9911796707
TMI Blog2018 (1) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... ted exemption, in the original assessment order and exemption already granted on this turnover was revoked by the Assessing Officer, for the reason that the item of toner cartridges and ink cartridges were not eligible for exemption from resale tax, as per G.O.Ms.No.82 dated 01.07.2002. 2.2. Aggrieved by this order, the petitioner filed W.P.No.2229/2008 and M.P.No.1/2008 and vide order dated 28.01.2008, a direction was given to the Assessing Officer to consider the objections filed by the dealer dated 31.12.2007 and if requested, give a personal hearing and pass final order thereafter, within a period of 4 weeks from the date of receipt of the order. 2.3. In the re-assessment order dated 30.10.2009, the Assessing Authority, after receipt of objections from the petitioner, revised the assessment on the turnover of Rs. 8,09,97,739/- taxable at 1% under section 3-H of the Tamil Nadu General Sales Tax Act, 1959 for the reason, the item toner cartridges and ink cartridges were held as computer consumables and the computer consumables mentioned in sub item(i) of item 18 are not covered, in the notification issued dated 01.07.2002. 2.4. Aggrieved by this order, the petitioner filed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state appeal, in respect of the disputed re-sale turnover of Rs. 8,09,97,739/- at 1% and there by restored the revisional order of the assessing authority. 3. Instant Tax Case Revision is raising on the following substantial questions of law:- "(iii) Whether the tribunal was justified in allowing a disputed turnover of Rs. 8,09,97,739/- when the Appellate Depute Commissioner had given his finding that "computer consumables including DAT tapes, print ribbon, printer cartridge taps and computer cleaning ink. There as no separate entries for computer consumables. Computer consumables are part and parcel of computer, without consumables cannot get print out and it cannot readable. The Madras High Court (Madurai Bench) has also held that the consumables are spares of computers" (iv) Whether the tribunal was justified in allowed a re-sale turnover of Rs. 8,09,97,739/- at 1% under Section 3H of TNGST Act 1959 without appraising the contents of G.O.Ms.No.82 CT (B2) dated 01.07.2002 and vide notification No.II(2)/CT/568(f-8)/2002 dated 01.07.2002?" 4. Inviting attention to a decision of the Hon'ble Division Bench of this Court in W.P.No.4042 of 2008, W.P.Nos.20301,20303 to 20310 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued show cause notice by the department claiming that monitors and printers were parts of computers and required to be included in the value of computers and if such value to be included, the assessee was not entitled to the benefit of an exemption notification. The Hon'ble Supreme Court held that monitors or printers were peripheral items, which may be required along with a computer and is not an essential part of the computer and its value cannot be included in the value of computer. The operative portion of the judgment reads as follows:- 4. It appears to us that a monitor or a printer is not an essential part of the computer. It is a peripheral item which may be required along with a computer. We are unable to accept the submission that by virtue of Chapter Note 5 to Chapter 84 a monitor or printer becomes an essential part of a computer. By virtue of this Chapter Note a monitor and/or a printer may also be classifiable under the same tariff heading. However, merely because the tariff entry may also include a monitor or printer would not lead to the conclusion that a monitor or printer is an essential part of a computer. All that this Chapter Note indicates is that not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Part B of First Schedule, we find that the term "consumables" has not been used in the VAT Act. Therefore, even if such term was used in the erstwhile TNGST Act, that can hardly be a reason to treat these cartridges as "consumables" under the VAT Act and resort to residuary entry No.69 of schedule C, which deals with any other goods not specified in any of the schedules. 37. It has to be seen as to whether the department is right in claiming that the cartridges are chargeable to tax at 14.5% under the residuary Entry No.69 of C. The Hon'ble Supreme Court in the case of Bharat Forge and Press Industries, (supra) considered the very question as to when the department can claim that goods are chargeable to duty as per a residuary entry. It was held that unless the department can establish that the goods in question can by no conceivable process of reasoning be brought under any of the tariff items then and then only they can resort to a residuary item. Therefore, in the instant case, the stand taken by the revenue that the rate of tax shall be as per the residuary Entry 69 is unacceptable. 38. It is the submission of the learned Additional Advocate General that serial No.68 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taxed under an Act have to be construed in the sense in which they are popularly understood by those who deal in them and who purchase and use them. 41. In Annapurna Carbon Industries Co., vs. State of A.P. [(1976) 37 STC 378] the question which arose for consideration is whether sales of arc-carbons known as cinema arc-carbons would fall under Entry No.4 of First Schedule of the A.P., General Sales Tax Act, which entry covered cinematographic equipment, including cameras, projectors and sound recording and reproducing equipment, lenses, film and parts and accessories required for use therewith. While answering the question in favour of the assessee, the Hon'ble Supreme Court held as follows:- We find that the term accessories is used in the schedule to describe goods which may have been manufactured for use as an aid or addition. A sense in which the word accessory is used is given in Webster's Third New International Dictionary as follows: An object or device that is not essential in itself but that adds to the beauty, convenience, or effectiveness of something else. Other meanings given there are: supplementary or secondary to something of greater or primar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
