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TMI Blog2008 (9) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... ne generator set would not fall under item No. (xxviii) of serial No. 54B and unlike others the spares of specified machineries are only included in serial No. 54C. The petitioner prays for setting aside the impugned order under section 102 of the Act, and order declaring that the diesel engines and spare parts, accessories and components thereof are respectively covered by item No. (xxviii) and item No. (xxix) of serial No. 54B of Part I of Schedule C to the West Bengal Value Added Tax Act, 2003. This issue had been disposed of by the Bench of this Tribunal consisted of the honourable Chairman and the honourable Technical Member in Kasaban Services v. C.S.T. (Case No. 1 R.N. 167, 168 and 180 of 2006 decided on November 8, 2006 West Bengal Taxation Tribunal) with observation, inter alia, relying on this decision Reproted as Commissioner of Income-tax v. Sri Krishna Bottlers Private Limited [1989] 175 ITR 154 (AP) and the principle as detailed hereinbefore, one has to take a view as to whether diesel engines and generator sets should fall within the purview of the expression 'plant and machinery' as used in serial No. 54B of Part I of Schedule C of the VAT Act, 2003. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties for which it has been put to use. (para 19). (iv) If diesel engine and diesel generator sets can be considered as plant and machinery, spare parts, accessories, components will also be automatically covered by item No. (xxiv) of serial No. 54B of Part I of Schedule C. (para 20). (v) The nature as to how these items are put to use should be the guiding principles in deciding the issue. (para 21). (vi) An item has to be interpreted in its popular sense meaning that sense which the people conversant with the subject-matter with which the statute is dealing with, would attribute to it. As regards the test of degree of durability the petitioner submitted before the Commissioner that it was solely dependent on yearly depreciation. It submitted that the diesel engine converts chemical energy to mechanical energy and the diesel generator converts mechanical energy to electrical energy. The Commissioner did not accept this function with observation that the petitioner having been an importer-cum-trader was not competent to speak all these. The Commissioner considered the decisions of the honourable courts in the cases of Corporation of Calcutta v. Chairman of the Cossipore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cates legislative intention to restrict the meaning of plant and machinery under serial No. 54B within the items specified thereunder. Under this serial No. all the specified goods are machines used in production activity, construction work, cooling towers and earth moving activity. Most of the machineries are used in production and some are used for other purpose. But all are used in commercial activities. So items Nos. (xxviii) and (xxix) should have connection with commercial activities. We have to examine whether diesel engine and diesel generator set should fall under item No. (xxviii) of serial No. 54B, i.e., whether these are machineries. As per the Interpretation of Sales Tax Commodities, Second Edition by M.C. Agarwal and Vijoy Agarwal at pages 127, 146, 179 and 243 the meanings of diesel engine generator and machinery are as follows: (i) A diesel engine is defined as an internal combustion engine so constructed that the air supplied for combustion is compressed within the engine cylinder to the point whether its temperature is sufficient to ignite the injected fuel spontaneously. (ii) A generator is defined as apparatus for turning mechanical energy into ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are parts components and accessories thereof appearing in item No. 205 of the Schedule IV to the WBST Act, 1994 held that diesel engine and generator set are separate from machineries items in common parlance. The trader had no occasion to dispute this because these did not adversely affect them. We cannot expect that for academic interest the traders could take the pains of disputing this. This reason is therefore not proper. In the impugned order the Commissioner mentioned that the petitioner submitted before him that provisional certificates issued to various manufacturing units do mention diesel engine and diesel engine generator set as plant and machinery and this view has been taken by the Department over a long period and there exists no valid reason to justify any deviation therefrom. The learned Commissioner did not make any observation on this claim of the petitioner. The petitioner's assertion as aforesaid was therefore deemed to have been accepted by the Commissioner. So, it is highly probable that the people connected with the commercial activity treat the diesel engine and generator set used in the commercial activity, as machinery falling under item No. (xxvii) o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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