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TMI Blog2007 (10) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... e order passed by the Tribunal. The item 'Capacitors' is subject to payment of tax at a concessional rate. The order passed by the High Court, to that extent is, therefore, upheld. It is, however, made clear that if any assessee had collected an amount at a higher rate of tax from its customers than the concessional rate as held by us, it is open to the Revenue to take appropriate proceedings in accordance with law for the recovery of such amount. The excess amount, if any, recovered by any assessee towards tax shall have to be paid by such assessee to the Government. - Civil Appeal No. 4832 of 2007 - - - Dated:- 12-10-2007 - C.K. Thakker and Altamas Kabir, JJ. Anoop G. Chaudhary, Senior Advocate (Manoj Saxena, Rajnish Kr. Singh, Rahul Shukla and T.V. George, Advocates, with him) for the appellants. A.R. Madhava Rao and M.P. Devanath, Advocates for the respondents. [Judgment per : C.K. Thakker, J.]. - Leave granted. 2. This appeal is filed by the State of Andhra Pradesh Anr. ('Revenue' for short) against common judgment and order dated August 31, 2005 in several Revisions. By the impugned order, the High Court allowed Tax Revision Cases (TRC) filed by manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant provisions of law as also various G.O.Ms. and referring to several decisions, held that from the relevant material, it was clearly established that 'Capacitors' would fall under the category of 'electronic goods' and the Tribunal was wrong in upholding the contention of Revenue that the item could not be said to be electronic goods. The High Court also held that in G.O.Ms issued by the Revenue from time to time, various items were expressly specified and Capacitors was one of them. In view of specific mention of the item, the Revenue was bound to grant benefit to the assessee of concessional rate of tax and the Tribunal was not justified in considering the question on the basis of 'operating principle'. The said process could have been undertaken by the Tribunal had there not been a specific mention of the item and the question was required to be decided on general principle and practice. But once there was a list of electronic items prepared by the Electronic Commission and G.O.Ms referred to those items wherein 'Capacitors' was included, only thing the Tribunal required to do was to ascertain whether the item found place in the list or not. Once the item is included in the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted from customers towards tax. This cannot be allowed to be done as it would amount to 'unjust enrichment' by the assessee. To that extent, therefore, in any case, the assessee is liable to pay the amount to the Revenue. On all these grounds, it was submitted that the appeals deserve to be allowed by setting aside the order passed by the High Court and by restoring the order of the Tribunal. 9. Learned counsel for the assessee, on the other hand, supported the order passed by the High Court. It was submitted that no error of law can be said to have been committed by the High Court in deciding the matters and these are not fit cases to entertain appeals under the discretionary jurisdiction of this Court under Article 136 of the Constitution. It was also submitted that it was clear from the provisions of law that 'Capacitors' could be said to be 'electronic goods' and subject to payment of tax at a concessional rate. In several cases, such view was taken by the Assessing Authorities. Since in some cases, a different view was struck, G.O.Ms were required to be issued by the Authorities. Such amendments /instructions/communications were declaratory in nature and obviously, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to G.O.Ms. No. 520, dated July 20, 1998, issued under the State Act and G.O.Ms. No. 521 issued under the Central Act. The relevant part of G.O.Ms. No. 520 reads thus : (2) For the purpose of this notification, the term 'electronic goods' means electronic systems, instruments, appliances, apparatus, equipment operating on electronic principles and all types of electronic components, parts and materials and includes (i) consumer electronics; (ii) electronic test and measuring instruments; (iii) medical electronic equipment, (iv) electronic analytical instruments; (v) electronic equipment/instruments for nuclear, geo-scientific and other special applications; (vi) electronic process control equipment; (vii) power electronic equipment; (viii) electronic industrial automation and control equipment; (ix) electronic data processing systems and electronic office equipment; (x) electronic broadcasting equipment; (xi) electronic communication equipment; and (xii) electronic aerospace and defence equipment. 11. G.O.Ms. No. 521 issued under Central Act is in pari materia to G.O. Ms. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar issued by the Commissioner, it is clear that in pursuance of several representations received from Dealers requesting to clarify the specific items falling under 'electronic goods' that the Classification Memo was issued by the Government and the Circular by the Commissioner on the basis of the list prepared by the Electronic Commission. The said list expressly contained an item 'Capacitors'. In view of specific reference to 'Capacitors', in our opinion, the High Court was right in relying on the said item and in holding that 'Capacitors' could be said to be 'electronic goods' and was covered by a concessional rate of tax under the Act. 16. The learned counsel for the assessee stated that on the basis of the list prepared by Electronic Commission, concessional rate of tax was recovered on items mentioned in the list. A similar question came up for consideration before the High Court of Andhra Pradesh in State of Andhra Pradesh v. Amara Raja Batteries [1998 (111) STC 664 (AP)]. There, the Court was concerned with NICD Batteries. The Court considered G.O.Ms. 520 and 521 and item No. 13.93 of the list ('Other batteries') declared by Electronic Commission and held that it was enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erates on electronic principle the same would not be considered as "electronic goods" or component for the purpose of concessional rate of tax. We are unable to accept the said contention of the Revenue on the first principle. If a particular item of goods or component, part or material is not specified in the list either in the Government Order or in the list of electronic items that are prepared by the Electronics Commission, then only the question would arise for consideration whether a particular item can be treated as an electronic goods or component or material, depending upon its operating principle, but not otherwise. Admittedly, the list of electronic items prepared by the Electronics Commission shows that there are as many as 16 sub-headings under which various items that are listed or specified. In the present case, we are concerned with "plastic film capacitors". The said item finds place under the sub-heading "electronic components." In the list of items prepared by the Electronics Commission the plastic film capacitors is specified at 13.39. Similarly, there are other capacitors such as paper capacitors at 13.38, ceramic capacitors at 13.42, and mica capacitors at 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd growth, the provision must be liberally construed. In view of the fact, however, that according to us, item relating to 'Capacitors' has been expressly included in the list prepared by Electronic Commission, it is not necessary for us to enter into larger question as, in our judgment, the assessee had rightly succeeded and the High Court was justified in allowing Revisions. 23. The learned Counsel for the Revenue, no doubt, submitted that the Tribunal merely remanded the matter to the Authorities to decide them in accordance with law and the High Court ought not to have interfered with the order. In our opinion, however, the submission is ill-founded. As rightly held by the High Court, the Authorities were required to proceed on the basis of list prepared by Electronic Commission. Since the Electronic Commission included 'Capacitors' as one of the items, it was not open to the Tribunal to enter into the question as to the functions to be performed by Capacitors and to remit the matter to decide as to whether it would be covered by the item 'electronic goods' or 'electric goods'. Hence, though the matter was remanded, the High Court was justified in interfering with the said or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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