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TMI Blog2002 (12) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... n Singapore Pvt. Ltd., incorporated under the Indian Companies Act, 1956 with its registered office at New Delhi and factory at Noida. The petitioner-company started its operations in India in the year 1997 and is engaged, inter alia, in manufacturing, import and distribution of a wide range of electronic products including photocopiers. 4.. It is alleged in paragraph 4 of the writ petition it is stated that the photocopiers of the petitioner are one of the most advanced in the world. 5.. In paragraph 4(ii) of the writ petition it is alleged that a photocopier like other electronic goods, i.e., transistors, televisions, V.C.Rs., V.C.Ps., radio receivers, record players, tape deck mechanisms are controlled with or works with the help of microchips or microprocessors. A photocopier is based on and comprises of various electronic printed circuit boards and the entire functioning of the photocopier is automatic. The electronic components of a photocopier include microchips, resisters, capacitors, transistors and integrated circuits, etc. Once data is fed into the machine the electronic component, i.e., the microprocessors of the photocopiers control and direct the carrying out of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale of photocopiers has been subjected to Central sales tax at 2 per cent as per the notification and trade tax as applicable to electronic goods for the assessment years 1997-98 and 1998-99, by the U.P. Trade Tax Department without any objection. In paragraph 7 of the writ petition it is stated that the fact that the photocopiers of the petitioner are electronic goods has been accepted by the Chief Executive Officer, Noida, who has issued an eligibility certificate dated August 9, 1999, on this basis for concession in trade tax for the period May 28, 1998 to May 27, 2006. True copy of the certificate issued by the C.E.O., Noida, has been annexed as annexure 6 to the petition. 9.. In paragraph 8 of the writ petition it is stated that the U.P. Trade Tax Department thus fully accepted the fact that such photocopiers are "electronic goods" and has accordingly assessed the petitioner's turnover on that basis under the U.P. Trade Tax Act and Central Sales Tax Act. However, subsequently the Assistant Commissioner, Trade Tax, Noida has taken the view that the photocopiers are duplicating machines and are liable to be taxed as such both for the purposes of Central sales tax and for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t judgment in BPL case [2001] 121 STC 450; (2001) UPTC 246; (2001) 2 SCC 139. 12.. In paragraph 12 of the writ petition it is stated that the photocopier is an electronic machine and hence it is covered by entry No. 74 and there existed a separate entry for duplicating machine being entry 45. The respondents have completely ignored these facts while passing the impugned directive and circular. The photocopiers were specifically classified under the entry electronic goods vide entry No. 74 which is arbitrary one vide annexure 8 to the writ petition as amended vide notification dated October 1, 1994. True copy of the notification dated October 1, 1999 is enclosed as annexure 9 to the writ petition. It is alleged in paragraph 14 of the writ petition that the petitioner's photocopiers are electronic goods, which are an entirely distinct and wholly separate items. Duplicating machines refers to the mechanical duplicating machine, which are distinct in principle and functioning from the petitioner's photocopier, which functions on electronic principles and employs electronic technology. Duplicating machines are covered under entry No. 45 of Schedule I to the Act, which has been quoted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this case and we have perused the same. The respondents have relied on the notification dated October 10, 1995, annexure C.A. 2, Notification dated November 23, 1998, annexure C.A. 3, Notification dated January 15, 2000, annexure C.A. 5 and Notification dated June 27, 2002, annexure C.A. 6 to the counter-affidavit. On the basis of the same it is contended that the intention of the Government was that photocopying machines are to be treated under the heading "Office machines and appliances" and accordingly the tax was to be levied as such under Sl. No. 45 which has now been changed to Sl. No. 70(i). Hence it is alleged that there is no infirmity in the impugned assessment orders. 18.. The allegations in paragraph 4(ii) and (iii) have not been specifically denied in the counter-affidavit. In paragraph 7 of the counter-affidavit all that has been stated is that these allegations are technical details with which the respondents are not conversant. The same reply has been given to paragraph 4(iv) and (vii) of the writ petition. It has therefore to be held that the factual allegations, paragraph 4 of the writ petition, are not denied by the respondents. It is well-settled that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansistors that control and direct electronic current". 22.. In our opinion this writ petition deserves to be allowed in view of the decision of the Supreme Court in BPL Ltd. v. State of Andhra Pradesh [2001] 121 STC 450; (2001) UPTC 246. In that case the Supreme Court was called upon to answer the question as to whether fully automated washing machine could be regarded as electronic goods so as to attract the lower rate of sales tax. In paragraphs 12 and 13 of that decision the Supreme Court while referring to the dictionary has observed that even washing machine can be regarded as being one which run on centrifugal force but the operation or the running of these machines is completely controlled by the microprocess technology involved in the said machines. The entire functioning of the washing machine is automatic. Data is fed in the machine and thereupon it is the microprocessors which control and direct the carrying out of the various functions of the machines which results in the clothes being washed in the desired manner. 23.. In our opinion the decision of the Supreme Court in BPL Ltd. v. State of Andhra Pradesh [2001] 121 STC 450; (2001) UPTC 246, squarely covers the pre ..... 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