JUDGMENT
Ramanujam, J.
1. The assessee in this case claimed exemption from assessment under the Madras General Sales Tax Act on a turnover of Rs. 50,628.06 in the assessment year 1964-65 on the ground that the said sum represented the excise duty paid on the goods sold by him. The said claim for exemption was negatived by the assessing authority on the ground that the excise duty had been paid not by the assessee, but by his principal and, therefore, the benefit of exemption was not available to the assessee who had not paid the excise duty himself. The matter was taken to the Tribunal which, relying on the decision of this court in Ramalakshmana and Co. v. State of Madras [1968] 21 S.T.C. 35, wherein it was held that an agent was entitled to claim the benefit of exemption of the excise duty paid on the goods sold even if such excise duty had been paid by the principal and that whatever exemption was available to the principal was automatically available to the agent, held that the claim for exemption towards excise duty paid on the goods sold by the assessee was tenable. Aggrieved against the decision of the Tribunal, the revenue has come before us.
2. It is pointed out by the learned Government Pleader that under the provisions of Madras Act 3 of 1969 the exemption towards excise duty is altogether withdrawn with retrospective effect from 5th January, 1957, and, therefore, whether the excise duty had been paid by the principal or by the assessee, no claim for deduction in relation to the said sum can be claimed under the present statutory provisions and that, therefore, the order of the Tribunal allowing deduction on a sum of Rs. 50,628 cannot be upheld.
3. We are of the view that the learned Government Pleader is right in his submission that after the enactment of Madras Act 3 of 1969, which withdraws the exemption towards the excise duty paid in respect of the goods sold with retrospective effect from 5th January, 1957, the claim for exemption towards excise duty made by the assessee in this case cannot be upheld.
4. The learned counsel for the respondent however states that Madras Act 3 of 1969 was enacted subsequent to the decision of the Tribunal and that the correctness or otherwise of the order of the Tribunal has to be tested with reference to the then prevailing law. We are not impressed with this contention for the said Act has been given retrospective effect from 5th January, 1957. The position, therefore, is that the provisions for exemption in relation to excise duty should be deemed to be not in the statute from 5th January, 1957. The learned counsel for the respondent then contends that, by withdrawing the exemption with retrospective effect, the assessee will be put to considerable hardship as he fixed the sale price of the goods on the basis that the excise duty paid on the goods will be allowed as deduction in his assessment proceedings. But we cannot take note of the hardship pointed out by the learned counsel while construing the effect of the statutory provisions. If, as stated by the learned counsel for the respondent, there are any executive instructions giving benefit to such dealers who are affected by the retrospective effect being given to the statutory provisions, it is open to him to claim the benefit, if any, under those instructions.
5. The order of the Tribunal is, therefore, set aside and the tax case is allowed. There will be no order as to costs.
