TMI Blog2010 (6) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... requisites therefor cannot be upheld. The authorities cited are so obviously consistent on the view as noticed hereinabove that no dilation based on individual facts is warranted.In the result the petition is allowed. The impugned notice dated November 7, 2002 and the order dated October 23, 2003/October 31, 2003 of the Deputy Commissioner of Taxes, Guwahati, Zone B, are quashed - W.P. (C) No. 255 of 2004 - - - Dated:- 3-6-2010 - AMITAVA ROY , J. AMITAVA ROY J. The determination made by the Deputy Commissioner of Taxes, Guwahati Zone B, Guwahati, by his order dated October 31, 2003 in exercise of powers under section 36(1) of the Assam General Sales Tax Act, 1993 (for short, hereafter referred to as, the Act ) construing aluminium plain sheets and extrusions marketed by the petitioner-firm to be items produced and fabricated from aluminium metal and thus not covered by entry 45(b) of Schedule II of the enactment is under assailment in this proceeding. A declaration has also been sought to adjudge the above items to be within the purview of the aforementioned entry for their exigibility under the Act for the period January 1, 2000 to February 18, 2002. At the time of issua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EDULE IV 10. Aluminium corrugated sheets. 8 4 4 As entry 45(b) did not fully elaborate the items covered by the non-ferrous metal referred to therein, representations from dealers in aluminium followed addressed to the Commissioner of Taxes seeking a clarification amongst others as to whether sheets, plates, semis, i.e., billets, etc., but not finished goods made from them were covered by the said expression. Clarification in the same line was also sought for by the Kamrup Chambers of Commerce from the said authority. No response, however, to the queries did occur. The petitioners in this context have referred to a departmental circular dated July 21, 1987 providing an elucidation with reference to all non-ferrous metals exigible to tax under the Delhi Sales Tax Act, 1975. It was clarified that metal with reference to section 14(iv) of the Central Sales Tax Act, 1956, implied substances of many shapes, inter alia, that of a sheet and that of non-ferrous metals in the said shape was also be deemed to be a non-ferrous metal. While the matter rested at that, the petitioners also submitted a representation bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereby the same was liable to be taxed at four per cent and that therefore the assessment made did not warrant any interference or review. The revisionary authority, however, in a proceeding drawn up under section 36(1) of the Act, by the impugned order dated October 31, 2003 held to the contrary and while setting aside the assessment order dated September 15, 2001 under section 17(4) of the Act directed the assessment officer to complete the assessment for the period 2000-01 afresh by applying the correct rate of tax and to realise the same from the dealer in accordance with law. The said authority was of the view for the reasons recorded therein that for the period in question, on an interpretation of entry 45(b) to Schedule II of the Act, aluminium in its primary or original form only was envisaged therein and did not include aluminium plain sheet and extrusions, as those were items produced and fabricated from metal aluminium. To put it differently, according to the revisional authority during January 1, 2000 to February 18, 2002, aluminium sheets were covered by the residuary Schedule III of the Act and thus taxable at eight per cent. Dr. Saraf has argued that the entry 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s relating to the lodgement of the item in question in the aforementioned entries in the two Schedules of the Act, the invocation of the revisional power in the teeth of an earlier assessment made on a correct determination of the identity of the item and the rate of levy, is wholly unauthorised rendering the impugned decision null and void, he urged. To reinforce his arguments Dr. Saraf has placed reliance on the following decisions. Collector of Central Excise, Bombay-I v. Parle Exports (P.) Ltd. [1989] 75 STC 105 (SC); [1989] 1 SCC 345, Kalidas Sheet Metal Industries P. Ltd. v. State of Kerala [2008] 13 VST 313 (SC); [2008] 3 SCC 785, State of Madhya Bharat v. Hiralal Ji [1966] 17 STC 313 (SC); AIR 1966 SC 1546, Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh [1981] 48 STC 411 (SC); [1981] 3 SCC 578, State of Kerala v. K.M. Cheria Abdulla and Company [1965] 16 STC 875 (SC), Rajendra Singh v. Superintendent of Taxes [1990] 79 STC 10 (Gauhati), Santalal Mehendi Ratta (HUF) v. Commissioner of Taxes [2006] 143 STC 511 (Gauhati), Bongaigaon Refinery and Petrochemicals Ltd. v. Union of India [2006] 287 ITR 120 (Gauhati), State of Orissa v. Titaghur Paper Mills Co. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct did exist and thus the plea of want of authority or jurisdiction is wholly untenable, he pleaded. He sought to buttress his arguments by relying on the following decisions: Aluminium Corporation of India Ltd. v. Union of India [1975] 2 SCC 472, Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh [1981] 48 STC 411 (SC); [1981] 3 SCC 578, Commissioner of Central Excise v. Indian Aluminium Co. Ltd. [2006] 8 SCC 314, Kalidas Sheet Metal Industries P. Ltd. v. State of Kerala [2008] 13 VST 313 (SC); [2008] 3 SCC 785, Union of India v. Belgachi Tea Co. Ltd. [2008] 304 ITR 1 (SC); [2008] 12 SCC 450, G.E. Lightings (India) Ltd. v. State of Assam [2009] 20 VST 361 (Gauhati); [2007] 3 GLT 916. Dr. Saraf in reply referred to para 2 of the writ petition to controvert the assertion that the petitioners had admitted that aluminium sheets marketed by them are manufactured and/or finished products. I have accorded my anxious consideration to the pleadings and the documents on record as well as the submissions made. Admittedly prior to the notification dated December 24, 1999, entry 45(b) of Schedule II and entry 10 of Schedule IV read as hereunder: SCHEDULE II SCHEDULE I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rging conundrum pertains to location of aluminium plain sheets during January 1, 2000 to February 18, 2002 for the correct assessment of tax therefor under the Act. Whereas the petitioners in the background of the procession of events contend that aluminium plain sheet during this period was obviously lodged in entry 45(b) of Schedule II, the Revenue asserts that it was so in entry II of the residuary Schedule III. The key to the poser, therefore, unerringly lies in the discernment of synonymy, if any between aluminium and aluminium plain sheets. To put it differently if the non-ferrous metal aluminium mentioned in entry 45(b) of Schedule II of the Act during the interregnum can be construed to be inclusive of aluminium plain sheets not being a finished product, the same would be taxed at four paise per rupee till brought in entry 10 of Schedule IV by the notification dated February 15, 2002 with effect from February 19, 2002. The answer being assuredly contingent on the scheme of the legislation involved, it would be appropriate first to notice the judicial opinion cullable from the authorities cited at the bar. In State of Madhya Bharat v. Hiralal Ji [1966] 17 STC 313 (SC); ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above goods. The subsequent notification was thereafter amended by a State legislation whereby sheets and circles used in manufacture of brassware and scrapes were included in the aforementioned goods. In response to a representation made by the appellant that aluminium ingots, billets, rolled products, extrusions, etc., manufactured by it were covered by the first notification prescribing the rate of taxability as 3 , the concerned revenue authority was of the view that aluminium ignot should only be taxed as metal under the said notification but rods, bars and rolled products, extrusions at seven per cent as unclassified items. Later, in view of the impugned notification aluminium ingots were assessed for tax at the rate of two per cent while the rest of the products as above were charged at seven per cent. The appellant having unsuccessfully contended before the jurisdictional High Court that rolled products including plates, coils sheets, etc., also were within the purview of metals and alloys to avail of the lower rate of levy, the issue was taken to the apex court. Their Lordships while recalling that a word describing a commodity in a sales tax statute should be interpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of Central Excise, Bombay-I v. Parle Exports (P.) Ltd. [1989] 75 STC 105 (SC); [1989] 1 SCC 345, involving an interpretation of an exemption notification under the Central Excise Rules, 1944, their Lordships reiterated that when two views are possible the one in favour of the subject ought to be adopted. It was held that an exemption clause ought to be interpreted liberally provided no violence is done to the language employed. The pleaded facts in Commissioner of Central Excise v. Indian Aluminium Co. Ltd. [2006] 8 SCC 314, disclosed that the respondent therein manufactured aluminium sheets, the raw materials whereof was aluminium oxide. In the process of discerning the impost on aluminium dross, their Lordships reiterated that every change of an article may be the result of some treatment, labour and manipulation but manufacture would imply a transformation so much so that a new and different article emerges having a distinct name, character or use. This decision understandably has been introduced by the Revenue to underline that aluminium sheets is a finished product. The decision, however, does not in authoritative terms declare it to be so in the generic sense. In ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state without undergoing a metamorphosis shedding the unique features thereof would not render the resultant yield a finished product. Unless a particular form of a primary metal has been statutorily defined for its identification amongst others for ascertaining its exigibility and the rate therefor, common parlance test and dictionary definition would be safe guides. Two views, if possible, one in favour of the assessee ought to be adopted unless a visible violence to the language ensues. To reiterate, prior to the issuance of the notification dated January 27, 2000, aluminium sheets were entered in entry 10 of Schedule IV of the Act. Entry 45(b) in Schedule II did not mention aluminium therein. It was only by the notification dated January 27, 2000 with effect from February 1, 2000 that aluminium was incorporated in entry 45(b) as one of the non-ferrous metals and their alloys as referred to therein excluding, however, the finished goods made therefrom. Significantly aluminium sheets were withdrawn from entry 10 of Schedule IV and were substituted by aluminium corrugated sheets. No specific entry for aluminium sheets was provided. Whereas entry 45(b) under Schedule II rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enudation of all the characteristic attributes of its primary state. Having regard to the successive notifications prescribing the situs of aluminium plain sheets and in absence of any overwhelming evidence that the same on the basis of the inputs available can be decisively held to be a finished product emanating from the primary metal aluminium, this court is of the view that for the intervening period February 1, 2000 to February 18, 2002 it ought to be regarded as included in entry 45(b) of Schedule II and taxable at four per cent. The finding of the learned revisional authority to the contrary is unsustainable in law and on facts and is thus adjudged as such. The decisions cited at the bar bearing on the scope and ambit of section 36(1) of the Act accentuate the conditions precedent for the invocation thereof to be (i) erroneous order of lower authority vitiated by jurisdictional infirmities and (ii) resultant prejudice to the interest of the revenue. In the face of the determination that aluminium plain sheets during the period in question were installed in entry 45(b) of Schedule II of the Act and encompassed in aluminium , the intervention of the revisional authori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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