9911796707
TMI Blog2004 (3) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... no connection or similarity whatsoever with the ordinary cement, which is used in constructions. The oil well cement is not useful to anybody, except for the companies like ONGC, involved in drilling of oil wells. The petitioners are importing this from Tamil Nadu from a manufacturer. It is contended that in terms of section 3 of the Act, tax can be levied on entry of the notified goods into any local area of Andhra Pradesh, for sale or consumption. The goods notified on May 3, 2001 were (1) high speed diesel oil (2) LDO, (3) Furnace Oil (4) Cement. The rate of tax for cement was 16 per cent. In the year 2002, by G.O. Ms. No. 552, dated September 12, 2002 published on September 23, 2002, oil well cement had been notified and tax was levied at 4 per cent. Since oil well cement was notified for the first time by G.O. Ms. No. 552, it is contended that prior to that date, i.e., September 23, 2002 no tax was payable on import of oil well cement. But the Commercial Tax Officer, Rajahmundry, passed a provisional assessment order, dated April 12, 2002 assessing the petitioner under the provisions of the Act and levied tax at 16 per cent on the value of 600 metric tonnes of oil well cem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) There shall be levied and collected a tax on the entry of the notified goods into any local area for sale, consumption or use therein. The goods and the rates at which, the same shall be subjected to tax shall be notified by the Government. The tax shall be on the value of the goods as defined in clause (n) of sub-section (1) of section 2 and different rates may be prescribed for different goods or different classes of goods or different categories of persons in the local area; (b) the tax shall be payable by the importer in such manner and within such time as may be prescribed; (c) the rate of tax to be notified by the Government in respect of any commodity shall not exceed the rate specified for that commodity under the Andhra Pradesh General Sales Tax Act, 1957 (Act VI of 1957) or the notifications issued thereunder: Provided that the tax payable by the importer under this Act shall be reduced by the amount of tax paid, if any, under the law relating to general sales tax in force in the Union Territory or State, in which the goods are purchased . . . . . Sub-section (1) of section 3 makes it clear that the goods and rates at which the same shall be subject to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In construction of building, houses, etc. 3. Chemical composition . . . (i) Sulphur Trioxide % 3.00 Maximum Sulphuric anhydride 2.5 % maximum (ii) Loss in ignition % 3.00 Maximum 4.0 % maximum (iii) Insoluble residue % 0.75% maximum 4.0 % maximum (iv) Magnesium oxide % 6.00 Maximum Magnesia 6.0 % maximum (v) Tricalcium silicate % 48.00 min 65.00 max . . . (vi) Tetra calcium aluminoferrite + twice the tricalcium aluminate % 24.00 max . . . 4. Physical properties: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile construing the word 'coal' in entry 1 of Part III of Schedule II, the test that would be applied is what would be the meaning which persons dealing with coal and consumers purchasing it as fuel would give to that word. A sales tax statute, being one levying a tax on goods, must, in absence of a technical term or a term of science or art, be presumed to have used an ordinary term as coal according to the meaning ascribed to it in common parlance. Viewed from that angle both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include 'charcoal' in the term 'coal'. It is only when the question of the kind or variety of coal would arise that a distinction would be made between coal and charcoal; otherwise, both of them would in ordinary parlance as also in their commercial sense be spoken as coal. (2) Minerals and Metals Trading Corporation of India Ltd. v. Union of India [1972] 2 SCC 620. In para 9, the Supreme Court held: Apart from all this it must be remembered that in interpreting items in taxing statutes resort should be had not to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, etc., and also by common people for building residential or commercial, buildings. Anyone buying cement for building purpose would under no circumstance buy refractory. Similarly a mason or a supervisor would under no circumstance use refractory material in making a normal construction. The refractory is used for entirely different purpose, namely, for furnaces, linings and for insulation. A dealer would not supply refractory to anyone wanting to buy cement. In Cemento Corporation Ltd. v. Collector, Central Excise [2003] 129 STC 313 (SC) [2002] 8 SCC 139, it has been held that it is axiomatic that if the product is not cement but can be used for some purposes like cement, such product is not cement. We are, therefore, of the opinion that refractory material produced by the appellant does not fall within the entry 'all types of cement' and consequently it is not exigible to levy of export tax. Following the principles laid down by the judgment of the Supreme Court, as we have seen from the statement furnished to us and also from the correspondence between the petitioners and the respondents, we have no doubt in our mind that the oil well cement class G (HSR type) is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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