2004 (5) TMI 304 - SC - VAT and Sales Tax

Whether refractory cement is cement so as to attract liability of export tax? Held that - Appeal allowed. The word cement has not been defined in the relevant notification. Therefore it has to be understood in the same way as is understood in common parlance. We are therefore of the opinion that refractory material produced by the appellant does not fall within the entry all types of cement and consequently it is not exigible to levy of export tax.

Summary

Issues Involved:
1. Levy of export tax on refractory cement.
2. Classification of refractory cement under the entry "all types of cement" in the tax schedule.
3. Withdrawal of the amount deposited by the Associated Cement Co. Ltd.

Issue-wise Detailed Analysis:

1. Levy of Export Tax on Refractory Cement:
The primary issue was whether refractory cement manufactured by the appellant, Associated Cement Co. Ltd., falls under the category of "all types of cement" for the purpose of levying export tax. The Municipal Corporation, Katni, had levied this tax through a resolution published in the M.P. Gazette dated October 25, 1991. The appellant challenged this levy, arguing that refractory cement is not covered by the Schedule as it is not cement.

2. Classification of Refractory Cement:
The appellant argued that refractory cement and other refractory materials are fundamentally different from ordinary cement. They highlighted that refractory materials are used in high-temperature environments such as furnaces and kilns, and are not suitable for construction activities for which ordinary cement is used. The raw materials, manufacturing processes, and end-use applications for refractory materials are distinct from those for cement. The appellant supported their argument with technical definitions and commercial distinctions, emphasizing that refractory materials are not understood as cement in common parlance or trade.

Conversely, the Municipal Corporation contended that the term "all types of cement" in the Schedule is comprehensive and includes refractory cement regardless of its specific properties or uses. They argued that the entry should be interpreted strictly as per the wording of the taxing statute, which broadly covers all forms of cement.

The court examined various dictionary definitions and technical literature to understand the nature of refractory materials. It was noted that refractory materials are designed to withstand high temperatures and are used in specialized industrial applications, which are distinct from the uses of ordinary cement.

3. Withdrawal of Amount Deposited:
The Municipal Corporation's appeal also challenged the High Court's order regarding the withdrawal of the amount deposited by the Associated Cement Co. Ltd. However, given the court's finding that refractory material does not fall under the entry "all types of cement," this appeal was rendered moot.

Judgment:
The court concluded that refractory materials, due to their specialized nature and distinct uses, do not fall within the entry "all types of cement" in the tax schedule. Consequently, the levy of export tax on refractory cement was deemed illegal. The court allowed the appeal of the Associated Cement Co. Ltd., setting aside the High Court's judgment that had held refractory cement as exigible to export tax. The appeal by the Municipal Corporation, Katni, concerning the withdrawal of the deposited amount was dismissed.

Final Orders:
- Civil Appeal No. 7188 of 1997 allowed.
- Civil Appeal No. 2992 of 2004 dismissed.