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TMI Blog2016 (11) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... s and facial tissues. All along, the goods being manufactured by the appellant were being considered to be part falling in Entry 57 of Schedule 'C' of the Haryana Value Added Tax Act, 2003 (for short, 'the Act') leviable to tax @ 4%. The appellant filed application dated 19.11.2009 under Section 56(3) of the Act to the State Government for clarification, as to under which Entry the aforesaid goods being manufactured by the appellant would fall and the rate of tax leviable thereon. The Financial Commissioner and Principal Secretary to the Government of Haryana, Excise and Taxation Department, vide order dated 18.1.2010, opined that the goods being manufactured by the appellant were not forming part of Entry 57 of Schedule 'C' of the Act, hence, would be taxable @ 12.5%, being unclassified goods. The order was challenged before the Tribunal. The Tribunal, vide order dated 29.7.2011, dismissed the appeal. The order is under challenge before this court. 3. Learned counsel for the appellant submitted that firstly the Financial Commissioner and Principal Secretary to Government of Haryana, Excise & Taxation Department had gone wrong in observing that the end use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reliance was also placed upon the judgment of Bombay High Court in Commissioner of Sales Tax v. Agarwal & Co., 1983 (12) ELT 116 (Bom.), where skimmed milk powder was held to be falling in the Entry providing for "milk whole of separated or reconstituted." It was given purposive interpretation. Judgment of Hon'ble the Supreme Court in Standard Pencils (P) Ltd. v. Collr. of C. Ex., Madras, 2002 (145) ELT 278 (SC) was relied upon where pencil form of 'Kum Kum' was held to be falling in the Entry mentioning 'Kum Kum'. It was not held to be limited to 'Kum Kum' in powder, liquid or sticker form. Reference was also made to judgment of Hon'ble the Supreme Court in Porritts & Spencer (Asia) Ltd. v. State of Haryana, (1978) 42 STC 433 (SC), where dryer felts were held to be textile. In support of the plea that end use is not relevant, reference was made to the judgment of Hon'ble the Supreme Court in Dunlop India Ltd. & Madras Rubber Factory Ltd. v. Union of India and others, 1983 (13) ELT 1566 (SC) and Division Bench judgment of this court Goyal Motor Parts v. State of Punjab and another, (2011) 38 VST 159. 5. It was further submitted that if the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in different Schedule, their use is always considered. It is on that basis only the rates of tax are determined. Reply by the appellant 7. In response, learned counsel for the appellant submitted that none of the judgments sought to be referred to by learned counsel for the State is relevant. Much water has flown ever since the matter was decided by Hon'ble the Supreme Court in M/s Kores (India) Ltd.'s case (supra), where the assessment year involved was 1956-57. With the change in technology, how the paper is now understood, and its multiple uses has undergone a dramatic change, otherwise the issue therein was whether carbon paper was 'paper' or not. The words used by Hon'ble the Supreme Court in the judgment are not to be read as a statute, once the uses to which 'paper' can be put to have not been mentioned in the Entry. In M/s Raman Boards Ltd.'s case (supra), the goods under consideration before the court were 'paper products' and not 'paper' as such, hence distinguishable. 8. Heard learned counsel for the parties and perused the paper book. Discussion 9. Though at the time of admission, this court had framed the issue, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods may be put to different uses by different persons. That cannot entitle the revenue to apply different rules of tax to the sales of the very same product by different dealers depending on the use to which they will be put by the purchasers. The particular use to which an article can be applied in the hands of a special consumer is not determinative of the nature of the goods. 13. In Commnr. of Central Excise, Cochin v. M/s Mannampalakkal Rubber Latex Works, 2007 (217) ELT 161, Hon'ble the Supreme Court opining on an Entry under the Central Excise Tariff Act, 1985, opined that there are two types of tests - one is test of 'composition' and one is test of 'end-user'. Generally in matters of classification, 'composition test' is an important test and 'end-user test' would apply only if the Entry says so. 14. The aforesaid judgment was cited with approval in latest judgment of Hon'ble the Supreme Court in Civil Appeal No. 2650 of 2016-- Commissioner of Commercial Tax, U. P. v. M/s A. R.Thermosets (Pvt.) Ltd., decided on 6.9.2016. 15. In M/s Kores (India) Ltd.'s case (supra), the assessment year involved in the judgment was 1956-57. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to paper napkin. The assessee claimed that it was covered under Entry at Sr. No. 125, whereas the department claimed that it was covered under Entry at Sr. No. 65. Both the entries read as under: "Sl. No. 65.- Toilet articles except toilet soaps and such other toilet articles as may be specified by the State Government by Notification in the Official Gazette. xx xx xx Sl. No. 125.- All kinds of paper including arbon paper, blotting paper, water proof paper, PVC coated paper, ferro paper, ammonia paper, stencil paper but excluding paper falling under serial number 55, pulp boards, art boards, duplex boards, triple boards, card boards, corrugated boards, and the like, cellophane." 18. 'Paper napkin' was found to be covered under Entry at Sr. No. 55 containing toilet articles. Reference was made to judgment of Hon'ble the Supreme Court in M/s Kores (India) Ltd.'s case (supra). It was a case of two competing entries for classification. 19. In Cochin Cadalas (P) Ltd.'s case (supra), the issue under consideration before Kerala High Court was as to whether 'craft paper' was paper falling in Entry 94(i) or will be covered under Entry 94(ii) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s bitumen emulsion is in liquid form. Bitumen emulsion is a processed bitumen. It comes into existence when bitumen is treated with emulsifiers and other chemicals to attain a liquid form. The stand taken by the revenue was that the word "bitumen" should be given narrow meaning for the reason that the Legislature has not thought it appropriate to use the prefix or suffix like "all", in all forms or of all kinds. Bitumen used in the entry is in generic form. It would be erroneous not to cover a product, which is only a type or form of bitumen and retains all its essential characteristics. The contention was rejected as the entry did not suggest as to what it is included or excluded. Bitumen emulsion was opined to be part of the entry containing 'bitumen', as it was found to be only one of the varieties of bitumen. The revenue's stand that residuary entry should be invoked for taxing bitumen emulsion was rejected, relying upon the principle that 'specific entry would override a general entry'. Reference was made to Collector of Central Excise, Shillong v. Wood Craft Products Ltd., (1995) 3 SCC 454 to opine that resort can be made to a residuary heading when by lib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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