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TMI Blog2023 (12) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... item by Notification No.II (I)/CTR/ (a-6/2007-G.O.No.3 dated 1st January 2007:- 1. Word Processing machines, Electronic typewriters (a) Word processing machines (b) Electronic typewriters ... ... ... ... 27. "Uninterrupted Power Supply" 2068 The impugned order is made rejecting the petitioner's submission that the UPS sold by them would fall under S.No.68 Part B of the First Schedule to the TNVAT Act attracting 5% instead the impugned order proceeds to treat the UPS as falling under the residuary S.No. 69 Part C of the First Schedule to the TNVAT Act thus liable to tax at 14.5%. The impugned order sets out the following reasons to reject the petitioners claim to classify the UPS sold by it as Information Technology product falling under S.No. 68 Part B of the 1st Schedule to the TNVAT Act viz., a) UPS used at homes does not aid the development of I.T. Industry, S.No. 68 of Part B covers UPS used with computers and does not cover UPS used at homes in relation to home appliances such as light, fans etc. b) The brochure of the Petitioner is also relied upon to submit that the petitioner had itself advertised, marketed and understood that the UPS sold by it is used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with computer / Information Technology product and other than a computer / Information Technology product would by itself take the product out of S.No. 68 of Part B of the First Schedule to the TNVAT Act stands resolved by the judgment of the Division Bench of this Court in the case of Canon India, reported in 2014 (305) ELT 255. c) The impugned order insofar as it completely disregards the Test Report issued by the Electronic Regional Test Laboratory which has categorically classified the product as digital UPS stands vitiated for failing to take into account relevant factors / aspects. d) The Respondent had failed to see that the sole difference between UPS and an inverter is the time taken for switching from main mode to UPS mode and switching from UPS to mains mode. The requirement for classification as UPS is that the time taken for switching should be less than 10 milliseconds. If the time taken exceeds 10 milliseconds then the computer would reboot and the data would be lost. The Electronics Regional Test Laboratory had tested the product of the petitioner with reference to the time taken for switching from UPS to main mode and from main mode to UPS and found the time ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he scope of the notification in G.O.Ms.No.3 in exercise of the powers under S.No. 68 of Part B of the First Schedule of the TNVAT Act is untenable inasmuch as it is contrary to the settled rule that fiscal statutes should be strictly construed and there is no room for addition or omission of any words. A construction which requires addition of words ought to be avoided for the Court cannot aid the legislature, it cannot add or amend the provision. It is contrary to all rules of construction to read words into an Act. Similarly it is wrong and dangerous to proceed by substituting some other words for words of the statute. The court cannot re-frame the legislation for the reason that it has no power to legislate. In this regard it may be relevant to refer to the following judgments: i) CIT v. Vadilal Lallubhai, (1973) 3 SCC 17 : 1973 SCC (Tax) "To accept the contention of the Revenue, we have to adopt three- fold assumptions. Firstly the fictional dividend contemplated by Section 2(6-A)(c) is an "income" within the meaning of Section 44-F. Secondly we must assume that that dividend is capable of being deemed to accrue day to day and lastly we must assume that the day to day distr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst "dryer felts" falling within the category of "textiles", if otherwise they satisfy the description of "textiles"." (emphasis supplied) c)The impugned order also stands vitiated insofar as it places reliance on the advertisement / brochure to determine the classification. It is trite law that the classification cannot be made on the basis of advertisement or label for these are meant to attract customers, instead the classification must be made on the basis of the nature of the product and its description in the relevant schedule. In this regard it may be useful to refer to the following judgment: Union of India v. T.S.R. & Co. , reported in 1985 SCC Onine Mad 3 35 : (1985) 22 ELT 701 : (1985) 5 ECC 177 "9. Thus, the appellants have given varying reasons for their conclusions that the thailams prepared by the respondent are perfumed hair oils. The figure of the woman displaying her lavishly grown and flowing hair in the outer cover cannot indicate the purpose for which the oils are to be used. It has been held by the Bombay High Court in Ramtirth Yogashram v . State of M aharashtra , [1968] 22 STC 76 that the mode in which a person may choose to advertise his commodity ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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