TMI Blog2012 (11) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... 794 of 2004, W.P. (C) Nos. 2225, 2226, 2227 of 2005 - - - Dated:- 9-11-2012 - GOEL A.K. C.J. AND KOTISWAR SINGH N., J. For the Appellant : Dr. A.K. Saraf, Senior Advocate, S.K. Agarwal and D. Barua For the Respondents : The Government Advocate, Assam, ORDER :- The order of the court was made by N. KOTISWAR SINGH J.- The common issue raised in this batch of writ petitions filed by the same petitioner, W.P. (C) No. 1794 of 2004, W.P. (C) No. 2225 of 2005, W.P. (C) No. 2226 of 2005 and W.P. (C) No. 2227 of 2005, is whether, raab gur is to be exempted from payment of tax under the Assam General Sales Tax Act, 1993 (hereinafter referred to as the Act ) by treating the same as gur which is exempted from tax under entry 17 of Schedule I of the Act or by treating the same as a cattle feed which is also exempted from tax under entry 50 of the said Schedule. The petitioner in this batch of writ petitions is engaged in the business of sale and supply of gur, jaggery, raab gur, molasses, etc., in the State of Assam. The said items are brought from different States where they are manufactured and sold in the State of Assam. According to the petitioner, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Regulation of Use) Order, 1968 defines gur as under: In this order, 'gur' means the gur, gul jaggery, shakkar, raab and other intermediary products, prepared by boiling sugarcane juice with or without admixture of molasses which is identifiable by the following characteristics, namely:- (i) total sugars (sucrose plus reducing sugars) as percentage of dissolved solids ranging from 70 to 95 and (ii) ash (sulphated) as percentage of dissolved solids ranging from 1.5 to 5.0 and includes a solution of any of the aforesaid articles in water. Accordingly, the petitioner contended that raab gur being another form of gur is covered by entry 17 of Schedule I of the Act. The petitioner also contends that cattle feed was once not an exempted item and was taxable and during that time, the assessing authority had assessed the item raab gur as a cattle feed and imposed tax at the rate of four per cent on the turnover as can be seen from the assessment order dated March 27, 2002 in annexure E to W.P. (C) No. 1794 of 2004. The petitioner, therefore, contends that even if raab gur is not treated as gur for the purpose of entry 17, it, being a cattle feed wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lassified goods under entry 2 of Schedule III and is taxable at eight per cent. I am therefore of the opinion that the assessing officer was justified in treating 'rub gur' as an unclassified item as per entry 2 of Schedule III. I therefore find no reason to interfere with the order of assessment made by the assessing officer. In the result, the petition of revision fails. In these writ petitions, the aforesaid revisional order dated January 28, 2004 and consequential orders levying tax on raab gur are under challenge. It is the case of the Revenue that even though gur and jaggery are exempted as per entry 17 of Schedule I of the Act, raab gur is a different item and is not included in the entry in any other entry of Schedule I or any other Schedule. Therefore, it is an unclassified item which would be covered by entry 2 of Schedule III of the Act and accordingly, taxable at eight per cent. As regards the contention of the petitioner that the raab gur is also used as cattle feed and hence exempted from tax under entry 50, it is the stand of the Revenue that raab gur is used not only as a cattle feed but has other uses. The Revenue also contended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gur given in these orders that molasses is also included within the meaning of gur . In entry 17 of Schedule I, the exempted items are gur and molasses . Therefore, if molasses which otherwise is also a kind of gur is included in the exemption clause, it is clear indication that all forms of gur are not exempted except those mentioned therein. Therefore, unless gur means and is identical to raab gur , it cannot be brought within the scope of entry 17 of Schedule I of the Act. If the intention of the Legislature was to bring all kinds of gur for the purpose of exemption, there was no need to mention molasses which is also another form of gur within the said entry. Therefore, we are also in agreement with the Revenue that even though raab gur in common parlance is a form of gur , it is a distinct item and not the same as gur and is not specifically included in the Schedule I or any other Schedule for the purpose of exemption. Hence, raab gur cannot enjoy exemption from tax under entry 17 of Schedule I of the Act. We will now examine the other contention of the petitioner that raab gur being an item of cattle feed can be exempted from tax under entry 50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Tariff Act, 1985, we are of the view that the said principle of end user may be also applied in the present case to ascertain the scope of the entry cattle feed . If the end use of raab gur can be cattle feed, we are of the view that raab gur can be also treated as cattle feed. The respondents in their affidavit-in-opposition (filed in W.P. (C) No. 1794 of 2004) stated that with the growth of scientific and modern practices of agriculture and animal husbandry, market has witnessed large scale circulation of a distinct and unique merchandise described and understood as cattle feed and any attempt to give a generalised meaning to the term so as to include within the sweep thereof other commodities or goods would be gravely erroneous as it would vitiate the very basis and principle of commodity taxation. However, nothing has been mentioned as to what are those products and merchandise which are distinct and unique which can be described and understood as cattle feeds . If it is accepted by the authorities that raab gur is also a cattle feed , merely because it has other uses will not detract it from coming within the purview of entry 50. There is no indication in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
