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VAT / Sales Tax - Case Laws
Showing 481 to 500 of 629 Records
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2020 (3) TMI 7
Taxability under CST Act - goods transfer in question supported by “F” Form - HELD THAT:- Reliance placed in the decision in the case of M/S. ADVANCE PAINTS (P) LTD. VERSUS THE COMMERCIAL TAX OFFICER, THE SALES TAX APPELLATE TRIBUNAL (ADDL. BENCH) [2019 (12) TMI 540 - MADRAS HIGH COURT] where it was held that merely on the assumption or presumption of any such kind of pre-existing contract, the Assessing Authority could not have imposed the tax under the provision of Central Sales Tax Act. Since necessary documents and evidence were already furnished before the Assessing Authority himself, furnishing of the same again before the Appellate Authorities was not at all called for. And therefore, on this premise, the Appellate Authority should not have confirmed the finding of the Assessing Authority that the Assessee is liable to pay tax under the Central Sales Tax Act.
There is no error in the order of the learned Tribunal and the finding of fact recorded by the learned Tribunal does to require any interference in this writ petition filed by the Revenue - Petition dismissed.
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2020 (3) TMI 6
Classification of goods - 'hot mix material' transferred in a works contract - Whether the 'hot mix material' transferred in a works contract is to be taxed under the Act at the prescribed rates of its constituents or at general rate under the residuary clause?
HELD THAT:- From the decisions relied, M/S. LARSEN & TOUBRO LIMITED & ANOTHER VERSUS STATE OF KARNATAKA & ANOTHER [2013 (9) TMI 853 - SUPREME COURT], the position emerges that the goods involved in the works contract are taxed as deemed sales. The restrictions under Article 286 of the Constitution of India would apply on the State Legislature while taxing the works contract. The State Legislature has power to prescribe uniform rate of tax on the goods involved in the works contract inspite of the fact that different rates are prescribed under the Act for the constituents involved therein. Further that identity of the goods transferred is lost in the process does not prevent them from being goods. The contention of learned counsel for the State that the goods when being incorporated were transferred in some other form and hence ingredients lose their identity, cannot be accepted, as there is a deemed sale of the ingredients of 'hot mix material' and the loss of identity of goods does not prevent them from being goods for the purpose of deemed sale.
The State of Haryana has not prescribed any uniform rate for material used in the works contract. Cement, bitumen, rori etc. which are to be deemed to be sold cannot be taxed at general rate by resorting to residuary clause, these are to be taxed as per the rates prescribed. The residuary clause will come into play only in case the goods are not covered under any of the Schedule to the Act. Even otherwise it would restrict the full play to be given to the deeming fiction of sale of goods involved in works contract.
There is another angle to view the contention of the State, if the argument is taken to the logical conclusion and it is held that transfer in works contract is not of the ingredients of hot mix material but of the new product, in that eventuality the restrictions of Article 286 of the Constitution of India and Sections 14 and 15 of the Central Sales Tax Act, 1956 would not apply for taxing the deemed sale - Such an eventuality would be against the law laid down by the Apex Court that restrictions of Article 286 of the Constitution of India will apply and that 46th amendment of the Constitution of India has only given a deeming fiction of sale of goods involved in the works contract and has not given separate or equivalent Entry in List II for levy of tax on sale or purchase of goods.
Thus, it is held that the goods transferred in execution of works contract will not be taxed at general rate but as per the rates prescribed of constituents of the 'hot mix material'.
Appeal allowed - decided in favor of appellant.
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2020 (3) TMI 5
Levy of penalty - suppression of turnover - whether in the facts and circumstances of the case the penalty for suppression of turnover can be sustained when the turnover was reflected in the books of account?
HELD THAT:- In the present case, inspite of the fact that the assessment was finalised under Section 15(3) of the Act, the turnover as shown in the returns was assessed. The appellant filed an appeal and the matter was remanded back even thereafter the suppressed turnover was never brought to the notice of the Assessing Officer, rather the returns filed were pressed upon.
Section 38 of the Act envisages imposition of penalty where a return furnished is false or incorrect in any material particular. In the case in hand, the appellant had successfully suppressed the turnover not only in the returns but also in proceedings under Section 15(3) of the Act and the tax charged was illegally retained by the appellant. In such event, even if the transaction was disclosed in the books of account it will be of no benefit. Moreover, Section 38 of the Act is worded in a manner that it applies not only to maintaining false or incorrect account but also to filing incorrect or false returns, which the appellant did in the present case.
The contention of the appellant that mischief was committed by authorised representative-Mr. Ram Tirath has rightly been rejected by the Tribunal by stating that no benefit could have been derived by Mr. Ram Tirath by suppressing the sales in question and filing false returns. The saving of tax, if any, was to the appellant.
The sustaining of penalty by the Tribunal warrants no interference - Appeal dismissed.
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2020 (2) TMI 1663
Recovery of dues - priority of charges - overriding effect of Section 31B of the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016 over the recovery of all other debts and Government dues including revenues, taxes, cesses and rates due to the Central Government, State Government or Local Authority - HELD THAT:- The prevailing position is that debts due to any secured creditor shall be paid in priority over all other other debts and revenues, taxes, cesses and rates payable to the Central or State Government or local authority.
The sale of the properties in question shall be registered, if the documents are otherwise in order. The petitioner bank is directed to keep the sale considerations apart in a separate interest bearing, marked account, till, and subject to disposal of this writ petition.
Since the main issue is stated to be pending before the Supreme Court, list this matter on 16.03.2020.
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2020 (2) TMI 1624
Maintainability of petition - availability of alternative remedy of appeal - Section 51 of the Tamil Nadu Value Added Tax Act 2006 - HELD THAT:- There is no error in the order passed by the learned Single Judge and even the ground of breach of principles of natural justice, if at all can be established by the Assessee, the Assessee can very well file an appeal under Section 51 of the Act besides raising the grounds on the merits of the case. Therefore, it does not entitle the Assessee / Appellant to resort to writ jurisdiction invariably in all circumstances for the alleged breach of principles of natural justice.
The Writ Appeal is disposed of by relegating the matter back to the appellate authority - in the present case the appellant could avail the effective alternative remedy - Appeal allowed by way of remand.
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2020 (2) TMI 1601
Rejection of petitioner's stay application - seeking stay of collection of the disputed tax pending the Appeal filed by the petitioner before the Telangana Value Added Tax Appellate Tribunal, Hyderabad - HELD THAT:- Since the petitioner has already paid 25% of the disputed tax at the time of filing of the Appeal before the Tribunal and since the entire Appeal would be rendered infructuous if the respondents are allowed to collect the entire disputed tax pending the Appeal, the Writ Petition is disposed of directing stay of collection of the disputed tax pending disposal of the Appeal filed by the petitioner before the Telangana Value Added Tax Appellate Tribunal, Hyderabad.
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2020 (2) TMI 1579
Cenvat Credit - demand of service tax - demand beyond the scope of show cause notice (SCN) - the show-cause notice is issued for disallowance of credit for contravening of the provisions of Rule 9 of CENVAT Credit Rules, 2004, the learned commissioner proceeds to deny the credit on co-relation between input service and output service. - HELD THAT:- the input services claimed by the appellants are admissible for credit for rendering output services - Decision in the case of Millipore India Pvt. Ltd., [2011 (4) TMI 1122 - KARNATAKA HIGH COURT] and Toyota Kirloskar Motor Pvt. Ltd., [2011 (3) TMI 1373 - KARNATAKA HIGH COURT] followed.
The services which are utilized by the appellants have nexus with the output services provided by them. Therefore, credit is also admissible.
Regarding the other issues such as inclusion of the value of the services rendered by the branches situated in Jammu & Kashmir in the total taxable value of the appellants; demand of service tax on the commission received in advance, we find that the submissions of the appellants are acceptable in view of the case laws cited by the learned counsel.
Decided in favor of assessee.
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2020 (2) TMI 1544
Rectification of the Assessment Order - failure to produce Form-F declaration - stock transfer treated as local sales - HELD THAT:- The case is remitted back to the Respondent to pass appropriate orders under Section 73 of the Puducherry Value Added Tax Act, 2007. The Respondent shall consider the representation of the Petitioner for rectification of the Order in the light of Form-F produced by the Petitioner.
The Respondent is directed to pass appropriate orders within a period of three months from the date of communication of this Order provided with the Petitioner’s Original documents of Form-F after filing of the relevant details - petition disposed off.
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2020 (2) TMI 1512
Rejection of refund claim - rejection on the ground that the claim has not been made online and Form W has been filed manually - HELD THAT:- In the present case, there is no dispute on the position that the turnover has been derived from direct exports and are thus zero rated. The petitioner has filed monthly returns on time. The claim for refund is also in time. Barring the fact that it is in a manual form, there is no other infirmity that arises. Till date there has been no disturbance of the deemed assessments for the months in question.
The impugned orders are set aside and the claims directed to be processed and refund issued as expeditiously as possible - Petition allowed.
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2020 (2) TMI 1464
Non-issuance of C-Forms - Central Sales Tax (CST) Registration not done - Rajasthan Value Added Tax Act - purchase of High speed diesel - it was held that High Court that denial of C Forms is purely on account of exigencies of advent of the GST regime which compelled the assessee to migrate to and obtain GST Registrations which rendered at the same time its CST registrations ineffective. This was inadvertent and beyond its control.
HELD THAT:- There are no ground for interference - SLP dismissed.
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2020 (2) TMI 1458
Seeking to declare the definition of Sec. 2(15)(ix) to Explanation I and Sec.2(33)(vi) to Explanation I of Tamil Nadu Value Added Tax Act, 2006, as void, unconstitutional, inoperative and unenforceable and the recoveries pursuant thereto are without authority of law and infringe Article 19(g) and 265 of the Constitution of India - Doctrine of mutuality - HELD THAT:- Very recently the Hon'ble Supreme Court has settled the issue in the case of STATE OF WEST BENGAL & ORS. VS. CALCUTTA CLUB LIMITED, [2019 (10) TMI 160 - SUPREME COURT]. The issue before the Hon'ble Supreme Court was whether the judgment and order passed by the Division Bench of the Hon'ble Calcutta High Court affirming the view expressed by the West Bengal Taxation Tribunal and disposing of the appeal preferred by the dealer along with other connected appeals holding, inter alia, that the assessee, the Calcutta Club Limited, was not liable for payment of sales tax under the provision of the West Bengal Sales Tax Act, 1994.
In the light of the recent decision of the Larger Bench of the Hon'ble Supreme Court, we have to necessarily interfere with the show cause notice issued by the Assessing Officers proposing to levy tax on the writ petitioners. However, we are convinced of the fact that there may be other issues, which may require to be adjudicated by the Assessing Officer and since the prayer sought for in these writ petitions are for declaratory relief, we dispose of these writ petitions by holding that the law laid down by the Hon'ble Supreme Court in the case of Calcutta Club Limited, holds good and it shall enure in favour of the petitioners' club.
The petitioners are permitted to give suitable reply to the notice issued by the Assistant Commissioner and in the light of the decision of the Hon'ble Supreme Court, the theory of mutuality will apply to both incorporated and unincorporated clubs and this issue should be taken into consideration by the respective Assessing Authorities - petition disposed off.
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2020 (2) TMI 1393
Exemption from Sales Tax - export of electrolytic tinplates to Nepal - only ground for denying the said exemption was that the Nepal invoice produced by the petitioner was not bearing the signatures of the two Border Custom Officials of India and Nepal, so as to certify that in fact the export was made - HELD THAT:- It is not in dispute that the petitioner Company was not entitled to the exemption of the tax on the export sale of electrolytic tinplates done by them to Nepal in the year 2004-05.
The required document was deposited with the Central Excise Department and they have also stated in their counter affidavit that the aforesaid export was made by the petitioner Company, which fact is also now accepted by the State Government in their supplementary counter affidavit, stating that the matter be remitted to the Assessing Authorities for taking a decision afresh - there are no reason for sending the matter back to the Assessing Authority once again, in view of the specific stand of the CGST and Central Excise that the export was made by the petitioner Company during the relevant period. If the export was made by the petitioner Company, it is not in dispute that the petitioner was entitled to the exemption in the tax.
Application allowed.
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2020 (2) TMI 1383
Levy of penalty u/s Section 51 of the Punjab VAT Act, 2005 - unaccountal of goods or not - Pressure Cookers - the goods were voluntarily reported at ICC - goods in question were voluntarily reported on its entry into the State of Punjab at ICC and were also reported at Himachal Pradesh tax barrier while making exist from Himachal Pradesh - goods meant for trade or not - duty to carry documents - HELD THAT:- There is no dispute on the fact that there was no document accompanying the goods whereby it was evident that the appellant had made sales to purchaser in Punjab. The stand taken that there was an advance purchase order does not enhance the case of the appellant, the purchase order was not accompanying the goods. Moreover, in case the position had been so, the invoice issued by the seller would have at least mentioned that the goods to be delivered to the purchaser at Dera Bassi whereas the invoice was issued in the name of the appellant at Mumbai. The destination as per the GR was different than stated in the invoice. Even in the declaration filed at Himachal barrier, the name of the consignee given was as appellant. It would be pertinent to note that even after detention of goods, no bill/invoice issued by the appellant in favour of the purchaser was produced. It was only first time before the Tribunal that one invoice was produced. The goods were not specific goods for purchase but were general pressure cookers. The facts are self evident that the transaction between the appellant and the dealer in Punjab was without any documentation - The questions raised for challenge to the penalty are factual issues. No case is made out for interference in penalty under Section 51(7) (b).
In the present case Section 51(12) could not have been invoked. The said provision comes into play only when the transporter fails to give information about the consignor or the consignee, but in the present case the documents produced at the time of checking gave the details of consignor and consignee. The penalty under Section 51(12) is quashed.
Appeal allowed in part.
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2020 (2) TMI 1379
Validity of the inter se seniority list published by the department - whether the claim of the petitioners that they having been appointed directly through the Public Service Commission, of the year 1972, have a right to be appointed substantively to a permanent post borne on the cadre displacing transference officers holding the same during the interregnum of the vacancy causar by reason of retirement, death, resignation or promotion of the directly recruited permanent holders of that post?
HELD THAT:- This Court would not have normally entertained writ petitions in a case where even the provisional seniority list has not been published. It is also a settled law that writ petitions cannot be entertained on mere apprehensions. However, the present case falls under a special category. The litigation with regard to the present case had started nearly 35 years back and already it reached up to the Hon'ble Supreme Court twice and thereafter, before the Division Bench which ultimately made it clear that whatever has been settled before the Hon'ble Supreme Court will not be permitted to be re-agitated or reopened. Paragraph 20 of the judgment in W.A.No.2280 of 2011 [2016 (8) TMI 1514 - MADRAS HIGH COURT] has already been extracted supra and it makes the position very clear in no uncertain terms. In fact the Division Bench while passing the order on 19.06.1986, had interfered with a provisional seniority list since it found the list to be against the rules.
The learned Additional Advocate General has made it clear to this Court that the Government is not taking sides either with the direct recruits or with the transferries and the Government wants to implement the orders of this Court. The learned Additional Advocate General also made it clear that no attempt is being made to tamper with the settled seniority and the official respondents are bound by the findings of the Division Bench of this Court in W.A.No.2280 of 2011. The stand taken by the learned Additional Advocate General is further strengthened by the rejection order issued to one Mr.Palani on 20.12.2019, extracted supra, where the department has made its stand very clear to the effect that G.O.Ms.No.116, dated 24.08.2012 has become final and therefore, there is no question of revisiting the seniority lists / consequential lists. It is further clear from the later Government orders passed in G.O.Ms.No.63, dated 11.06.2018 and G.O.Ms.No.100, dated 02.08.2013 that G.O.Ms.No.116, dated 24.08.2012 and G.O.Ms.No.139 have been followed up and further promotions have been given by maintaining the consequential seniority list in the State service.
The apprehension of the petitioners is that by doing this exercise, whatever benefits that have already enured to the transferries and which have been finalized by the earlier Division Bench in W.A.No.2280 of 2011, are attempted to be revisited. According to them, whatever is done, should not result in reopening or revisiting a settled seniority even in the consequential seniority in the State service. That is the reason why, the learned Senior Counsel appearing on behalf of the petitioners submitted that apprehension is not on the publication of the provisional seniority list. But the real apprehension is that an attempt is made to unsettle a seniority list that has already become final - In the provisional seniority list that was sent to this Court, the procedure that was followed up for the preparation of the seniority list has been explained. What becomes clear is that, the position of the transferries has been rearranged and they have been placed below the direct recruits who came into the State service to the post of Assistant Commissioner. This obviously means that the consequential seniority that resulted from G.O.Ms.No.116, dated 24.08.2012 has been revisited to that extent the apprehensions of the petitioners stands vindicated.
The Division Bench of this Court in W.P.No.2280 of 2011 [2016 (8) TMI 1514 - MADRAS HIGH COURT] at Paragraph No.20 has made it abundantly clear that the seniority list that was placed before the Hon'ble Supreme Court and which was agreed by all the parties concerned, cannot be revisited and there cannot be any deviation with regard to the promotions subsequently claimed by them. The language used by the Division Bench is straight and simple and this Court cannot be called to given an interpretation to these specific findings. If at all the official respondents had any doubts, they should have got it clarified before the Division Bench and such clarification cannot be given by a Single Judge.
Petition disposed off.
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2020 (2) TMI 1326
Maintainability of petition - petition was dismissed merely on the ground that efficacious and alternative remedy is available to the petitioner - HELD THAT:- The Division Bench though finally disposed of the appeal, but made no reference to the grievance of the petitioner about the absurd demand made by the Department and has dismissed the Petition merely on the ground that efficacious and alternative remedy is available to the petitioner.
We find from the impugned judgment that such contention has not been adverted to nor the Division Bench, while disposing of the matter took note of the earlier direction noted in the conditional order while issuing notice on the Writ Appeal.
It is deemed appropriate to grant liberty to the petitioner to approach the High Court by way of Review Petition, if so advised - SLP disposed off.
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2020 (2) TMI 1315
Service of Notice - Time Limitation - case of the petitioner is that notice is beyond limitation as prescribed under Section 29(4) of Punjab VAT Act - the case of the respondents is that assessment orders were finalised and computer entries were made, albeit fraudulently - HELD THAT:- No dates of assessment orders have been mentioned in the reply. In any case, if there was already an assessment order, there was no occasion to proceed under Section 29(2). From the writs challenging assessment orders, it is apparent that not only the notices under Section 29(2) were issued but the assessments were also framed under Section 29(2) of the Act. The contention of fraud does not enhance the case of the respondents. There is a specific provision, i.e. Section 29(7) authorising to amend the assessment orders in eventuality of fraud etc., in the present cases though reliance has been placed on the said provision, however no action till date is initiated under Section 29(7). Moreover, under Section 65 of the Act, there are supervisory powers with the Commissioner to initiate revision proceedings who at his own motion can call the pending as well as disposed of proceedings by the subordinate authority.
Normally interference under Article 226 of the Constitution of India is not made in the cases where there is alternative statutory remedy available, more so against challenge to show cause notice or assessment order directly. The law is well-settled that exception can be given to the self imposed restriction, for enforcement of fundamental right in case of violation of principles of natural justice, the proceedings are without jurisdiction or vires are challenged.
The facts are not disputed, admittedly, the notice is beyond limitation and it is in these circumstances that interference is made in the writ petition. The impugned notice is set aside - Adjourned to 16.4.2020.
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2020 (2) TMI 1250
Maintainability of remand assessment order - applicability of time limitation in passing order - according to the petitioner’s case, no hearing was given to the petitioner on that date and the order was passed beyond the period of two years, but has been ante-dated as 16.02.2015, in order to bring it within the period of limitation of two years - sale of excavators, cranes and its spare parts which are the earth moving machineries, which are claimed to be ‘capital goods’ - rate of tax on the impugned goods was in dispute - Section 42(2) of the JVAT Act.
HELD THAT:- Section 42(2) of the JVAT Act clearly shows that when the matter was remanded to the Assessing Authority by order dated 19.02.2013, as contained in Annexure-7 to the writ application, the re-assessment order had to be passed on or before 19.02.2015 - In the present case, the re-assessment order has been shown to have been passed on 16.02.2015.
There are force in the claim of the petitioner Company, inasmuch as, if by order dated 27.01.2015 the matter was fixed for 14.02.2015, there was no occasion for showing the next date of hearing as 14.02.2015/16.02.2015. This could have been done only in the event that 14.02.2015 was a non-working day for some reason, and thereafter the first working day was 16.02.2015, which is not the case here and neither stated in the order-sheet. If the matter was heard on 14.02.2015, there is nothing on record to show that it had been heard on that date, and if it was actually heard on 16.02.2015, there is nothing on record to show that the matter was ever fixed for hearing on 16.02.2015 - we cannot, but accept the plea of the learned counsel for the petitioner that this is an ante-dated order to cover up the period of limitation, which fact has not been specifically denied even in the counter-affidavit filed on behalf of the State, though specifically averred in paragraphs 37 to 55 of the writ application.
The contention of the learned counsel for the State that the goods in question were not the capital goods prior to 06.03.2007, is not prima facie acceptable to us. After 06.03.2007, there is specific entry in Schedule-II, Part-B, Entry-25 to the Act, which gives the description of the capital goods liable to tax @ 4% and this includes “Such as Excavator Hydraulic Excavators clampshell, Drojline, Rock Breakers, Mini Excavators, Crawler, Cranes, Wheeled Cranes, Wheel-loaders, Front end loaders, Shovels, Breakhoc & Articulated Cranes and all other similar implements and machineries in this category - A plain reading of definition of Capital Goods shows that capital goods includes, machinery, equipment, apparatus, tools, appliances, also used for mining purposes, and prima facie it appears that the goods in question in the present case, i.e., excavators, cranes and its spare parts which are the earth moving machineries, would come within the expression machinery, equipment, apparatus, tools and appliances, used for the mining purposes.
The impugned order dated 16.02.2015 passed by the Assessing Authority cannot be sustained in the eyes of law being void ab initio. Consequently, the revisional order dated 04.10.2018 passed by the Revisional Authority also, cannot be sustained in the eyes of law - Application allowed.
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2020 (2) TMI 1249
Demand of Differential Tax - activation and installation charges of DTH Set-Top Box (STB) called Digicomp collected by the petitioner at the time of installation of DTH set-top box - denial of input tax credit availed on the goods which were sold by the petitioner - It is the contention of the petitioner that it was paying service tax on installation and activation charges and therefore the petitioner cannot be made liable to pay VAT on such activation and installation charges under the provisions of the TN VAT Act, 2006.
HELD THAT:- It is noted that the petitioner was not only providing DTH service to its subscribers on which it was paying service tax, it was also collecting activation and installation charges at the time installation and activation of the DTH services - During the assessment year 2013-14, the petitioner claims to have stopped selling DTH Set-Top Box and started offering it as part of DTH service. However, in the impugned order for the said assessment are also the clauses in the agreements for the previous period have been relied upon.
It is further noticed that there may have been transfer of right to use of the dish net antenna, cable and accessories and later set top box as well. It is not clear from the impugned order and the notices issued by this order to the petitioner whether any proposal was made to collect VAT from the petitioner under section 4 of the TN VAT Act, 2006 as the petitioner had primafacie, transferred the right to use in favour of the subscribers. There is also no clarity on the issue relating to denial of credit. There is also no clear discussion in the impugned orders as to whether the petitioner has paid service tax on the activation installation charges on the whole or part of the amount.
Case remitted back to the respondent to pass fresh order on merits within a period of 3 months from date of receipt of a copy of this order - petition allowed by way of remand.
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2020 (2) TMI 1248
Levy of tax at reduced rate - value addition in respect of the sales of used cars by the petitioner - Notification G.O.,Ms.No.78, CT & R (B-2, dated 11.07.2011 – No.II(1)/CT & R/12(R-20)/2011 - HELD THAT:- It is already held that the benefit of Notification Number in G.O.M.S.No.79/CT & R/B2 at Serial No.1, dated 23.03.2007 and Notification Number in G.O.M.S.No.78/CT & R/B2 at Serial No.2, dated 11.07.2011, operate and apply to different kinds of dealers and therefore they are not to be taxed.
In the light of the clarification dated 25.10.2016 of the Authority for Clarification and Advance Ruling issued under Section 48 A of the Tamil Nadu VAT Act, 2006, the issue relating to availability of benefit of G.O.Ms.No.79 CT & R (B2) Dept. dated 23.3.2007 as amended by the of G.O.Ms.No.78 CT & R (B2) Dept. dated 11.7.2011 would require reconsideration by the respondent.
The issue relating valuation is answered in favour of the Petitioner. Thus, the demand of tax on Trade Discount in the impugned orders are quashed to that extent - As far as the issue relating to rate of tax is concerned, the same is remitted back to the respondent to pass fresh order in the light of the clarification issued by the Authority for Clarification and Advance Ruling vide its order dated 25.10.2016.
Petition disposed off.
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2020 (2) TMI 1247
Classification of goods - tablet computers with calling feature - Imposition of additional tax - CBEC Circular No.20/13-Customs dated 14.5.2013 - Whether classifiable under sub-heading No.8471 30 of the notification dated 1.8.2009 issued under Entry 45 of Schedule II to the GVAT Act? - HELD THAT:- When the excise tariff has been incorporated into the notification dated 1st August, 2009 issued in exercise of powers conferred by Entry 45 of Schedule II to the GVAT Act, then the interpretation of CBEC of such excise tariff is binding even on the authorities under the GVAT Act inasmuch as any other interpretation would defeat the very purpose of incorporation of the excise tariff in the notification issued under the GVAT Act - Apart from the Circular dated 14th May, 2013 issued by the CBEC, on facts it may be noted that till the notification dated 1.4 2011 came to be issued, the classification of the product, namely, tablet computers, under entry 8471 30 was accepted by the respondent authorities.
According to the respondents, tablet computers with calling facility are required to be classified under sub-heading 8525 50 at serial No.20 of the notification dated 1st August, 2009. On a perusal of the products falling under sub-heading 8525 50 at serial No.20, it is evident that such devices are in the nature of transmission apparatus which also have a reception apparatus, the principal function whereof is transmission of sound. Moreover, even according to the respondents, the product in question is a portable automatic data processing machine. Their only contention is that it also has a calling feature and can therefore be used as a mobile phone.
Reference may be made to the decision of the Supreme Court in the case of Mauri Yeast India (P) Ltd. v. State of U.P., [2008 (4) TMI 101 - SUPREME COURT], on which reliance has been placed on behalf of the petitioner for the proposition that it is now a well-settled principle of law that in interpreting different entries, attempts shall be made to find out as to whether the same answers the description of the contents of the basic entry and only in the event it is not possible to do so, recourse to the residuary entry should be taken by way of last resort. Applying the above decision to the facts of the present case, there is a specific entry viz. subheading 8471 30 which relates to portable digital automatic data processing machine. It is an admitted position that the product in question, namely, tablet computer is a portable digital automatic data processing machine.
Merely because cellular phones have been deleted from sub-heading 8525 50 at serial No.20 of the notification dated 1st August, 2009 and are no longer classified as IT products, it does not mean that the a tablet computer which contains additional function of calling feature and its principal function is that of automatic data processing machine ceases to be an IT product. As held by the Supreme Court in Mauri Yeast, when the product answers the description of the contents of the basic entry, recourse to the residuary entry cannot be made. Moreover, there is a specific entry in the notification for automatic data processing machines, whereas there is no specific entry for cellular phones.
This court is of the considered opinion that tablet computer is not comparable with any of the three devices which came to be deleted from sub-heading 8525 50 vide notification dated 1st April, 2011, inasmuch as, it is neither a car telephone nor a transportable telephone nor a cellular telephone. Thus, the functions mentioned and relatable to calling functions, etc. are merely incidental and the same do not alter the basic feature of the goods in question namely, tablet computers, which even according to the respondents, are portable automatic data processing machines - the respondent assessing authority is not justified in holding that the product in question, namely, tablet computers would fall under Entry 87 of Schedule II to the GVAT Act, namely, the residuary entry.
The impugned rectified assessment order dated 23.2.2019 is hereby quashed and set aside - The matter is restored to the file of the assessing authority, who shall pass a fresh assessment order classifying the product in question viz. tablet computers with calling facility, under sub-heading 8471 30 under Entry 4 of the Notification dated 1st August, 2009 issued under Entry 45 of Schedule II to the GVAT Act - petition allowed by way of remand.
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9911796707
