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TMI Blog2010 (6) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... tatements, copies of returns and challans, bank statements pertaining to the periods 2005-06, 2006-07 and 2007-08. It has been submitted in this petition that the petitioner duly complied with the said direction. Subsequently, the officers from the Bureau of Investigation visited the petitioner's place of business and seized some books of account and records on July 22, 2008 pertaining to the periods 2005-06, 2006-07, 2007-08 and 2008-09. During the course of examination of books of account which followed thereafter, it was opined by the officers of Bureau of Investigation that the items in question were exigible to tax at 12.5 per cent and hence was directed to pay the difference of tax. On compulsion, as claimed by the petitioner, Rs. 1,50,000 had to be paid by the petitioner in between August and September 2008. On November 24, 2008, the petitioner moved a petition under section 102 of the VAT Act before the Commissioner of Sales Tax, West Bengal, respondent No. 1, seeking clarification as to the appropriate rate of tax on the items in question being manufactured and sold by her. By an order dated March 4, 2009, respondent No. 1 opined that the items in question would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refers to the entry 54B(i) and (ii) which states that machinery for tea industry and machinery for food and food processing industries including flour mill would fall within the meaning of plant and machinery and exigible to tax at four per cent and not as an unspecified item attracting tax at 12.5 per cent. It is also contended by Smt. Bhattacharyya that the petitioner is an enlisted supplier of tea board under tea machinery and irrigation/equipment loan scheme. In support of the submission, she produces a certificate dated July 22, 1997 of the Tea Board. She refers to certificates from the dealers who are buying from the petitioner the items in question as part of tea machinery and used for tea manufacturing. The petitioner, as claimed by the learned advocate, is making sales to various dealers such as Goodrick Group Limited, Parucco Foundry Private Limited, Vikram India Limited, Jem Tea Machinery Private Limited of such items charging VAT at four per cent being sales of items covered by entry 54B(i) in Part I of Schedule C to the VAT Act. It is contended by the learned advocate that respondent No. 1 failed to appreciate that these items are used directly for the production p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... falling under entry 54B(i) of Schedule C to the VAT Act. Sri B Majumdar, learned State Representative appearing for the respondents, relies on the order passed by respondent No. 1 on March 4, 2009. It is submitted by him that the items in question are no doubt implements of an industrial unit but those are not machineries and are not used directly either in the production activity or in the construction work or as cooling towers or as art moving machineries. Moreover, central excise tariff, as referred to by the petitioner, does not conclusively prove that the items in question should be treated as items falling under entry 54B of Schedule C to the VAT Act. Chapter 84145930 deals not only with machineries as claimed by the petitioner but also deals with machineries, mechanical appliances and part thereof as a whole. In part of Schedule C to the VAT Act, there is no reference of any Central excise tariff code number and, therefore, these items need not be guided by the entries in Central excise tariff code. He places his reliance on a decision of this Tribunal in the case of Premier Diesel Pvt. Ltd. v. Commissioner of Sales Tax, Beliaghata, Kolkata [2009] 25 VST 195 (WBTT); [200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Sales Tax, Beliaghata, Kolkata [2009] 25 VST 195 (WBTT); [2008] 52 STA 270 respondent No. 1 came to the conclusion that the items in question are implements of industrial unit but not used directly either in production activity or in construction works or as cooling towers or as earth moving machinery . In that case the question before the Tribunal was whether diesel engines and generator sets would come within entry 54B(xxviii) of Part I of Schedule C to the VAT Act. The Tribunal held that the appropriate rate of tax on these items when used in commercial activities would be four per cent and when used exclusively for domestic purposes would be 12.5 per cent. While coming to the conclu sion, it observed that, . . . It indicates legislative intention to restrict the meaning of plant and machinery under serial No. 54B within the items specified thereunder. Under this serial number 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 activity and some are used for other purpose. . . It is, thus, apparent that machineries required for a particular ind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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