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TMI Blog2009 (5) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... e taxed as unclassified goods? B. Whether the question of classification of the goods can be decided without even considering the certificates issued by the persons dealing with them, i.e., as per the trade understanding, commercial and technical practice and usage in view of the honourable apex court judgment in the cases of Indcon Structurals (P) Ltd. v. Commissioner of Central Excise [2006] 6 RC 450; [2006] 4 SCC 786 and Stefab (I) Ltd. v. Commissioner of Central Excise, Delhi. C. Whether the Tribunal was legally justified in not considering the certificates issued by the various institutes such as National Institute of Immunology, National Institute of Communicable Diseases, International Centre for Genetic Engineering and Bio-Technology, W.H.O., etc., which are either controlled by the Government or they are of world repute only on the ground that they are the customers of the applicant? D. Whether the Tribunal was legally justified in holding that the goods manufactured by the applicant can be called 'biological instruments' but the same cannot be treated as 'biology instruments' in view of the fact that the term 'biological' means nothing but something relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ip firm, which is engaged in the manufacture and sales of various "scientific and biological equipments/instruments", which are used mainly by bioscientists for research purposes, for which the revisionist-assessee is duly registered under the provisions of the U.P. Trade Tax Act as well as the Central Sales Tax Act. The revisionist-assessee was issued a notice by the assessing authority and the assessee appeared before the assessing authority and claimed that the goods sold by it were exempt from tax in view of Notification No. 1166 dated April 10, 2000 and also claimed relief on account of inter-State sales made to various Government organizations and institutions against forms IIID and D. The assessing authority, after examining the accounts and details, issued a show-cause notice to the assessee proposing to make best judgment assessment on the basis of an inference that the assessee had effected sales at concessional rate of tax to various organizations against the declaration of form IIID and form D even though the said organizations were not the Government organizations and no benefits of concessional rate of tax could have been claimed by the revisionist-assessee. The as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee holding that the goods sold by the assessee are not covered by the Notification No. 1166 dated April 10, 2000 and has held that the goods manufactured by the assessee are liable to be taxed as unclassified goods and the claim of the concessional rate of tax on sale to various Government organization/institutions has also been disallowed by the Tribunal. The Tribunal has recorded a finding of fact that the goods manufactured by the assessee are firstly not used by the students; secondly it has recorded a finding of fact that there is vast difference between the "biology instruments" and "biological instruments"; and thirdly the goods manufactured by the assessee are "biological instruments", which are not covered under the Notification No. 1166 dated April 10, 2000. The learned counsel for the assessee has argued that the order passed by the Tribunal and the findings recorded by the Tribunal are bad, illegal and not justified. His argument is that the Tribunal has failed to appreciate the facts of the case as well as the settled law regarding the classification of the goods and therefore the same is liable to be set aside. Sri S.D. Singh, learned counsel for the assessee, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. They would not be covered under the Notification No. 1166 dated April 10, 2000 because they are not biology instruments. He has argued that this is a misconception, which has been made by the Tribunal because the word "biological" means nothing but something which is related to biology and the word "biology" means nothing but scientific study of living organisms. In fact he has argued that the words "biology" and "biological" are not different from each other and are inter-changeable. He has referred to definitions of the word "biology" and "biological" in various dictionaries, which are as under: Sl. No. Dictionary Meaning of words 1. Concise Oxford English Dictionary, Eleventh Edition Biology-(i) the scientific study of living organisms; (ii) the plants and animals of the particular area; (iii) the features of a particular organism or class of organisms. Biological-(i) relating to biology or living organisms. 2. Oxford Advanced Learner's Encyclopedic Dictionary Biology-(i) scientific study of the life and structure of plants and animals; Biological-(i) of relating to biology; (ii) a biological experiment, reaction biological soap-powders, i.e., ones that cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strument boxes, educational globes and instruments, such as instruments used in mechanical drawing and biology, used by students." He has argued that the above noted notification dated May 20, 1976 includes in it words "used by the students" but these words have been dropped and have not been retained in the notification under consideration dated April 10, 2000 and therefore the intention of the Legislature was clear to extend the benefit of the notification to all who are assessees under the purview of the U.P. Trade Tax Act and not to confine it to "school students" as is being interpreted by the Tribunal. The learned counsel for the assessee has also argued that while coming to the conclusion that the goods manufactured by the assessee are unclassified instruments, the Tribunal has also failed to consider or interpret in the proper perspective the entry as made in the notification which includes not only "biological instruments" but also "scientific instruments". The next argument of the learned counsel for the assessee is that the Tribunal has also failed to take into account the various certificates that were issued by the competent institutions and organizations, which wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (All); [1995] UPTC 1326 and in the case of Commissioner of Sales Tax v. Super Tank India reported in [2004] UPTC 711. The learned counsel for the assessee, in support of his argument that goods in question are "biological instruments" or "scientific instruments", while taking into consideration the common parlance test has also relied on a judgment in the case of DCL Polyester Ltd. v. Collector of Central Excise & Customs reported in [2005] 4 RC 412; [2005] 3 SCC 455 and Collector of Central Excise v. Krishna Carbon Paper Co. reported in [1989] 72 STC 280 (SC); [1989] 1 SCC 150. The learned counsel for the assessee has argued that in case there is doubt or ambiguity in the language of the English publication of the notification, it may be resolved in favour of the assessee. He has relied on in the case of Mata Badal Pandey v. Board of Revenue, U.P. reported in [1974] UPTC 570 and Commissioner of Trade Tax v. Associated Distributors Ltd. reported in [2008] 15 VST 39 (SC); [2008] 7 SCC 409. In reply to the arguments as raised by the learned counsel for the assessee, learned standing counsel has argued that while construing a fiscal entry, strict construction of words must be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gued, they can be no estoppel against the law and the assessee cannot be barred even at later stage from claiming the benefit. For this purpose, the learned counsel for the assessee has relied on the case of Share Medical Care v. Union of India reported in [2007] 8 RC 382; [2007] 4 SCC 573. I have heard learned counsel for both sides at length and have perused the material on record as well as the order passed by the Tribunal. The Tribunal has recorded a finding of fact that the assessee is manufacturing "biological instruments". Upon examination of the matter, it is clear that "biology" is the science, which studies all life sciences and living organisms. A biological instrument is instrument, which is used for the study of these life sciences. Whereas previously the Notification No. ST-II2957/X-6 (17)-76 dated May 20, 1976 confined the entry of words "used by students", entry made in the Notification No. 1166 dated April 10, 2000 does not confine it to "used by students". Therefore the opinion of the Tribunal with regard to this is clearly erroneous. In view of the above, I am of the opinion that the intention of the Legislature so far as it relates to the words used in both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 20, 1976 and the second notification dated April 10, 2000 it comes to light that while the first notification was confined for the use of students and did not include "scientific instruments", the second notification, i.e., the notification dated April 10, 2000 has extended the entry to scientific instruments also and has deleted the words for students. Therefore it comes to mind that if at all it was the intention of the Legislature to confine the benefit of the exemption to students by the first notification, the restriction has been removed in the second notification and in fact "scientific instruments" have been included. The other thing, which comes to light is that even in the first notification the words used are for students. The word "student" is wide in sense, it includes students at all stages and at levels right from primary schools to research students. The interpretation as given by the Tribunal that it confines to students, is a limitation imposed by the Tribunal. To my mind the very purpose of giving an exemption to apparatus and instruments used for educational and research purpose is to give impetus to education and to advance learning. When the words used by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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