No. 2169 of 1997 filed by the Revenue. In T.C.R. No. 1997 of 1997 filed by M/s. L.G. Balakrishnan Brothers questioning the tax, this Special Tribunal restored the order of the Appellate Assistant Commissioner levying tax on a turnover of Rs. 79,79,925 at 15 per cent and Rs. 33,33,498 at 8 per cent and levy of penalty under Section 12(5)(iii) alone was deleted. Now, the petitioners, after filing the petitions before the Secretary to Government, have filed these seven original petitions challenging the order passed by the learned Secretary to Government and for the very same prayers.
13. Learned counsel for the petitioners has relied on a decision of the Supreme Court in the case of Hochtief Gammon, Appellant v. State of Orissa AIR "The executive have to reach their decisions by taking into account relevant considerations.............. They cannot avoid scrutiny by courts by failing to give reasons. If they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters, though the propriety, adequacy or satisfactory character of these reasons may not be open to judicial scrutiny. Even if the executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts." 14. To insist the said view, learned counsel for the petitioners has relied on a decision of their Lordships of the Supreme Court in Union of India v. Dinesh Engineering Corporation (2001) 8 JT 84 (SC) and at page 91, the Supreme Court held : "Any decision be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution." The next decision relied on by the learned counsel for the petitioners is the case of Common Cause : A Registered Society v. Union of India (1996) 8 JT 613 (SC). At page 634, the Supreme Court held : "While Article 14 permits a reasonable classification having a rational nexus to the objective sought to be achieved, it does not permit the power to pick and choose arbitrarily out of several persons falling in the same category."In Dai-Ichi Karkaria Ltd. v. Union of India AIR 2000 SC 1741 at page 1743, it was held by their Lordships of the Supreme Court: "It is clear, therefore, that the factors taken into consideration by the Government appear to us to be wholly irrelevant and do not subserve public interest. In somewhat identical situation, this Court had occasion to examine the scope of interference in respect of notification issued under Section 25 of the Customs Act." In the case of Bhoruka Steel Limited v. Union of India (1989) 10 SISTC 19 (Mad.) their Lordships of the Madras High Court have held : "The petitioner has prayed for the issue of a writ of declaration declaring that the impugned order of the Government insofar as it required the re-rolling to be carried out inside Tamil Nadu for the benefit of getting exemption is illegal, discriminatory and unconstitutional and to that extent it is invalid. However, we think that it is not necessary to hold that the condition is invalid, but wherever that condition could be satisfied also, the benefit will be given. But even if that condition is not satisfied, the benefit of the G.O. will have to be given to all those persons who have manufactured the end-products out of the raw materials which had already suffered tax under the Tamil Nadu General Sales Tax Act, 1959." 15. All these decisions are to the effect that any order passed by an executive should be a considered order deciding the questions raised therein and further benefits, if extended in public interests, such benefits should be extended to all those who are similarly placed. On the strength of these decisions, it was contended by the learned counsel for the petitioners that the impugned letter dated November 30, 2000 issued by the Secretary to Government, Commercial Taxes Department, has to be set aside.
16. Learned Additional Advocate-General for the Government has stated that if any considered order is passed after due consideration of the question raised, merely because such consideration has not been stated in the order itself, it cannot be said that the order is totally invalid. Learned Additional Advocate-General further contended that the learned secretary, on considering the issues raised by the petitioners, had passed that order and for better appreciation, the petitioners ought to have gone into the file on the basis of which the order was passed. To strengthen his contention, learned Additional Advocate-General has relied on the decision in the case of Shri Sitaram Sugar Co. Ltd. v. Union of India AIR 1990 SC 1277. At page 1297, the Supreme Court held : "The true position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi-judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it."Chandigarh Administration v. Jagjit Singh AIR 1995 SC 705, while considering the various instances on the ground of inequality, it was held : "Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order."Gursharan Singh v. New Delhi Municipal Committee AIR 1996 SC 1175, the Supreme Court held : "The guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or court in a negative manner. To put it in other words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, the others cannot invoke the jurisdiction of the High Court or of the Supreme Court, that the same irregularity or illegality be committed by the State or an authority which can be held to be a State within the meaning of Article 12 of the Constitution, so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner."Choksi Tube Company Ltd. v. Union of India (1998) 77 ECR 38 (SC), at page 40, their Lordships of the Supreme Court have held : "Having regard to the determined stand of the respondents not to state their case on paper, we must assume that there was neither any public interest nor any exceptional nature involved and that others placed in circumstances similar to that in which the said mills were placed must have the same benefit as was advanced to the said mills."In Faridabad Ct. Scan Centre v. D.G. Health Services (1997) 7 SCC 752, their Lordships of the Supreme Court have held : "Article 14 cannot be invoked in cases where wrong orders are issued in favour of others. Wrong orders cannot be perpetuated with the help of Article 14 on the basis that such wrong orders were earlier passed in favour of some other persons and that, therefore, there will be discrimination against others if correct orders are passed against them. The benefit of the exemption notification, in the present case, cannot, therefore, be extended to the petitioner on the ground that such benefit has been wrongly extended to others." In All India Skins & Hides Tanners and Merchants Association v.Commercial Tax Officer  127 STC 491, at page 503, the Madras High Court held : "Having regard to the enunciation of the law by the Supreme Court, it is clear that Article 14 cannot be enforced by the petitioner to perpetuate an illegality on the ground that a benefit not permitted by law had been extended to another. What can be done by the petitioner who complains of discrimination is to require the State to take action against those who have been extended the benefit improperly so that the law is enforced against those others as well." All these decisions show that Article 14 cannot be pressed into service to achieve the objects of anyone, provided such prayer is in accordance within the valid provisions. The decisions relied on by the Revenue would prove that the petitioners cannot take any advantage on the ground of hostile discrimination to enforce Article 14 of the Constitution of India.
17. The petitioners have relied on Section 17 of the Tamil Nadu General Sales Tax Act, 1959 wherein the Government has power to notify exemptions or reductions of tax. Section 17(1) of the Act deals with the power of Government by notification to make exemption or reduction in the rate in respect of any tax payable under the Act either prospectively or retrospectively. Section 17(2) of the Act deals with the exemption from tax or reduction in the rate of tax. However, Section 17(4) of the Act deals with the power of the Government, subject to such conditions prescribed by notification, to remit whole or any part of tax or penalty or fee payable in respect of any period by any dealer under the Act, Therefore, Section 17(4) gives sufficient power to the Government by way of notification to remit the whole or any part of tax to any dealer. The words "any dealer" would go to show that it is applicable to individual dealers and not to the dealers in the State as a whole. G.O. Ms. No. 115, Revenue, dated January 17, 1972 was issued in favour of a particular dealer, viz., M/s. Sundaram Industries Pvt. Ltd., Chennai. The petitioners cannot contend that similar exemption should be granted to them also. It is an exemption granted in favour of only one dealer and it cannot be applied to any other dealer like the petitioners herein. Therefore, the petitioners cannot contend that as per the provisions of Section 17(2) of the Act, the Government should remit the taxes paid by them earlier. As rightly contended, the prayer in these original petitions are for refund of the taxes and penalties already paid. When the law requires similar order has to be passed in respect of other dealers including the petitioners herein, then only they are entitled to have similar benefits. The Government of Tamil Nadu have not granted any such exemption in the case of similarly placed body building works. What was granted under G.O. Ms. No. 115, Revenue, dated January 17, 1972 is an exemption, only in favour of Sundaram Industries. Such exemptions cannot be applied to others like the petitioners herein.
18. The next prayer of the petitioner is to apply such exemption for remission of tax, as in the case of Sundaram Industries Pvt. Ltd., Chennai by invoking Article 162 of the Constitution of India. Article 162 deals with "extend of executive power of State" and such power depends upon the Legislature of the State to make law to satisfy the assessees like the petitioners herein. In the instant case, the executive passed G.O. Ms. No. 115, Revenue Department, dated January 17, 1972 and "similar Government orders have not been passed in the case of anyone else. While considering the said question, their Lordships of the Supreme Court in Direct Recruit Class-II Engineering Officers' Association v. State of Maharashtra AIR 1990 SC 1607, in para 44, have held that in case of any deviation, particularly when it has been done repeatedly, the presumption would be that the authority has exercised his power of relaxation or policy has been changed (without formal amendment) and the later entrants cannot claim the benefit of the original instruction. Similar Government order like G.O. Ms. No.115, Revenue, dated January 17, 1972 has not been passed by the executive. Therefore, the petitioners cannot seek the executive power of the State to pass similar Government orders in accordance with Article 162 of the Constitution of India.
19. The petitioners have contended that when once such a Government order has been passed in favour of Sundaram Industries Pvt. Ltd., Chennai, the Government cannot refuse to extend such remission of tax to similarly placed body building works. The executive of the Government can pass such remission in the case of an individual assessee by invoking their power to grant such remission or reduction in the tax and in such a case, it cannot be said that others who are similarly placed are the persons aggrieved and thereby they can invoke Article 14 of the Constitution to have similar benefits to them also.Anant Mills Co.
Ltd. v. State of Gujarat AIR 1975 SC 1234 considered the said question and held : "It is well-established that Article 14 forbids class legislation but does not forbid classification." Following that decision, their Lordships of the Supreme Court of India, in the case of Tulsipur Sugar Co. Ltd. v. Secretary to the Government of U.P.  63 STC 192, at page 197, have held : "The remission was granted only to the factories where the recovery from the sugarcane was low to enable the factories to make timely payments towards the cost of sugarcane and non-payment of the cane prices affecting the supply of cane to factories. It was in these circumstances that the Government granted remission to the factories which needed the help." Therefore, the prayer of the petitioners that in view of G.O. Ms. No.115, Revenue Department, dated January 17, 1972, similar exemption by way of refund of tax should be granted to them also, cannot be allowed.
For all these reasons, original petitions Nos. 406, 407, 453 and 454 of 2001 and 71 to 73 of 2002 are dismissed.
And this Tribunal doth further order that this order on being produced be punctually observed and carried into execution by all concerned.
Issued under my hand and the seal of this Tribunal on the 28th day of April, 2003.