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Judgment
A. Kulasekaran, J.—The clarification of the 2nd Respondent dated 12.8.2004 is challenged in this Writ Petition.
Originally, the packing materials were included in the entry in Part B in item 44 of the First Schedule, which is relating to the period from
27.3.2002. The Petitioner has sought for clarification before the Commissioner, who passed an order, stating that the packing material namely low
density polythene or sheet and high density polythene or sheet used for packing are included under GO. Ms. No. 71 dated 20.6.2005, hence the
Petitioner is entitled to the said benefits from the date of the said GO and not from the original date of entry i.e. 27.3.2002.
The Apex Court laid down a ratio in Government of India and Others Vs. Indian Tobacco Association, wherein paragraph 23, it is stated as
under:
If the Central Government intended to extend the benefit to the members of the Respondent Association only with prospective effect, it could
have said so explicitly. Such a benefit could also have been extended by taking recourse to the proviso appended to Sub clause (iv) of Clause (2)
of the notification dated 7.4.1997. It, may, therefore, be safely concluded that by reason of the amended notification, the Central Government only
intended to rectify a mistake, and thus, the same will have retrospective effect and retroactive operation.
Applying the said ratio laid down by the Apex Court, this Court is of the considered view that the products included in GO. Ms. No. 71 dated
26.2.2005 have been taken as amended to earlier inclusion dated 27.3.2002. Accordingly, it is ordered that the Respondents are directed to
include the said product from the date of original entry 27.3.2002. In view of the said finding, the impugned communication is set aside. This Writ
Petition is ordered as prayed for accordingly. No costs.