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TMI Blog2015 (8) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhaichand v/s Commissioner of Sales Tax, Maharashtra State reported in 1996 Vol.101 Sales Tax Cases 218 (Bom.), the Tribunal was justified in law in allowing the Appellant to raise the additional ground regarding the assessment in Second Appeal when the Appellant had not challenged the assessment in first appeal and especially when the subject matter of appeal before the first Appellate Authority was penalty under Section 36(2)(c) of the Bombay Sales Tax Act, 1959 and not the assessments? 2 The Respondent/ M/s Jalani Tools (India) Limited had filed the Second Appeals for different periods under the Bombay Sales Tax Act, 1959 before the Maharashtra Sales Tax Tribunal. All these Appeals were preferred against various penalties and interest. However, the Assessee filed five Miscellaneous Applications seeking permission of the Tribunal to allow it to raise an additional ground regarding the rate of tax on sale of "handtools" manufactured by it. According to the Assessee, the impugned goods were declared goods inviting rate of tax at 4%. However, the Assessing Officer levied the sales tax at 10% on the same. In raising this additional ground, reliance was placed upon a judgment of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er a detailed discussion with regard to the facts and law applied, the Tribunal has referred the above questions. They are subject matter of Reference Application Nos.74 to 78 of 1997 and they are filed in Second Appeal Nos.685 to 889 of 1995 decided on 30.08.1997. 6 We are only concerned with these questions. 7 Mr.S.K.Nair, learned "A" Panel Counsel appearing in support of this Reference Application, submitted that with effect from 01.07.1981 the Entry 6 in ScheduleB appended to the Bombay Sales Tax Act, 1959 included subentry (ix) as follows: "(ix) tool, alloy and special steels of any of the above categories." 8 Mr.Nair submits that the Tribunal in the case of predecessor in title of the Assessee, namely, M/s Gedore Tools (P) Limited held that "hand tools" are not declared goods and are covered by residuary Entry E22 at the relevant time. This was for the assessment period 01.07.1979 to 30.06.1980. Mr.Nair submits that the assessment order was passed on 27.01.1992 by the Assistant Commissioner of Sales Tax, Mumbai 400010 for the period 01.01.1988 to 31.03.1989 whereby he taxed the sale of tools at Rs. 3,06,07,309/at the rate of 10% and levied the tax at Rs. 30,60,731/. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue was taken by surprise by such applications being made and allowed. Reliance placed by the Tribunal, in permitting the additional grounds to be raised, on the judgment of this Court in the case of Ranchhoddas Bhaichand v/s Commissioner of Sales Tax (supra) is entirely misplaced. Mr.Nair submits that in that case the Assessing Officer had passed a composite order containing the assessment of tax, as also, levy of penalty/ interest. In the Appeal filed against this composite order the challenge was to the penalty/ interest. However, later the Assessee filed Miscellaneous application seeking permission to raise the additional ground relating to assessment of tax. The first Appellate Authority treated this application as a separate appeal against the assessment of tax and dismissed it as being barred by limitation. According to Mr.Nair, these are distinguishing features from the case of Ranchhoddas Bhaichand v/s Commissioner of Sales Tax (supra) wherein this Court found that firstly there was composite order against which the appeal was filed and secondly, before the first Appellate Authority the application was made to raise an additional ground which was treated as a separate ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r's Third New International Dictionary at page 2409. He also made reference to the definition of the term "alloy steel". Mr.Nair placed reliance on the Government of India, Ministry of Finance (Department of Revenue & Insurance) Circular No.24/20/75ST regarding the scope of definition of the terms "iron and steel" as given under Section 14(iv) of the Central Sales Tax Act, 1956 as amended by the Act of 1972. Reliance is then placed by Mr.Nair on the judgment of the Honourable Supreme Court in the case of Bengal Iron Corporation v/s Commercial Tax Officer reported in AIR 1993 SC 2414. He also placed reliance upon a further judgment of the Honourable Supreme Court in the case of Vasantham Foundry v/s Union of India reported in AIR 1995 SC 2400. Finally, Mr.Nair places reliance on the judgment of the Honourable Supreme Court in the case of Bansal Wire Industries Limited v/s State of Uttar Pradesh reported in (2011) 6 SCC 545. All this is an attempt to demonstrate that the order passed by this Court in Sales Tax Reference No.2/2003 (Commissioner of Sales Tax, State of Maharashtra v/s M/s Raymond Limited) decided on 28.08.2009 will not decide the fate of the present Reference. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Mr.Joshi would submit that the Reference be answered in favour of the Assessee and against the Revenue. 15 With the able assistance of both counsel we have perused the Reference and all annexures thereto. The Entry as originally appearing in the Gazette reads thus:` "(iv) Iron and steel that is to say, - (ix) tool, alloy and special steels of any of the above categories." 16 Thus, iron and steel is the main descriptive part. Thereafter, the Legislature clarifies as to what would fall within the Entry Iron and Steel and says that is to say from items (i) to (viii), namely, pig iron and cast iron including ingot moulds bottom plates, iron scrap, cast iron scrap, runner scrap and iron skull scrap; steel semis; skelp bars, tin bars, sheet bars, hoebars, sleeper bars; steel bars; steel structurals; sheets, hoops, strips and skelp; plates; discs, rings, forgings, steel castings; and then tool, alloy and special steels of any of the above categories. In Raymond Limited (supra) almost identical question fell for consideration of this Court and at the instance of the Revenue. Though this Court had no benefit of any argument on behalf of the Assessee, but the Reference made at the insta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t several vital aspects of the matter nor did he advance complete submissions and arguments. 18 The attempt of the Revenue in this case is to get over this order by pointing out that it is not binding on us as several aspects were not noted and duly considered in it nor this Court had the benefit of complete arguments and submissions. 19 We are afraid that the Revenue persists in such attempts and as noted repeatedly. The Honourable Supreme Court in the case reported in AIR 2005 SC 752 (Central Board of Dawoodi Bohra Community v/s State of Maharashtra) reiterated the principle of binding precedents in the following terms:" 7. ...... Per incuriam means of decision rendered by ignorance of a previous binding decision such as a decision of its own or of a Court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. A ruling making a specific reference to an earlier binding precedent may or may not be correct but cannot be said to be per incuriam. ......." 20 Thus, unless it is demonstrated that the decision of a coordinate Bench is per incuriam, we cannot refuse to follow it. More so, when same point or issue involved i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at was on the question whether the Tribunal was right in holding that the tools i.e. screwdrivers, saws, pickaxes, etc. are covered by the expression "tool" occurring in item (ix) of clause (iv) of Section 14 of the Central Sales Tax Act, 1956 and should be, therefore, exigible to tax at 4% being covered by Entry1 of Part I of Schedule II of the Madhya Pradesh General Sales Tax Act, 1958. The facts have been noted in paragraph 2 and the arguments in paragraphs 3 and 4. The Madhya Pradesh High Court, thereafter, held as under:" 5. Screwdrivers, etc., cannot be said to acquire different commercial identity and are thus, not liable to be put in the category other than "tools". In Civil Appeal Nos.2025 and 2026, 2873 to 2875 and 1537 of 1986 (Gujarat Steel Tubes Ltd. v. State of Kerala [1989] 74 STC 176), the apex Court held that galvanished tubes are steel tubes within the meaning of section 14(iv) (xi) of the Central Sales Tax Act, 1956. Similarly, the articles, partcularised in the question referred to us, are tools, and not hardware or anything else, within the meaning of section 14(iv)(ix) of the Act. The Tribunal has thus, not erred in law. The view taken by the Tribunal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner in the case of Deccan Engineers (judgment rendered by the Division Bench of Andhra Pradesh High Court in Deccan Engineers v/s State of A.P. reported in 84 STC 92) are "cast iron" in Entry (2)(i) of the Third Schedule to the Andhra Pradesh General Sales Tax Act or Section 14(iv)(i) of the Central Sales Tax Act. Thus, the Entry which fell for determination and consideration of the Honourable Supreme Court is distinct. The Honourable Supreme Court held that the cast iron is different from cast iron castings manufactured by Bengal Iron Corporation. Though Mr.Nair would read some paragraphs of the judgment of the Honourable Supreme Court, but what we find and essentially is that the controversy was not identical to one before us. Secondly, the cast iron castings manufactured in that case was held not to be falling within the expression "cast iron". None can dispute or quarrel with the principle of interpretation and which has been laid down in this decision, but what matters is application of the said principle and to the facts and circumstances of each case. 25 Similar is the case of Vasantham Foundry (supra). There, the basic raw materials for producing cast iron are p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find is that applying the very principles one cannot reach a different conclusion and as desired by Mr.Nair. 28 Similar would be the position about the reliance placed by Mr.Nair on the judgment in the case of Bansal Wire Industries Limited (supra). In fact very paragraphs which have been extensively read by Mr.Nair before us, namely, paragraphs 16, 17, 18, 20, 22 to 31 would show that the Honourable Supreme Court was not considering an identical controversy, but whether the "stainless steel wire" would fall under the category "tools, alloy and special steels of any of the above categories" as enumerated in Entry (ix) of clause (iv) or under Entry (xv) of the same clause (iv)?. It reached the conclusion that the stainless steel wire is not so covered and in reiterating that conclusion it referred to the rule and principle of interpretation emerging from the decisions of the Honourable Supreme Court including in Pyare Lal Malhotra (supra). How a taxing statute or taxing provision will have to be read is too well settled and to require any reiteration and with reference to specific judgments. The application of the rule or application of principles of interpretation in each case is ..... 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