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VAT / Sales Tax - Case Laws
Showing 341 to 360 of 27514 Records
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2024 (1) TMI 668
Seeking issuance of issuance of a writ of certiorari - calling for the records leading to Exhibits P7, P8 & P9 orders issued by the 3rd respondent - seeking to declare that the "Multi-Function Printer" traded by the petitioner, falls under Entry 69(22)(c)(i) of the 3rd Schedule to the KVAT Act, 2003, attracting tax @ 4%/5% as applicable in the respective year - penalties - HELD THAT:- It is not in dispute that the Customs authorities had accepted classification of the machines under HSN Code 8443 3100 under the head 'Digital Multifunctional Device' under the provisions of the Customs Act and the Customs Tariff Act, which is corresponding to Entry 69(22) (c)(i) of the Third Schedule to the KVAT Act. The importer-seller itself had classified the said products under Entry 69(22)(c)(i) of the Third Schedule to the KVAT Act with HSN Code 8443 3100 under the Customs Act and the Customs Tariff Act. When the importer-seller had classified its machine under HSN Code 8443 3100, which falls under Chapter 84 of the Customs Tariff Act corresponding to Entry 69(22)(c)(i) of the Third Schedule to the KVAT Act, the petitioners herein being re-sellers of the machines purchased from the importer-seller could not adopt a different classification.
In the present cases, when the importer- seller had classified the said machines as 'Digital Multifunctional Devices' with HSN Code 8443 3100 under the provisions of the Customs Act, 1962 and the Customs Tariff Act, 1975 at the time of import and the said HSN Code is identical to Entry 69(22)(c)(i) of the Third Schedule to the KVAT Act, the petitioners cannot be said to have wilfully classified the machines under a wrong head with the intention to evade payment of correct/higher rate of tax at 13.5%. The penalty proceedings has to be initiated when there is wilful or contumacious act on the part of the assessee to evade payment of correct tax. The petitioners had reason to adopt the said classification as 'Digital Multifunctional Devices', as they being re-sellers could not have classified the machines to a different classification.
The initiation of penalty proceedings against the petitioners are not justified and therefore, the penalty orders impugned in these cases are hereby set aside.
Petition allowed.
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2024 (1) TMI 576
Refusal to grant the input tax credit - Section 28(2)(i) U.P. VAT Act - levy of Entry Tax - HELD THAT:- The High Court, without issuing notice to the respondent, proceeded to set aside the judgment of the Tribunal and remanded the matter back to the Assessing Authority. The High Court ought not to have passed such an order without giving an opportunity to the respondent. The appellant has right to be heard if the order of the Tribunal standing in its favour is to be set aside. At the same time, the High Court is under a duty to provide an opportunity to the affected party.
Appeal allowed.
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2024 (1) TMI 513
Interpretation of statute - time limitation - Rejection of refund claim - HELD THAT:- There has been a continuing lapse on the part of the petitioners herein. In the circumstances, the interest of justice would be sub-served, if interest @ 6% on the refund amount is directed to be paid w.e.f. 26.04.2023 till the date of realisation in the instant case.
It is needless to observe that the aforesaid refund amount with interest shall be paid within a period of four weeks from today without seeking any extension of time either before this Court or before the High Court.
SLP disposed off.
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2024 (1) TMI 512
Whether the Tribunal being the last fact finding authority ought to have returned a clear finding with respect to charges incurred by the importer till the stage of bringing the goods in the local area and charges incurred inside the local area after its entry; before including such charges in the value of goods defined u/s 2(h) Entry Tax Act, 2007? - HELD THAT:- With regard to the issue of demurrage, and the bank charges, the Tribunal in subsequent years has accepted the contention of the revisionists and held in their favour. In light of the same, the benefit is required to be given for the assessment year in question.
With regard to the unloading cost and other charges, the Tribunal has not come to any finding whether the same included unloading prior to entry of the goods into the local area or subsequent to entry into the local area. Accordingly, these issues are required to be remitted to the Tribunal for a fresh decision.
The question of law is, accordingly, answered in the affirmative in favour of the assessee and against the revenue.
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2024 (1) TMI 511
Levy of penalty - reversal of ITC as per return was not taken into consideration more particularly, relating to purchase return and there is no binding of any wrong availment of ITC are producing false bill - violation of principles of natural justice - Requirement of SCN that the petitioner is liable under the Sections 27(1) and 27(2) of the Act - HELD THAT:- When the show cause notice is not issued by invoking Section 27 and 27(4) of the Act then levying penalty under those sections is violating the principles of natural justice.
As rightly pointed out by the Learned Senior counsel appearing for the petitioner, even if the respondent is intended to impose the penalty under Section 27(4), then a show cause notice ought to be issued to impose under Section 27(4) simply, because show cause notice was issued under Section 22(2) the respondent cannot impose 300% penalty, retrospectively, by invoking Section 27(2) of the Act. Moreover, there must be a finding that wrong availment of ITC are produced false bills etc. The absence of such finding, the respondent lapsed jurisdiction for which the Judgment relied earlier i.e.(earlier Judgment) is applicable.
In the present case also the respondent have not rendered the such finding. In such circumstances, invoking section 27(4) read with 27(2) penalty cannot be imposed. Moreover, penalty cannot be imposed automatically. Some criminalities ought to be in existence to impose penalty and the framing of proof required for imposition of penalty is different from and much higher than i.e., required for the purpose of framing the best Judgment demand assessment. Therefore, the impugned orders cannot be sustained. Hence the impugned orders are quashed.
Petition allowed.
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2024 (1) TMI 510
Validity of impugned orders of assessment dated 12.07.2021 under the Tamil Nadu Tax on Entry of Goods into Local Areas Act, 2001 - stock transfer - exemption on the sales to CSD under the TNGST Act - revenue neutrality - time limitation - whether time spent in challenging validity of a levy would be excluded under Section 16 (5) of the TNGST Act? - HELD THAT:- On applying the construction placed on the expressions "assessments" and "in respect of", while interpreting section 16 (5) of the TNGST Act, it is clear that any proceeding connected with the assessment would be covered by Section 16(5) of the TNGST Act - there is no doubt in the light of the above discussion that the validity of the levy is certainly connected with the assessment and thus the time spent challenging the validity of the levy ought to be excluded while reckoning the limitation, for assessment of escaped turnover or value of Schedule goods or reassessment ought to be excluded in terms of Section 10 of Entry Tax Act read with Section 16(5) of TNGST Act.
Whether Section 16 (5) of the TNGST Act, would have relevance in determining what would constitute reasonable period for the purposes of making an assessment under Rule 4 of Entry Tax Rules? - HELD THAT:- The limitation provided under Section 16 of the Act is indicative of what would constitute reasonable period for the purpose of assessment under Rule 4 of the Entry Tax Rules. If the impugned orders of assessments are treated as original assessment under Rule 4 of Entry Tax Rules, which does not prescribe any limitation and thus ought to be made within a reasonable period. If one bears in mind the scheme of the Act, there is no doubt that the impugned orders of assessment are made within a reasonable period - thus, Section 12C of the TNGST Act, may not have any relevance in determining whether the impugned orders of assessment are barred by limitation or otherwise.
Legality of the impugned orders - escaped assessment - HELD THAT:- Assuming that the impugned proceedings qualify as assessments of escaped value of scheduled good in which event it would be governed by Section 10 of the Entry Tax Act read with Section 16 of the TNGST Act. Then applying the exclusion provided under Section 16 (5) of the TNGST Act, the impugned orders of assessment are within period stipulated under Section 10 of the Entry Tax Act readwith Section 16 of the TNGST Act and thus the plea of the impugned orders being barred by limitation is liable to be rejected.
The matters are remitted back for reconsideration - Petition disposed off by way of remand.
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2024 (1) TMI 509
Invocation of doctrine of promissory estoppel against the State for continuing to avail the tax concessions - whether tax incentives granted to the petitioner-industrial units under specific Rules and statutory Notifications framed & issued pursuant to the State Industrial Policy, 2004, could be withdrawn during the currency of the exemption period promised under the Industrial Policy/ Rules/Notifications? - HELD THAT:- It is, thus, quite apparent that petitioner units had acted upon the promise extended to them by the State for investing in backward Panchayats of the State categorized as tax free zone. The promise being exemption from payment of VAT/CST for a period of ten years from the date of commencement of production. The petitioner units changed their position and invested in the State by setting up industrial units in backward areas/tax free zone. The doctrine of promissory estoppel is definitely applicable to the facts of the instant case.
Having promised the petitioners exemption from payment of VAT/CST for a specific period, the respondents-State cannot be permitted to now assert that it is entitled to withdraw the tax concessions and to direct the industrial units to pay VAT/CST merely because in the subsequent years the Panchayats where the petitioners had set up their industrial units were de-notified and no longer carried the backward status. The growth of industrial sector can be said to be one significant factor in the development of an area.
Doctrine of promissory estoppel is applicable in the facts of the cases and can certainly be successfully invoked by the petitioners in such circumstances to compel the State to adhere to its side of bargain promised under the Industrial Policy, 2004 and the Rules framed thereunder. The action of the respondent in withdrawing tax concessions granted to the petitioner units is not in consonance with law.
The notifications withdrawing the backward area status from the concerned Panchayats will have only prospective effect i.e. will be applicable to industries being set up/expanded after the date of withdrawal notifications. These cannot be applied retrospectively to the petitioner units which had already come into production by the time the backward areas status was withdrawn from such Panchayats. These Panchayats shall have to be construed as backward areas/ tax free zone for the purpose of grant of tax incentives to the petitioners for specific period as per the promise extended by the State.
The impugned office communication dated 26.04.2013 directing realization of tax from the petitioner Industrial units established in tax free zones, the consequent notices issued to the petitioners to deposit tax are quashed and set aside. Petitioners are held entitled to tax exemptions in terms of the Industrial Policy, 2004, the Incentive Rules, 2004 and the tax exemption notifications dated 30.03.2005(GST & CST) and 19.01.2006 (VAT) till the coming into force of GST regime in the year 2017.
Petition allowed.
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2024 (1) TMI 508
Interpretation of statute - time limitation - Rejection of refund claim - no prescription of time limitation in the parent Act - striking down the rules as ultra vires.
Whether rules can provide a period of limitation when there is no such prescription in the parent Act? - HELD THAT:- It has been considered by the Hon’ble Apex Court in the case of BHARAT BARREL & DRUM MFG. CO. LTD. & ANR. VERSUS EMPLOYEES STATE INSURANCE CORPORATION [1971 (9) TMI 183 - SUPREME COURT]. The Hon’ble Supreme Court delved into the question as to whether limitation affects substantive and procedural rights - it has been inter alia held that where the legislature intends to provide the period of limitation it specifically provides for the same in the main Act and does not leave it to the government under its delegated power. Since the Rule bars the claim of the Corporation, the same can’t be within the realm of procedure. It was also held that since such a provision affects substantive rights, it must be dealt with the legislature itself and cannot be inferred from the rule making power unless provided for expressly.
In the present case as well, the right to refund gets extinguished by the time limit provided in the JVAT Rules. This certainly affects the substantive and statutory right of the petitioner to get refund to which it is guaranteed under Section 52 of the JVAT Act. Thus, we hold that the refund application of the petitioner could not have been rejected on the ground of limitation since Rule 19(2)(a) is de hors the provision of Section 52 of the JVAT Act.
From scrutiny of Section 55 of the JVAT Act it would make it evident that interest would be levied for the period commencing 90 days after the application for refund. Thus, the legislature has intended that Refund Application should be decided within a period of 90 days. In the present case, the same has been given a complete go by - the action of the Respondents is unjust and arbitrary which seek to defeat legitimate claims of the petitioner.
The impugned order has been rejected, is hereby, quashed and set-aside - Application disposed off.
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2024 (1) TMI 442
Jurisdiction of the Authorities to re-open the Assessment of Value Added Tax - HELD THAT:- This Court having gone through the judgement dated 06.11.2023 rendered by Hon'ble Supreme Court [2023 (11) TMI 298 - SUPREME COURT], a copy of which has been provided, is of the opinion that it is not contended by the State Respondents that the jurisdiction to re-open was exercised for some other reason except for the judgement rendered by this Court in Commissioner of Commercial Tax, U.P. Lucknow Vs. Modi Natural Ltd., Bisalpur Road, Bareilly [2019 (5) TMI 1087 - ALLAHABAD HIGH COURT], which has already been set aside by Hon'ble Apex Court, therefore, this Court finds it appropriate to quash the impugned notices issued under Section 29(7) of the U.P. Value Added Tax, 2008 for the Assessment Years 2011-2012 to Assessment Years 2016-2017, in so far as petitioners are concerned.
The approval that was granted by the Additional Commissioner for re-opening the Assessment under Section 29(7) of the Act also stands quashed.
The writ petitions stand allowed.
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2024 (1) TMI 441
Levy of purchase tax and its applicability on dealer who opted for composition scheme - Constitutional Validity of Section 15(5)(e) of the KVAT Act - seeking declaration that Section 4(3)(d) of the Finance Act, 2007 as prospective in nature.
Whether Section 15(5)(e) of KVAT Act, inserted by the Finance Act, 2007 is ultra vires Constitution? - HELD THAT:- The object sought to be achieved by the Amendment is to encourage purchase from registered dealers. This object will fail and instead encourage purchase from dealers outside the State since goods purchased within the State are only taxable and therefore, the object sought to be achieved will not be fulfilled. It is recorded that State has all the machinery such as, Tax Inspectors, Flying Squads etc. to identify the URDs and to register them as dealers - in view of the admitted discrimination by the State, the Amendment shall not be sustainable - the Amendment is discriminatory in nature and also not in favour of the welfare of the economy of the State as it encourages purchases from outside the State - question answered in the affirmative.
If the answer to the above question is in the negative, will it have retrospective effect i.e., from April 1, 2006? - HELD THAT:- Since, first question is answered in the affirmative, this question does not require any consideration.
Whether the order passed by the Hon’ble Single Judge requires any interference? - HELD THAT:- This question also answered in the affirmative.
Section 15(5)(e) of the KVAT Act is declared ultra vires Constitution of India - Petition allowed.
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2024 (1) TMI 440
Filing of form Manually instead of Electronically - Applicability of Sections 31(4) and 74(4) of the Karnataka Value Added Tax Act, 2003 - Form VAT-240 filed by the petitioner for the years 2012-13 and 2013-14 - seeking direction to respondent No.2 not to insist for electronic computer statement as per Circular bearing No. 43/2011-12, dated 31.12.2011 marked at Annexures B and C.
Whether the respondents can maintain the stand that Form 240 have been filed in 2015 as alleged by them? - HELD THAT:- This petition is filed in the year 2016. Till today, statements of objections have not been filed by the respondents. As already noticed, statement of objections are not filed disputing the authenticity of these documents. Respondents have not produced Form 240 said to have been filed in the year 2015 as alleged by the respondents. Hence, this Court is of the view that Form 240 vide Annexures D and E have been filed manually by the petitioner as on the date mentioned in the said forms.
Whether the Form 240 has to be filed electronically? - HELD THAT:- Under Section 33 of KVAT Act of 2003, there is a mandate to maintain the records in electronic form. The mandate is in respect of accounts as referred in Section 31 of the KVAT Act of 2003. The accounts referred in Section 31 refers to the accounts maintained by the dealer pertaining to his business transaction. Section 31 does not refer to Form 240. This being the position, Sections 31 and 33 cannot be interpreted to say that Form 240 is to be furnished electronically.
It is relevant to note that Annexure – A is the notice under Section 31(4) read with Section 74(4) of the KVAT Act, 2003. Notice indicates that the petitioner has filed Form 240 manually. By referring to the Circular Nos. 43 and 44/2011-12 dated 31.12.2011, the respondents have demanded penalty in exercise of power under Section 74(4) of the KVAT Act, 2003 on the premise that VAT form 240 is not filed in the electronic form. In the said notice the respondent admits that the petitioner has filed Form No. 240. Thus the contention that the Form No. 240 is not filed at all is rejected.
There is nothing in the Act to hold that Section 74(4) of the KVAT Act, 2003 mandates the dealer to furnish Form 240 electronically. On the basis of the circular which is alleged to have been issued mandating From 240 to be filed electronically, the respondent cannot contend that form 240 filed manually, which was in time, is not a valid submission of Form 240. As already noticed, the circular does override the requirements of Section 74(4) and the power under Section 59 to issue instructions to the authorities cannot be construed as a power to impose conditions and restrictions on the dealer.
Petition allowed.
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2024 (1) TMI 330
Refund of the Central Sales Tax (CST) amounts deposited by the petitioner - rejection of refund without assigning any reasons - violation of principles of natural justice - HELD THAT:- It was necessary for the Assessing officer/Deputy Commissioner of State Tax to have addressed the issue of refund as claimed by the petitioner in a more elaborate manner. He ought to have furnished adequate reasons on the case which was put up by the petitioner for his consideration, in taking a decision on such refund claim of the petitioner. It is noted that the refund application of the petitioner dated 20 June, 2017 have raised substantive grounds which were required to be dealt with reasons. However, considering the meager reasons, as recorded by the Deputy Commissioner of State Tax, it is opined that such reasons are surely not sufficient so as to amount to an appropriate adjudication of the refund claim of the petitioner, as the law would mandate.
The Assessing Officer/Deputy Commissioner of State Tax needs to de novo consider the proceedings and pass appropriate assessment orders, which may be a consolidated order or otherwise, however, by furnishing appropriate reasons on the refund application of the petitioner in accordance with law.
Petition disposed off.
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2024 (1) TMI 329
Violation of principles of natural justice - prior to the filing of reply, the impugned order was passed by the respondent without providing any opportunity of personal hearing to the petitioner - calling for the details of the imported goods from the petitioner - HELD THAT:- In the present case, it appears that the petitioner is in the business of supplying bone meal and they had not at all imported any materials at any point of time. However, the notice was issued by the 1st respondent as if the petitioner had imported timber and the said information is said to have been obtained by the 1st respondent from the Customs Department. Further, according to the 1st respondent, the petitioner had received the show cause notice and they had not filed any reply for the said notice.
This Court is of the view that even assuming that the petitioner had received the notices and not filed any reply, the 1st respondent is supposed to have provided the opportunity of personal hearing to the petitioner before the passing of impugned order, which is mandated in terms of Section 75(4) of the Goods and Services Tax Act, 2017 and the same has not been done in the present case.
Therefore, this Court is of the considered view that any order has to be passed only after providing an opportunity of personal hearing. Further, in the present case, the petitioner had passed the impugned order under the misconception that the petitioner had imported timber, which is totally contrary to the business of the petitioner. Hence, for the interest of justice, the impugned order is liable to be set aside.
Accordingly, the impugned order dated 13.10.2021 is set aside. The attachment notice dated 02.08.2022, which was issued based on the said impugned order, shall stand lifted. While setting aside the said order, this Court remits the matter back to the 1st respondent - Petition disposed off.
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2024 (1) TMI 299
Classification of goods - CAT-5/CAT-6 cables - HELD THAT:- CAT-5/CAT-6 cables will fall in the Category of “Computer System and peripherals” which is specified in the Entry No. 3 right from its inception.
Hence, no case for interference is made out in exercise of jurisdiction under Article 136 of the Constitution of India - SLP dismissed.
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2024 (1) TMI 298
Penalty for not deducting TDS on the amounts which were paid to the U.P. Awas Evam Vikas Ltd. - It was held by High Court that Non deduction of TDS would be deemed to be intentional for which the penalty has rightly been imposed - HELD THAT:- No case for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India.
The special leave petitions are dismissed.
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2024 (1) TMI 297
Detention of goods - detention on the ground that goods were not accompanied with the proper and genuine documents and that the petitioner had made an attempt to evade tax - HELD THAT:- The plea of the petitioner that the transaction is not taxable, is a bonafide plea and in the absence of either mis-declaration or concealment, it has to be held that the exercise of power of imposing penalty at Check Post, was not warranted.
Undoubtedly, sale against From-C and Form E-1 is exempt from CST under Section 6(2) of the CST Act ; Form-C needs to be furnished by the seller to the prescribed authority of the Seller’s State; so the onus is on the State from where the goods are being sold to ensure that the Form against which such sale is being conducted, is legitimate and genuine - the finding in the impugned order regarding genuineness of the statutory Forms C and E-1, issued by the Excise & Taxation Department of the other States, is unwarranted , perverse and contrary to law.
In ONKARLAL NANDLAL VERSUS THE STATE OF RAJASTHAN AND ANOTHER [1985 (9) TMI 314 - SUPREME COURT] the Supreme Court held that there is no antithesis between a sale in the course of inter-State trade or commerce and a sale inside the State. Even an inter-State sale must have situs, and the situs may be in one State or another.
It is held that the ETO at the Barrier or the Check Post, in the facts and circumstances of the case, could not have examined the nature of the sale transaction and act beyond the limited jurisdiction of examining the documents, accompanying goods, and impose a penalty on a transaction not otherwise liable to tax under the Act; and that the impugned order is perverse for not considering the fact that the Assessing Authority, in the assessment order dt. 04.09.2008, passed for the Assessment Year 2006- 07, had accepted the Returns filed by the petitioner and had not imposed any tax on the transaction disputed in the impugned order. It is also held that the genuineness of the Form-C and Form E-1, cannot be doubted by the Excise & Taxation Authorities in Himachal Pradesh.
The respondents are directed to refund the penalty collected with interest at the rate of 6% per annum from the date on which the said amount was taken from the petitioner till the date of repayment - the Revision is allowed.
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2024 (1) TMI 296
Classification of goods - memory cards - IT products covered under Entry No. 10 of Part A of Entry 65 of Schedule IV of the Rajasthan Value Added Tax Act, 2003 or taxed at residuary rate as per Entry 78 of Schedule V to the RVAT Act? - HELD THAT:- As per settled position of law, a specific entry would always trump a general entry and the burden would always be on the Revenue to prove that the goods in question would have to fall in residual entry as opposed to the specific entry. The Commissioner opined that since the use of memory cards is not restricted to recording sound and that since memory card can be used in a variety of devices, to increase functionality, the same cannot be said to be covered under any of the specific entries. A bare perusal of the aforesaid determination would reveal that the same is merely the opinion of the Commissioner and is not supported by any cogent reasons and or technical/expert opinion. It cannot be emphasized enough that in indirect tax matters, long standing classification cannot be disturbed merely on personal opinion/knowledge. The revenue has to discharge its burden to prove that the change in classification is warranted and necessary by adducing cogent and corroborating evidence. Mere assertion or personal opinion, even of the Commissioner, without any supporting evidence is of no use or value.
Since the revenue has not discharged its burden to show that the good in question, i.e. memory cards, which is undisputedly ‘media’ which can record ‘sound’ and other phenomena, would not be covered under the specific entry of either Entry No. 10 or Entry No. 3 of Part A to Schedule IV to the RVAT Act, the levy of additional tax and interest, merely on the basis of determination order passed by the Commissioner, cannot be sustained.
Because the Entry 10 of Part A of Schedule IV to the RVAT Act is inclusive and illustrative and not exhaustive. The items CD and DVD are merely listed as examples - Because reassessment after substantial period of time cannot be made merely on change of opinion.
Because the case is of classification and interpretation of taxing statute and not of avoidance or evasion of taxes, therefore invoking of Section 25 and 26 of the RVAT Act was not warranted. Further the judgment of RAJASTHAN FELTS MANUFACTURING COMPANY VERSUS THE STATE OF RAJASTHAN AND OTHERS [1978 (1) TMI 160 - RAJASTHAN HIGH COURT], relied upon by learned counsel for the revenue to support reassessment, was passed under the erstwhile regime of Rajasthan Sales Tax Act, 1994, that too under different facts, and therefore the same has no application in the facts and circumstances of the present case.
The question(s) of law framed hereinabove have to be answered in favour of the petitioner-assessee and against the Revenue - the STRs are allowed.
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2024 (1) TMI 242
Classification of goods - Entitlement for exemption of payment of VAT in excess of 5% thereupon - Pizza - sandwich - It was held by High Court that This Court holds that the question(s) of law framed above are answered in the favour of the petitioner-assessee and against the respondent-revenue. As a result, pizza and sandwiches are held to be cooked foods - HELD THAT:- There are no reason to interfere in the matter. The Special Leave Petition is dismissed.
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2024 (1) TMI 241
Direction to refund allegedly due alongwith interest - Petitioner filed a return for the fourth quarter and claimed a refund under the Delhi Value Added Tax Act - HELD THAT:- The petitioner tried to file Form DVAT-21, however, on account of a technical error, the same was not accepted. As per the petitioner, the refund for the tax period already paid has already been filed by the respondents and no demand appears in the portal, however, refund has not yet been processed for the said quarter.
Issue notice. Notice is accepted by learned counsel appearing for respondents, who submits that on account of an error, the same could not be processed and assures that the refund shall be processed within a period of two weeks from today. The statement is taken on record.
The petition is disposed of, directing the respondents to process the refund within a period of two weeks.
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2024 (1) TMI 240
Classification of the coconut oil sold by the appellant - to be classified under Entry No. 25 of the Third Schedule appended to DVAT Act as ‘Edible Oils and Oil cake’ or to be classified as a residuary item under Section 4(1)(e) of the DVAT Act bi-monthly publication namely ‘Amagram’? - HELD THAT:- The argument of the appellant that the product Amagram is a periodical since it is published periodically, and is a book having collection of number of leaves or sheets or paper, is not persuasive. Even though the product is published periodically, but from the bare glance, the same in the nature of a catalogue, containing list of goods that can be bought from Amway. Though it contains other information like upcoming training schedules, achievement levels of distributors, etc., however, the nature of the product being a catalogue, cannot be taken away.
Strictly speaking, even a diary is a book and the book is also a printed material. The printed material has been taxed under Entry No. 52 of the Third Schedule, however, the limited exemption has been given to the material which falls under Entry No. 5 of the First Schedule. The same has to be given a restricted interpretation.
In the case of INDUSTRIAL AND COMMERCIAL SERVICE, ALLAHABAD VERSUS COMMISSIONER OF SALES TAX, UP., LUCKNOW [1962 (12) TMI 44 - ALLAHABAD HIGH COURT], the Division Bench of the Hon’ble Allahabad High Court had answered the issue whether “books” used in Section 4 of the UP Sales Tax Act would include the diaries sold by the appellant therein. In terms of Section 4 of the UP Sales Tax Act, the sale of books was exempted from taxation. The appellant therein was selling the diaries, which were claimed to be books as they were bound like a book. There were few pages in the diary containing general information on various matters and the Shlokas from Bhagavad Gita were referred. The Hon’ble High Court noted that ‘book’ has got several meanings and in a wider sense, means a writing in the collection of sheets of paper, blank, written or printed, strung or bound together and the diary would come within this meaning. However, it held that the diary would not come within the restricted meaning because primarily it is meant to be written and not to be read. It held that the books referred to in Section 4 are not to be interpreted in a wider sense but in a restricted or popular sense, which is the one that can be read for education, knowledge, enlightenment or recreation, the book that one would find in a literary or a book seller shop.
In the present case also, the appellant is contending that ‘Amagram’ is a periodical since the same is published periodically and would fall within Entry 5 of the First Schedule. On first blush, the contention might appear to be merited, however, when the Entry is read as a whole, which is accompanied with journals, including maps, charts and globes, the intention of Legislature does not appear to exempt periodicals as circulated by the appellant.
In the case of MINERVA PRINTING WORKS VERSUS STATE OF BIHAR [1973 (6) TMI 51 - PUNJAB HIGH COURT], the Hon’ble Patna High Court had considered whether the sale of blank registers, exercise books, letter pads was exempted under the Bihar Sales Tax Act in the category of books and periodicals. It was held that the word ‘book’ is used along with the word ‘periodical’ and are meant for reading purposes and derive lessons from and gather information. Therefore, in a wider sense, blank registers, exercise books, etc. might fall within the category of books, the restricted meaning has to be given by looking at the entry in its entirety and gathering the intensity of the Legislature.
In the present case also, the product sought to be classified as periodicals by the appellant, is essentially in the nature of catalogue containing information in relation to the products being offered for sale. No doubt, certain other information and news in relation to events, being organized, is also mentioned for the purpose of the consumption of its dealers. The same, however, cannot be held to be a periodical as referred in Entry No. 5 of the First Schedule. Moreover, it is not disputed that ‘Amagram’ is in the nature of a ‘catalogue’, which has specifically been included in Entry No. 52 of the Third Schedule by Circular No. 2 dated 26.04.2005 - It is settled law that a person claiming exemption has to establish that the product squarely falls within the category of exempted goods. It is also settled that while interpreting the exemption notification / statute, a consideration in favour of the Revenue has to be given and in case of ambiguity, the same has to be interpreted against the assessee.
The question of law as to whether the periodical ‘Amagram’ is to be classified as catalogue liable for tax under Entry 52 of Third Schedule of the DVAT Act, is answered in favour of the Revenue.
Coconut Oil - HELD THAT:- In view of the admitted fact that the coconut oil is sold by the appellant in small packs; is displayed in the category of hair care; the manner in which it is to applied on hair; and the purpose for which it is purchased by the consumer leaves no manner of doubt that the coconut oil sold by the appellant is wrongly sought to be classified under Entry 25 of the Third Schedule of the DVAT Act - the question of law as to whether the coconut oil is wrongly classified under Entry No. 25 of the Third Schedule of the DVAT Act is answered in favour of the Revenue as well.
Appeal disposed off.
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9911796707
