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TMI Blog2014 (8) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, the case of the assessee is that this commodity is used as water reducing agent and as reaction accelerator for giving extra strength to the concrete after its use and as such this is chemical falling under Entry 29 of Part A of Schedule IInd to the Act. The assessing authority treated this commodity as Water Proofing Compound and Construction Chemical - there are no infirmity in the findings of facts recorded by the Tribunal. The applicants have not shown any perversity in the findings of fact recorded by the Tribunal. Under the circumstances the matter is concluded by findings of fact. The tribunal has rightly held that the aforesaid two products are liable to tax @ 4%. Revision dismissed. - SALES/TRADE TAX REVISION No. 457 of 2014, 459 of 2014, 461 of 2014, 462 of 2014 - - - Dated:- 28-8-2014 - HON'BLE SURYA PRAKASH KESARWANI, J. For the Appellant : S. C. For the Respondent : Ashok Kumar,Praveen Kumar ORDER 1. Heard Sri B.K. Pandey, learned Standing Counsel for the applicant and Sri Ashok Kumar, learned counsel for the respondents. 2. All these revisions arises out of the impugned common order of the Tribunal dated 6.2.2014 relating to A.Y. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f part A of schedule IInd to the Act is reproduced below :- 29. Chemicals including caustic soda, caustic potash, soda ash, bleaching powder, sodium bicarbonate, sodium hydro sulphate, sulphate of alumina, sodium nitrate, sodium acetate, sodium sulphate; acid slurry, trisodium phosphate, sodium tripoly phosphate, sodium silicate, sodium meta silicate, carboxymethyle cellulose, sodium sulphide, acetic acid, sodium bisulphite, oxalic acid, sodium thiosulphate, sodiumsulphite, sodium alginate, benzene citric acid, diethylene glycol, sodium nitrate, hydrogenperoxide, acetaldehyde, pentaerythritol, sodium alpha olefin, sulphonate, sodium formate, chemical components and mixture and all other chemicals not specified elsewhere in this schedule or any other schedule. Entry no. 162 of part C of schedule IInd reads as under :- Acrylic polymers in primary forms. 7. As per paragraph no. 5 of the impugned order of the Tribunal, the respondent-assessee is manufactures certain chemicals under the brand name CICO Tap Crete and CICO Super Plast in four variant under different brand name. According to the assessee CICO Tap Crete is acrylic polymers falling under Entry no. 162 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determine the nature / category of the product on the basis of its use, the thrust of the judgment of the Additional Commissioner is that the appellant has failed to established that the product is acrylic polymer in primary form though he himself has not discussed as to what are the distinctive features of Acrylic Polymer in primary form and its other forms. (ii) It is well settled legal position that the burden is always on the Assessing Officer to collect the material or evidence in support of his finding on any aspect if he tends to reject the claim and contention of the assessee on that very aspect. This burden shifts on the assessee only when the assessee either makes a direct admission of any fact or there is available on the record the material on amounting to admission of that fact only then the burden would shift on the assessee to explain such facts else it would be deemed to have been established. Here in this case when the Assessing Officer had recorded a finding that the product is acrylic polymer based then the burden was on him to collect the material that it does not fall in entry no. 162. Similarly when the Additional Commissioner has recorded a finding that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the excise code of 'Acrylic Polymer in Primary Form is 39060000 and that this very commodity code the State Government has allotted as HSN Code to the goods mentioned in Entry No. 162 of Schedule II-C appended to the U.P. Value Added Tax Act, 2008. If we go through the Central Excise Tariff Act, 1985 we would find that there is no entry like Arcylic Polymers in Secondary Form or Acrylic Polymers in other than Primary Form. If there had been any distinction in acrylic polymers based on its forms the legislature would certainly have mentioned it in the list and allotted a separate code. There is another very important aspect of the matter. In the Central Excise Tariff Act, 1985 the Code allotted to acrylic polymers in primary form is 3906 and under the heading Acrylic Polymers in Primary Forms' there are mentioned many other sub entries which are by-products of acrylic polymers such as binders or pigments or inks, acrylic resins, polyacrylate moulding powder, Copolymers of acrylonitrile and others. And each of such items has been given a sub-code. Even this list is inclusive as it contains an entry 'others' with a separate sub-code 3906 90 90. It is thus very cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s adopted this code as HSH in primary form. 9. The aforesaid findings of fact has not been disputed even in the grounds of this revision which str reproduced below :- Grounds In Revision : (A) Because the order of the Tribunal is bad in eyes of law as well as on facts. (B) Because the Tribunal has wrongly come to the conclusion that water proofing compound and construction material imported by the dealer was chemical liable to tax @ 4% and not as unclassified item whereas the Commissioner under Section 59 of U.P. Value Added Tax Act has held that such goods are liable to tax as unclassified item and not as a chemical. As such the order of the Tribunal is illegal which is liable to the set aside. (C) Because, the following question of law and fact which are involved in the instant case and arises out of the Tribunal order have wrongly been decided by it. 10. In view of the above discussion, I do not find any infirmity in the impugned order of the Tribunal. 11. So far as the other commodity i.e. CICO Super Plast is concerned, the case of the assessee is that this commodity is used as water reducing agent and as reaction accelerator for giving extra strengt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad-mixture based on modified sulphonated napthelene formaldehyde combining the properties of super plasticizers with high degree of slump retention characteristics, high range water reducer and also as water proofer for concrete confirms to ASTM C-494. Its pH value is 6. It is used for producing extremely flowing concrete, pumped concrete, pre-stressed and denser concrete as well as in industrial / commercial flooring and floor toppings. (ii) CICO PLAST SUPER-S K 504 : A new general concrete admixture based on modified sulphonated napthelene formaldehyde combining the properties of super plasticisers with high decree of slump retention characteristics, high range water reducer and also as water proofer for concrete confirms to ASTM C-494 Type-G. Its pH value is 6. It is used for producing extremely flowing concrete, pumped concrete, pre-stressed and denser concrete as well as in industrial / commercial flooring and floor toppings. (iii) CICO PLAST SUPER-P 190A : A new generation concrete ad-mixture based on modified sulphonated napthelene formaldehyde combining the properties of super plasticisers with high degree of slump retention characteristics, high range water reducer a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as water proofing agent it cannot be held that it is only a water proofing product and is meant to be used only for this purpose. And thus, all the four products are nothing but the chemical admixtures which are used in the concrete as water reducer and reaction accelerators; accelerates the process of hardening the concrete by reducing water contents. (11) Here again I may say that the Assessing Officer has failed to notice the change the U.P. Value Added Tax Act, 2008 has brought in the classification of goods vis a vis the U.P. Trade Tax Act, 1948. While Entry No. 295 of the U.P. Trade Tax Act, 1948 was only a word entry 'Chemical of all kinds including fuel gases but excluding natural gases', the Entry no. 29 of Part-A of IInd Schedule appended to U.P. Value Added Tax Act, 2008 pertaining to chemicals is very wide and inclusive to cover all other chemicals which are not included in this entry or in an other schedule. More importantly we if go through the list of the goods mentioned in the U.P. Trade Tax Act, 1948 we would find mentioning of entry no. 363 which is only about the sale of the construction material to the Meerut Unit of Uttranchal Daivi Apda Pidit Sahaya ..... X X X X Extracts X X X X X X X X Extracts X X X X
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