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TMI Blog2023 (9) TMI 1419X X X X Extracts X X X X X X X X Extracts X X X X ..... ersonal opinion, even of the Commissioner, without any supporting evidence is of no use or value. Since the revenue has not discharged its burden to show that the products in question, i.e. mixture of the gases which are individually covered under Entry No. 35 ('Industrial Inputs'), would not be covered in the broad Entry No. 35 of Part B ('Industrial Inputs') of Schedule IV to the RVAT Act, the levy of additional tax and interest cannot be sustained. The question of law framed have to be answered in favour of the petitioner- assessee and against the respondent-revenue. All STR allowed. - Hon'ble Judges Sameer Jain, J. For the Appellant : Vikram Kumar Gogra For the Respondent : Punit Singhvi and Ayush Singh JUDGMENT SAMEER JAIN, J. 1. The present Sales Tax Revisions / References (for short STRs ), filed under Section 84 of the Rajasthan Value Added Tax Act, 2003 (for short RVAT Act ), were admitted on following question of law: Whether specific entry no.35 of Schedule-IV do not cover the 'Argon Carbon Dioxide, Oxygen, Hydrogen, Carbon gases as Other non metals? 2. Since common question of law is involved in all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 26.03.2018 and by the Rajasthan Tax Board vide order dated 26.03.2018, erroneously, by relying upon a Clarification dated 03.08.2017 issued by the Commissioner, Commercial Taxes under Section 91(4) of the RVAT Act read with Section 174 of the Rajasthan Goods Services Tax Act, 2017 (for short RGST Act ) and both these authorities maintained the levy of additional tax and interest but deleted the penalty thereupon. 4. Learned counsel for the petitioner-assessee has assailed the impugned levy of additional tax and interest, primarily on the following grounds: 4.1. That the gases produced and sold by the petitioner- assessee are inarguably the gases mentioned in Entry No. 34 of Part B of Schedule-IV to the RVAT Act. The only reason assigned by the respondent-revenue, to deviate from the specific entry, that too after a period of over 11 years, is that the petitioner-assessee was selling different gases in a single container. The said reason was opined by the Commissioner in his Clarification dated 03.08.2017, which in itself was in excess of the query raised by the Rajasthan Industrial Gases Manufactures Association. However, the said opinion of the Commissioner is b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner-assessee has placed on record the Analysis Report of the products in question. Reliance is also placed on Apex Court judgment of Commissioner of Central Excise, Vadodara vs. Vadilal Gases Ltd. and Ors.: (2018) 13 SCC 473, wherein it was observed that mixing of two or more gases does not amount to manufacture in terms of Section 2(f) of the Central Excise Act, 1944. 4.3. That indisputably, the gases in question are those which are specifically mentioned in Entry No. 35 of Part B of Schedule IV to the RVAT Act. It is an established cannon of classification that a specific entry would override a general entry. Reliance in this regard is placed on Apex Court judgments of State of Maharashtra vs. Bradma of India Ltd.: [(2005) 140 STC 17 (SC)], Hindustan Poles Corporation vs. Commissioner of Central Excise, Calcutta: [(2006) 145 STC 625 (SC)], and Krishi Utpadan Mandi Samiti and Ors. vs. Ved Ram: [2012 (277) ELT 299 (SC)]. It is stated that a special entry must prevail over the general entry and that the residuary clause can be invoked only if the department can establish that the goods in question can, by no conceivable process of reasoning, be brought under any of the ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e itself to discharge its burden and only after due consideration arrived at the conclusion that the goods in question were not 'industrial inputs'. The said conclusion, which is essentially a finding of fact, has also been upheld by all the authorities below. 5.3. That even as per common parlance test and end usage test, the mixture of the gases in specific composition results in an end product which is distinct from the individual gases and serves a purpose which the individual gas cannot serve. Learned counsel for the respondent-revenue has also relied on Apex Court judgments of Commissioner of Income Tax-1, Mumbai vs. Hindustan Petroleum Corporation Ltd.: (2017) 15 SCC 254 and Vadilal Chemicals Ltd. vs. The State of Andhra Pradesh and Ors.: (2005) 6 SCC 292 to submit that repackaging would also amount to manufacture. 6. Heard the arguments advanced by both the sides, scanned the record and considered the judgments cited at Bar. 7. Before adverting to the merits of the case, it is necessary to consider the Entry No. 35 of Part B of Schedule IV to the RVAT Act. Part B of Schedule IV deals with goods under the category of 'Industrial Inputs' and Entry No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g accepted classification is attributed to the fact that though the gases do not react with each other, since they are released together, they form a new commodity which is not specifically covered under Entry No. 35 of Part B of Schedule IV to the RVAT Act. Accordingly, the impugned assessment order was passed wherein the products in question were classified under Entry No. 78 (residual entry) of Schedule V to the RVAT Act attracting tax at 14.5% till 13.07.2014 and with effect from 14.07.2014 under Entry No. 29 ( Entry No. 29: Gases liquefied or not, other than those specifically mentioned in any of the Schedules : 14.5% ) of Schedule V to the RVAT Act which also attracted tax at the rate of 14.5%. As per the settled position of law, as held in UOI vs. M/s. Garware Nylons Ltd (supra), Voltas Ltd. vs. State of Gujarat (supra), and CCE vs. Hindustan Lever Ltd. (supra), the burden to prove that a specific product falls within a particular tariff is always on the revenue, more so when the revenue is trying to classify the products in the residual entry as against the specific entry. 13. In the case in hand, it is apparent that the long standing classification was disturbed merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence. Mere assertion or personal opinion, even of the Commissioner, without any supporting evidence is of no use or value. Since the revenue has not discharged its burden to show that the products in question, i.e. mixture of the gases which are individually covered under Entry No. 35 ('Industrial Inputs'), would not be covered in the broad Entry No. 35 of Part B ('Industrial Inputs') of Schedule IV to the RVAT Act, the levy of additional tax and interest cannot be sustained. 14. Even otherwise, the order(s) impugned of the learned Tax Board and all the authorities below deserves to be quashed and set aside for the following additional reasons:- 14.1. Because the reliance placed by all the authorities below on the Clarification dated 03.08.2017 is onerous. The Appellate Authority and the Tax Board are discharging quasi-judicial/judicial functions and no Departmental circular or clarification is binding on such bodies when exercising quasi-judicial/judicial functions. Reliance in this regard can be placed on Apex Court judgment of Orient Paper Mills Ltd. vs. Union of India: AIR 1969 SC 48. 14.2. Because as per settled position of law, a clarificatory ci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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