2019 (4) TMI 925 - HC - VAT and Sales Tax

Levy of tax on EXIM Scrips - rejection of adjudication merely because the ground in that regard was not mentioned in the Second appeal memo - issue related to FY 1993-94 and 1995-96 - HELD THAT - Maharashtra Sales Tax Tribunal (MSTT) was of the view that the relevant documents available on record were not sufficient for adjudication of the additional ground that was sought to be canvassed by the applicant. It would have certainly required leading of additional evidence. We find that the applicant never made any application for leading any additional evidence to substantiate its claim that the Exim Scrips were in fact surrendered to the Government and were not sold. In fact, in the order of MSTT dated 8th December, 2006, it was specifically contended by the applicant that since the additional ground is a pure question of law, it could be raised at any time in the appeal proceedings and therefore the MSTT ought to have entertained the additional ground. Having found that the additional ground was not a pure question of law, but required additional documents and evidence which needed to be verified, produced and appreciated, we do not think that the MSTT was unjustified in not entertaining the additional ground regarding surrender of Exim Scrips - the MSTT was legally justified in not adjudicating on the point regarding levy of tax on Exim Scrips. The question answered in the affirmative and against the applicant and in favour of the revenue. Interpretation of statute - Section 41 (2) of the Bombay Sales Tax Act, 1959 and in Notification entry 39 under Section 41 of the Bombay Sales Tax Act, 1959 - whether plastic powder is not a chemical? - contravention by issuing declarations of T/TT Forms against his purchases of plastic powder or not? - issue related to F.Y. 1993-94 - HELD THAT - What Section 41(1) inter alia provides is that in public interest, the State Government may exempt any specified class of sales or purchases from payment of the whole or any part of any tax payable under the provisions of the BST Act. Then Section 41(2) stipulates that where any dealer or person has purchased any goods under a declaration given by him under any of the notifications issued under Section 41(1) and, (a) any of the conditions subject to which such exemption was granted; or (b) any of the recitals or the conditions of the declaration, are not complied with, for any reason whatsoever, or, in any other case, where such dealer or person was not entitled to issue such declaration; then without prejudice to the other provisions of the BST Act, such dealer or person shall be liable to pay purchase tax on the purchase price of the goods so purchased. How the purchase tax has to be levied is also thereafter set out. P.P. powder can never be termed as a chemical so as to fall within Notification Entry 39 issued under Section 41 of the BST Act. When one is to apply the common parlance test, it is clear the same cannot be described as a chemical . It is not in dispute that plastic granules / powder is obtained from crude oil and in scientific terms would be a chemical obtained in refining of crude oil. It also cannot be disputed that plastics are produced in the chemical industry. Though plastics are products of petrochemicals, these are not chemical intermediaries. P.P. powder cannot be termed as a chemical and therefore would not fall within Notification Entry 39 issued under Section 41 of the BST Act - the question will have to be answered in the affirmative and against the applicant and in favour of the revenue.

Summary

Issues Involved:
1. Levy of tax on Exim Scrips.
2. Classification of plastic powder as a chemical under the Bombay Sales Tax Act, 1959.

Detailed Analysis:

Issue 1: Levy of Tax on Exim Scrips

The first issue pertains to whether the Tribunal was justified in not adjudicating the point relating to the levy of tax on Exim Scrips because the ground was not mentioned in the Second appeal memo, and the appellant had not made any specific prayer to seek permission for raising additional grounds.

The applicant argued that the MSTT should have allowed the additional ground regarding the levy of sales tax on the surrender of Exim Scrips, as it is a pure question of law and could be raised at any time. The applicant cited the Supreme Court's decision in Commercial Tax Officer and Ors vs. State Bank of India and Anr [(2016) 10 SCC 595], which states that surrendered Exim Scrips are not exigible to tax.

The revenue opposed this, stating that adjudication of this ground required verification of relevant documents, which were not on record. The MSTT, after examining the available records, concluded that they did not contain any documents to conclusively show that the Exim Scrips were surrendered to the Government of India or the Designated bank. The MSTT found that some transactions were explicitly shown as "Exim Scrips sold," and therefore, additional evidence would be required for proper adjudication.

The Court agreed with the revenue, stating that the MSTT was justified in not entertaining the additional ground as it required additional documents and evidence, which were not provided by the applicant. The MSTT's decision was based on a detailed examination of the records, and the applicant failed to lay the factual foundation necessary to substantiate its claim.

Conclusion: The Court answered Question (I) in the affirmative, in favor of the revenue and against the applicant, stating that the MSTT was legally justified in not adjudicating the point relating to the levy of tax on Exim Scrips.

Issue 2: Classification of Plastic Powder as a Chemical

The second issue concerns whether plastic powder qualifies as a "chemical" under Section 41 (2) of the Bombay Sales Tax Act, 1959, and Notification entry 39, thereby entitling the appellant to issue declarations in Form T/TT for concessional tax rates.

The applicant contended that P.P. powder is a chemical obtained from petroleum products through a chemical process known as polymerization and should be considered a synthetic chemical eligible for concessional tax rates.

The revenue argued that P.P. powder is not a chemical under common parlance and cited the MSTT's earlier decision in the case of M/s Rajpal Plastic Industries, which held that plastic powder is not a chemical.

The Court agreed with the revenue, emphasizing the common parlance test. The Court noted that P.P. powder, while scientifically a chemical, is not considered a chemical intermediary or product in common parlance. It is used as a raw material in the plastic and textile industries and not for its chemical properties. The Court concluded that P.P. powder does not fall within Notification Entry 39 issued under Section 41 of the BST Act.

Conclusion: The Court answered Question (II) in the affirmative, in favor of the revenue and against the applicant, stating that the MSTT was legally justified in holding that plastic powder is not a chemical and that the appellant's issuance of T/TT Forms for its purchase attracted purchase tax liability under Section 41 (2) of the BST Act.

Final Disposition:
Both Sales Tax References were disposed of, with no order as to costs. The Court's answers to the Questions of Law were:
1. In the affirmative and against the applicant for Question (I).
2. In the affirmative and against the applicant for Question (II).