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TMI Blog2017 (5) TMI 1171X X X X Extracts X X X X X X X X Extracts X X X X ..... ne can take into consideration common parlance test, in my view as well, for stopping common leakage some other products will have to be purchased rather than the product which has been used/produced/sold by the assessee. The entry insofar as VAT Act under consideration is concerned, is limited and it is to be read as it is and cannot be enlarged as claimed by the counsel for the petitioner - the finding reached by the Tax Board is a finding of fact and no question of law can be said to arise out of the order of the Tax Board. Penalty u/s 65 of the act - Held that: - though it is a case of survey which may have resulted into some taxability @10% as against 4% claimed by the assessee but the fact remains that it is a case of classification a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng purposes and it is not in the nature of Cement nor in any way having any concern with Cement and its use was for the purposes of jointing etc. Accordingly, the Assessing Officer issued a show cause notice as according to him, the case of the petitioner was taxable @ 10% whereas the assessee paid treating the same payable @ 4% only. The assessee responded by filing reply, however, the same was not accepted by the Assessing Officer and not only differential rate of tax was levied but interest as well as penalty u/Sec.65 of the Act was also imposed. 4. The assessee preferred an appeal before the Dy. Commissioner (A), who however was satisfied that in the light of the judgment of the Maharashtra Sales Tax Tribunal, Mumbai in the case of The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be properly jointed and different methods of joining are recommended depending on the type of fittings. The methods of joining which are generally recommended are PPC Solvent jointing, flange jointing, rubber ring jointing, threaded jointing etc. and contended that the product falls within the definition of the said Notification where only rate of 4% is leviable rather than a rate of 10% being adopted by the Assessing Officer which is not leviable. Counsel also contended that it is a clear cut case where the judgment of Maharashtra Sales Tribunal, Mumbai (supra) is squarely applicable to the facts of the instant case. Counsel for the assessee contended that question of penalty does not arise as it is a case of classification, the Tax Boar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rashtra viz-a-viz in Rajasthan is entirely different and has no application/bearing insofar as the present RVAT Act is concerned. Counsel also contended that it is a clear cut case of evasion of tax and the Assessing Officer gathered information during the course of survey which resulted into the addition and had the survey not taken place possibly the assessee would have continued to pay the tax @ 4% and contended that it clearly falls within the definition of evasion and supported his petition by contending that the penalty deserves to be upheld. 8. I have considered the arguments advanced by the counsel for the parties and have perused the material available on record. In my view, the Tax Board has rightly found that the tax is leviable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omponents, parts and accessories of goods covered by subentry (1) and (2) above In excess of four per cent Nil 10. In Maharashtra as above the entry was "components, parts and accessories of goods covered by sub-entry (1) and (2) above and the said Tribunal specified that PVC solvent cement are part and parcel of pipe and fittings. The entry under consideration is "PVC Pipes, HDPE Pipes, Plastic Pipes, and Fittings thereof- 4%" The product under consideration is entirely different and quite distinguishable to what is under consideration and before Maharashtra Sales Tax Tribunal. 11. Taking into consideration the common parlance test as well which has been upheld by the Apex Court time and again that in a case of classification one can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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