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TMI Blog2004 (12) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... 1979 to Oral. June 30, 1980 by the opponent for the purpose of sales tax assessment are liable to be taxed under entry 9, Part A of Schedule II to the Gujarat Sales Tax Act, 1969, and not under entry 13 of Schedule III of the said Act; and (b) Accordingly removing of penalty of Rs. 2,702 imposed under section 45(6) of the said Act." 2.. The respondent-assessee, a registered dealer under the Act, is a trader (reseller) in bronze powder. The assessee paid tax along with the returns on the basis that the bronze powder, which is used for printing of textile fabrics is covered by entry 9, Part A of Schedule II of the Act. However, the Sales Tax Officer treated the sales as falling within entry 13 of Schedule III to the Act and assessed acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the order of the Tribunal that the Government agent representing the Revenue had categorically submitted before the Tribunal that "over and above its use in the textile industries for bringing out golden coloured designs on the cloths, it has many other uses such as moulding bronze idols, etc.". Mr. Bhatt placed reliance on the decisions of this Court in the case of Quality Chemicals v. State of Gujarat [1994] 94 STC 450 and in the case of Gujarat Distributors v. State of Gujarat [1975] 36 STC 116 to submit that the question of interpreting an entry in a taxing Schedule and giving its meaning in the popular sense would arise only if the entry contains language which is capable of being considered in the popular sense. That while constru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inting designs on cloths and the said powder is primarily and principally used to bring out golden coloured designs on cloths, after mixing in the said powder binders and other oily substance by the textile mills and Chippas. The powder in question is so used as dye that textile mills and Chippas bring out golden coloured designs on cloths and it plays the role of printing designs as dyes with the help of other materials like binders and oil or chemicals.. . .. . .". 8.. While dealing with the contentions raised by the Government agent before it, the Tribunal after referring to the submission that the bronze powder has many other uses such as moulding the bronze idols, etc., states: "This use or other uses of the bronze powder in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n experience that the identity of an article is associated with its primary function. It is only logical that it should be so, when a consumer buys an article, he buys it because it performs a specific function for him. There is a mental association in the mind of the consumer between the article and the need it supplies in his life. It is the functional character of the article which identifies it in his mind." The aforesaid observations answer the contention raised by the learned AGP that only the case of the seller is to be taken into consideration while ascertaining as to in which entry a particular product would fall and not the use by the purchaser. The apex Court has categorically stated that the functional character of the article o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle or a word of technical or a scientific character that it requires to be considered in technical or scientific manner. 11.. In the case of State of Gujarat v. Shah Bhagwanji Manekchand [1982] 50 STC 147 (Guj) while dealing with the same entry, i.e., entry No. 9, Part A of Schedule II to the Act the Court after referring various decisions including a decision of this Court in the case of Gujarat Distributors [1975] 36 STC 116 laid down that: "For an article to be qualified as 'chemicals' within the meaning of entry 9, Part A of Schedule II to the Gujarat Sales Tax Act, 1969, it must be an intermediary chemical product which can be utilised as such for producing other finished products." Therefore, on application of the aforesaid test al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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