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TMI Blog2011 (4) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... d as an unspecified item as per Schedule CA to the VAT Act and is subject to tax at 12.5 per cent. Therefore, the only question that arises for determination in this writ application is whether the Tribunal below was justified in holding that the homoeo globules imported by the petitioner should fall within the residuary clause of the VAT Act notwithstanding the fact that Sl. No. 35A of the Schedule A contains an item, namely, "sugar manufactured or made in India". There is no dispute that the homoeo globules imported by the writ-petitioner contain sugar alone and it is manufactured in India by further processing the ordinary sugar available in the market by making it purer to the extent of 99 per cent whereas in the ordinary sugar available in the market, the purity is limited to 90 per cent. There is also no dispute that all along the writ petitioner got the benefit of the aforesaid Sl. No. 35A for which no tax was leviable, but in the year 2007, the concerned officer, for the first time, issued the aforesaid memo declaring that the homoeo globules come within the residuary entry as indicated in Schedule CA. Mr. Bharadwaj, the learned advocate appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the learned counsel for the parties and after going through the materials on record, we find that under the West Bengal Sales Tax Act, 1954 the word "sugar" was placed under serial No. 92 with no other suffix or prefix. From December 14, 1957 and onwards, no tax was payable on such item, the same being subject to additional Central excise duty. When the West Bengal Sales Tax Act, 1994 was introduced, under serial No. 79 of Schedule I giving description of tax-free goods, the following item appeared:- "Sugar manufactured or made in India". Subsequently, when the VAT Act came in the year 2003, the aforesaid item was retained as Sl. No. 35A and with effect from May 1, 2005, in addition to the aforesaid item, the words "misri and batasa" were added. As indicated earlier, respondent No. 2 before us issued the disputed memo thereby asking the writ petitioner to change its return by making payment of 12.5 per cent tax by treating the item as a residuary item, as according to him, the goods in question did not fall under any of the entry specified in Schedule A, or Schedule B, or Schedule C or Schedule D. In the case of Alpine Industries [2003] 131 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product of "lip salve" cannot have any application to a case of homoeo globules containing pure sugar which is purer than those available in the market for ordinary consumption and in such a situation, the said item definitely comes under the first item of serial No. 35A, namely, "sugar manufactured or made in India". The position would have been different if while preparing homoeo globules, in addition to sugar, some other materials were used and in that case, it could be reasonably argued that homoeo globule contained something in addition to sugar and as such, it was a different item. In the case of Commissioner of Commercial Tax, Indore v. Modern Agency [2006] 146 STC 1 (MP) relied upon by Mrs. Roy, the question was whether "Fevicol MR" used for pasting envelopes, papers, etc., comes within the entry No. 20 under the heading "paints". Such plea was held to be not tenable and was held to be taxed as stationery article under entry No. 21 of the concerned Act. While arriving at such finding, the Division Bench of the Madhya Pradesh High Court held that items are to be understood in their popular meaning and not in their scientific and technical meaning. Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as papar". Thus, after the description of the item, it has been further made clear in what name it is commonly known so that there is no confusion about the item. Item No. 35C states as follows:- "Sponge-wood commonly known as sola or solapith". Thus, sponge-wood in other form than sola or solapith would not get the benefit of that entry even if the item is basically sponge-wood. Similarly, item No. 36 speaks of "sweetmeat other than cake and pastry but including curd and khoa". Here, the Legislature has specifically excluded cake and pastry although otherwise, the same could be brought within the purview of sweetmeat. Item No. 37 mentions about "tender green coconut commonly known as daab" and thus, only that form of the green coconut which is commonly known as daab would get the benefit. Item No. 37A mentions about "textile fabrics made wholly or partly of cotton, rayon, flax, artificial silk or wool manufactured or made in India, other than those specified elsewhere in any other Schedule". Item No. 3 mentions about books and periodicals but excluding account books and diaries. Similarly, item No. 4 speaks of bread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was whether yeast comes within the head "chemical". It was contended on behalf of the State that yeast being a. "living organism" could not be a "chemical". In that context, the Supreme Court held that if there is a conflict between two entries one leading to an opinion that it comes within the purview of a tariff entry and another the residuary entry, the former should be preferred. In that context, the Supreme Court further held that unless the Department can establish that the goods in question can by no conceivable process of reasoning be brought under any of the tariff items, resort cannot be had to the residuary item. The well-settled principle of law that when two views are possible, one which favours the assessee should be adopted was reiterated in that case. Applying the aforesaid principles to the facts of the present case, we have no doubt to conclude that homoeo globules containing only sugar in purer form than the ordinary sugar available in market cannot be placed under residuary heading when there is a specific entry under section 35A to the effect "sugar manufactured or made in India" without any reference to any common man's description, dens ..... X X X X Extracts X X X X X X X X Extracts X X X X
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