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TMI Blog2011 (7) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... the mobile squad, Commercial Tax at Chandauli on April 20, 2011 on the ground that there was no import declaration form XXXVIII along with the goods. A show-cause notice dated May 20, 2011 was issued, in reply to which, the revisionist submitted that no import declaration form is required as "agarbatti" is exempt vide entry 41 of the First Schedule to the Act read with section 7(b) of the Act. Thereafter, a seizure order was passed on April 21, 2011. Petitioner's representation against the same under section 48(7) of the Act was rejected on April 25, 2011. The appeal of the petitioner to the Tribunal was also dismissed on April 28, 2011 and the seizure was affirmed. The revisionist in the aforesaid circumstances filed the present revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his is how the revision has again been placed before me. The only question of law now required to be answered in this revision is whether the goods seized are actually "agarbatti" and exempt from taxation under the Act and as such require no import declaration form rendering the seizure invalid. Section 50 of the Act provides that any person who intends to bring, import or otherwise receive, into the State from any place outside the State any goods other than the goods named and described in the First Schedule in connection with business, shall obtain a prescribed form of declaration from the assessing authority having jurisdiction over the area. In other words, such declaration form is required only for importing those goods which are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clopedia describes "incense" as mixture of aromatic gums and spices, giving of a sweet odour when burned. The World Book Encyclopedia also describes "incense" as mixture of sweet smelling gums and balsams which on burning gives a delicate fragrance. Incense are usually in powder form or in sticks. The Webster's New Collegiate Dictionary describes "incense" to mean a material used to produce fragrance odour when burned. In short, material which on burning gives fragrance is incense (agarbatti). Therefore, any substance in some form which on burning gives a sweet odour is an "incense". It is therefore to be examined whether the consignment of goods seized contains material which on burning gives fragrance or is otherwise scented so as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re chemically tested so as to give a clear picture as to whether they are scented or not. There is no material also to the effect that the said sticks were burned and on burning they have not emitted any sweet smell or fragrance. When none of the aforesaid two tests have been applied, on bare physical examination that too without applying the test of smelling it cannot be said that the said sticks were unscented or were not likely to emit any sweet smell on burning. In such circumstances, the Department fell in error in holding the seized material not to be "agarbatti". Once the Department failed to prove that there was no smell or fragrance likely to be emitted on burning, the material which was in the shape of incense sticks, could not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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