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TMI Blog2014 (6) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... tax imposed upon sale of Gutkha in the case in hand treating it to be 'unclassified item' and imposing tax at the rate of 10% is absolutely valid and correct. - Decided in favor of revenue. Sale of used generator in running condition - whether to be construed as old discarded and unserviceable machinery - held that:- Words "discarded, unserviceable, obsolete" should be read ejusdem generis with the word "old" so as to apply aforesaid notification to such machineries which are virtually unusable, unworkable or unfunctional. However, I do not find any reason to read all these terms ejusdem generis since all these terms have a distinct meaning. Moreover, use of the word "or" between "unserviceable" and "obsolete" clearly shows intention of State that all these words have been used to cover different situations. If an old machinery is sold even if it is in running and usable condition, in my view, it would be covered by entry 29. Therefore, question D is answered in favour of Revenue by holding that sale of generator is covered by entry 29 of notification dated 15.1.2000 as amended by notification dated 17.02.2000 w.e.f. 17.1.2000 - Decided in favor of revenue. Rate of tax on sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came to Rs.16,500/- and accordingly passed order dated 28.02.2004. There are some other items also with which this matter has no concerned. 4. Disputing imposition of tax on sale of 'Gutkha' and old generator, revisionist-assessee preferred appeal No.122 of 2004. The Joint Commissioner (Appeal)-4, Trade Tax, Agra upheld the view taken by Assessing Authority that 10% tax was leviable on sale of 'Gutkha' treating it as 'unclassified item'. However, in respect of tax liability on sale of generator, appellate authority held that instead of treating it as unclassified item, it was taxable in the category of machinery and therefore, 8% tax is leviable. Accordingly, it granted relief to the extent of 2% in tax rate on the sale of generator. In the total disputed tax liability, relief of Rs.3,300/- was given to assessee. Dissatisfied with this judgment, assessee took up the matter to Tribunal in Second Appeal No.473/2004 but here also lost as Tribunal has rejected appeal vide judgment dated 15.10.2004 giving rise to the present revision. 5. The questions of law, which have arisen in this revision are: A. Whether in view of the decision of Supreme Court in K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a' does not appear to be one and the same. Be that as it may, in the case of Andhra Pradesh, entry in the provincial statute was pan masala including gutkha . The Court then referred to entries in Chapter 2404 of Additional Duties of Excise (Goods of Special Importance) Act, 1957, wherein the words other manufactured tobacco also include word gudaku and it was found that 'gutka' is a tobacco and was referred as 'gudaku' in that entry. The term 'gudaku' and 'gutka', were held synonymous since the contents thereof were found same. But it is not correct for all times to come. The reason being that there is a term 'gudakhu', which came to be considered before Apex Court in State of Orissa Vs. Radheshyam Gudakhu Factory, 1987 UPTC 1480. The Court has noticed findings of High Court there to the effect that 'gudakhu' was a form of smoking tobacco and it is also used as a paste for cleansing the gums of the teeth. The Court also refers to Calcutta High Court decision in Gulabchand Harekchand Vs. State of West Bengal, (1985) 59 STC 224, it was held that gudakhu is manufactured out of tobacco and that its essential character is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o plant and all products of tobacco, but including any part of a tobacco plant while still attached to earth. 12. By notification no. Ka.San.Vi.-2-1947/Gyarah-9(7)/97-U.P.Adhi.-15-48-Adesh-97 dated 26.6.1997, which was published in gazette on 1.7.1997, the aforesaid entry 14 was substituted as under:- 13. It excluded, therefore, specifically tobacco containing Pan Masala , with whatever name it is known. 14. Another amendment was made by notification no.T.I.F.-2-595/XI-9(4)/99-U.P. Act-15-48-Order-98 dated 6.4.1999 published in Gazette dated 10.4.1999 and entry 14 was substituted as under: In exercise of the powers under clause (a) of section 4 of the Uttar Pradesh Sales Tax Act, 1948 (UP Act No.XV of 1948), read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (UP Act No.1 of 1904), the Governor is pleased to make, with effect from the date of publication of this notification in Gazette, the following amendment in Government Notification No. ST-II-7038/X-7 (23/83-U.P. Act-XV-48-Order-85, dated January 31, 1985 (Sno. 4) as amended from time to time : Amendment In the Schedule to the aforesaid notification fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Third Schedule, Part II, and came on the statute-book, read as under: Heading No. Sub-heading No. Description of goods 24.01 24.02 24.03 24.04 2401.10 2401.90 2402.00 2403.11 2403.12 2403.13 2403.14 2403.15 2403.19 2403.20 2403.31 2403.32 2404.10 2404.20 2404.31 2404.39 2404.41 2404.49 2404.50 2404.91 2404.99 UNMANUFACTURED TOBACCO; TOBACCO REFUSE - Not bearing a brand name -Other CIGARS AND CHEROOTS OF TOBACCO OR OF TOBACCO SUBSTITUTES CIGARETTES AND CIGARILLOS OF TOBACCO OR OF TOBACCO SUBSTITUTES - Cigarettes of tobacco : Other than filter cigarettes, of length not exceeding 60 millimetres Other than filter cigarettes, of length exceeding 60 millimetres but not exceeding 70 millimetres Filter cigarettes of length (including the length of the filter, the length of filter being 11 millimetres or its actual length, whichever is more) not exceeding 70 millimetres Filter cigarettes of length (including the length of the filter, the length of filter being 11 millimetres or its actual length, whichever is more) containing chewing tobacco; pan masala containing tobac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a dealer, who deals in the goods specified in the Fourth Schedule thereto, shall be exempt from tax thereunder in respect of such goods. Therefore, all the goods, which were specified in Fourth Schedule of the Andhra Pradesh State statute, levying tax on sales of goods in the State of Andhra Pradesh, were exempted from tax by virtue of a specific provision contained in that statute i.e. Section 8 of Andhra Pradesh General Sales Tax Act. There was an entry no.7 in Fourth Schedule of Andhra Pradesh statute, which mention the word tobacco . There was an explanation also therein, which says that goods mentioned in Entry 7 shall be goods included in the relevant heads and sub-heads of the First Schedule to the Additional Duties of Excise (Goods of Special Importance) Act, 1957, but does not include goods where no additional duties of excise are levied under that Schedule . The Court found that Additional Duties of Excise (Goods of Special Importance) Act, 1957, in Entry 2404, under sub-heading other manufactured tobacco refers to gudaku and was an entry contained therein. It is in this view of specific provision, contained in Andhra Pradesh Act, that, the Court held that Gutk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1956 provides that Sales Tax Law of State shall not impose tax on sale and purchase of declared goods exceeding 5%. Section 15 of CST Act, 1956, as it stood during relevant period of assessment, reads as under: Restrictions and conditions in regard to tax on sales or purchases of declared goods within a State- Every sales tax law of a State shall, insofar as it imposes or authorises the imposition of a tax on the sale or purchase of a tax on the sale or purchase of declared goods, be subject to the following Restrictions and conditions, namely:- (a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed 8[five per cent.] of the sale or purchase price thereof and such tax shall not be levied at more than one stage, 28. Learned counsel for the revisionist has tried to rely on decision of Apex Court in Kothari Products Ltd. (supra), but it is evident that entries of statute, as were up for consideration therein are not the same, as would be applicable in the case in hand. Since period of assessment in dispute is 2001-02, therefore, this Court has to look into various entries, as existed in various statutes at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be liable to tax at the point of sale specified in column 3 of said List at the rate specified against each in column 4 thereof: Serial Number Description of goods Points of tax Rate of tax percentage 29 Old, discarded, unserviceable or obsolete machinery, stores or vehicles including waste products, except cinder, coal ash and such items as are included in any other notification issued under the Act. Sale to consumer 8% 32. It would also be brought on record that item 29 of notification dated 15.01.2000 has been amended by substitution w.e.f. 17.2.2000 vide notification no. KA.NI.-2-523/XI-9(231)/94-U.P.Act-15-48-Order-2000 dated 17.2.2000, published in Gazette dated 18.2.2000 and amended provision reads as under: WHEREAS, the State Government is satisfied that it is necessary so to do in public interest: NOW, THEREFORE, in exercise of the powers under clause (e) of sub-section (1) of section 3-A read with section 25 of the Uttar Pradesh Trade Tax Act, 1948 (U.P. Act No.15 of 1948), and section 21 of the Uttar Prades ..... X X X X Extracts X X X X X X X X Extracts X X X X
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