9911796707
TMI Blog2017 (10) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... be new material and evidence which may justify or warrant a change in stance. Revision allowed - decided in favor of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... coal dust was liable to be treated and classified under the entry relating to coal and that it was distinct and different from coal ash. He submitted that on a plain reading of the observations made in British India Corporation it is clear that the residual commodity described by the Tribunal as "coal dust" was not liable to be treated as an unclassified item. Sri Agrawal then drew the attention of the Court to the decision in Modi Spinning to submit that in the said decision the issue which essentially arose for consideration was whether "coal cinder" would be liable to be treated as an unclassified item. It was his submission that the said decision could not have been read as determinative of the issue which arose before the Tribunal. Elaborating upon his above submission, Sri Agrawal then invited the attention of the Court to the decision of a learned Single Judge in Mahabir Singh Ram Babu Vs. Assistant Sales Tax Officer 1962 (XIII) STC 248 to submit that all subsequent decisions have proceeded to decide the issue based upon the principles enunciated in this judgment. This decision, Sri Agrawal points out, was dealing with the commodity "cinder" an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic characteristics of the residual commodity. In his submission, the decisions rendered by the authorities represented in the instant revisions clearly establish that the authorities have chosen to describe the residual article in different terms. He submits that if the article which the assessee is stated to sell be coal ash or cinder, the decisions in Modi Spinning and British India Corporation would clearly apply and in view thereof the decision of the respondents to tax the article at the rate of 10% cannot be faulted. The primary decision on which subsequent proceedings appear to be based is the one rendered by a learned Single Judge in Mahabir Singh Ram Babu. As noted herein above, the learned Single Judge in that decision proceeded to base his conclusions on the ground that coal was a mineral which was extracted from earth while all other articles including cinder or ash were not. The learned Single Judge in the said decision while considering the question as to whether cinder would be liable to be treated as coal proceeded to note that where all combustible properties of coal are spent away and lost, the residual product could not be classified or placed in the same compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot;........Where all the combustible property of coal has not completely escaped into the atmosphere, the residue, which may still be capable of combustion and which may serve many of the purposes which are served by burning coal, is not coal, but cinder. It was also held that when the Legislature used the word coal" in the notification, it was using that word in the sense in which it is, strictly speaking, used and understood in the English language. It will be seen that "coal" is not a word of art. It is not a scientific terra. It is a popularly known commodity. It has not been found by the authorities below that in the commercial world, coal dust has different uses or is popularly known as a commodity different from coal. Coal dust is also the mineral known as coal, but in a different shape. The various particles have been reduced by friction or use to a very small size so as to render coal into dust. Coal is not treated or processed in order to produce coal dust. It has come in the affidavits that coal dust is sold for burning bricks just as coal is used for such a purpose. It is clear that coal dust has the same combustible property as coal has. It is used for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tood to being restricted to apply to the commodity considered therein. As noted above, insofar as "coal dust" is concerned, the issue already stands answered in favour of the revisionist assessee in both British India Corporation as well as the binding verdict of the Division Bench in District Cooperative Development Federation. The submission of Sri Pandey that the authorities below have chosen to describe the residual commodity in different terms really does not impress this Court inasmuch as the Tribunal in the last Assessment Year has in unambiguous terms noticed and held the commodity to be "coal dust". Additionally, this Court notes that the Department does not rest its decision on any evidence which may have established that the residual commodity had lost all its combustible properties. It is pertinent to note that it was the Department which was proceeding to reject the stand taken by the assessee that coal dust was not liable to be taxed at the rate of 4%. It was their contention that the commodity in question was liable to be taxed under the residuary entry. If that be the case, the onus clearly was not on the assessee alone. The Court must also not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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