2016 (10) TMI 815 - HC - VAT and Sales Tax

Whether tax credit paid on purchases of Oxygen Gas and LPG used in cutting hull of the ship during ship breaking/scrapping process is admissible - The main thrust of the contention of the opponent was that the activity of ship breaking is a manufacturing activity and in that process since the Oxygen gas and LPG gas are being consumed, is entitled to have a tax credit - Held that - the sales tax department since about 20 years by now has continued to assess the opponent as a manufacturer, there was no justifiable reason for determining authority to treat the activity not as a manufacturing activity - In case of Ship Scrap Traders 2001 (5) TMI 43 - BOMBAY High Court held that ship breaking activity gives rise to manufacture and production of altogether new commercial article or thing which is commercially indentifiable in the commercial world as other than ship and therefore, in that case, the assessee was entitled to claim deduction under Sections 80 HHA and 80-I of the Income Tax Act - opponent is engaged in ship breaking activity, which is nothing but a manufacturing process under the provisions of the VAT Act and the petroleum gases (LPG) and Oxygen gases are forming part of the said process, being raw material covered within the swip of Section 2(19) of the VAT Act, and since the same are the processing material and consumable stores in the activity, the tax credit of tax paid on purchases of these commodities is admissible under the Act - Decided in favor of the assessee.

Summary

Issues Involved:
1. Whether ship breaking is considered a manufacturing process under the Gujarat Value Added Tax Act, 2003.
2. Whether LPG and Oxygen used in the ship breaking process qualify as raw materials under Section 2(19) of the Gujarat Value Added Tax Act, 2003.
3. Whether Input Tax Credit (ITC) on purchases of LPG and Oxygen is admissible under Section 11 of the Gujarat Value Added Tax Act, 2003.

Detailed Analysis:

Issue 1: Ship Breaking as a Manufacturing Process
The Tribunal determined that the activity of ship breaking qualifies as a manufacturing process under Section 2(14) of the Gujarat Value Added Tax Act, 2003. The Tribunal's conclusion was based on the transformation of ships into different articles through the scrapping and dismantling process, which involves technical knowledge and physical labor. The Tribunal referenced various decisions, including those by the Hon'ble Supreme Court and other High Courts, to support its view that ship breaking results in the production of new commercial articles distinct from the original ship. The Tribunal's decision aligns with the definitions and interpretations of "manufacturing" under other statutes like the Income Tax Act and Central Excise Act, where ship breaking is also treated as a manufacturing activity.

Issue 2: LPG and Oxygen as Raw Materials
The Tribunal held that LPG and Oxygen used in the ship breaking process are raw materials within the meaning of Section 2(19) of the Gujarat Value Added Tax Act, 2003. The definition of "raw materials" includes goods used as ingredients in the manufacture of other goods, as well as processing materials and consumable stores. The Tribunal found that LPG and Oxygen gases are integral to the ship breaking process and thus qualify as raw materials. This interpretation was supported by the consistent treatment of these gases as raw materials in other relevant statutes and judicial decisions.

Issue 3: Admissibility of Input Tax Credit (ITC)
The Tribunal concluded that the opponent is entitled to Input Tax Credit (ITC) on purchases of LPG and Oxygen under Section 11 of the Gujarat Value Added Tax Act, 2003. The Tribunal reasoned that since LPG and Oxygen are used as processing materials or consumable stores in the ship breaking process, they fall within the scope of Section 2(19) of the Act. The Tribunal's decision was based on a thorough examination of the ship breaking process and the role of these gases in it. The Tribunal also considered the legislative intent and the consistent treatment of similar activities under other statutes.

Conclusion:
The High Court upheld the Tribunal's decision, affirming that ship breaking is a manufacturing process under the Gujarat Value Added Tax Act, 2003. LPG and Oxygen used in this process are considered raw materials, and thus, the opponent is entitled to Input Tax Credit on their purchases. The appeal by the revenue was dismissed, and the question of law was answered in favor of the assessee.