TMI Blog2013 (10) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Dy. Commissioner (Appeals), Commercial Taxes Department, Alwar ['DC (Appeals)'] was partly allowed, wherein, while order relating to the rate of tax was maintained, the penalty imposed was set aside. The DC (Appeals) had upheld the imposition of tax and penalty by the Commercial Taxes Officer (Anti Evasion), Rajasthan First, Jaipur ['CTO (AE)'] and Commercial Taxes Officer, Circle-A, Bhiwadi ('CTO') vide assessment orders passed on various dates. These 13 petitions arise out of assessment orders passed on different dates by CTO (AE) and CTO pertaining to different quarters. For the sake of convenience facts as narrated in S.B. Sales Tax Revision No.78/2012 are being considered. The revision petitions were admitted by this Court by order dated 19.04.2012 on the following question of law:- Whether in the facts and circumstances of the case, Rajasthan Tax Board was legally justified in not classifying the 'sun-glasses' under Entry 125 of Schedule IV of Part A as 'Spectacles, parts components thereof, contact lens and lens cleaner' taxable @ 4% but classifying under the residuary clause under Schedule V @ 12.5%? The fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Where as entry which sans references - all types of, all kinds of, such goods, like articles, similar types, this kind, including, etc ---, is entry of restrictive and exhaustive in nature. Such entries are by name, with specific description and some times with reference like - that is to say, namely. The scope and ambit of such entry is specific, limited and confined to what has been described there in. The entry at Sr. No.-125 of the Schedule -IV, as claimed by the assessee, is read as spectacles, part and components thereof, contact lens and lens cleaner. This entry is plain, clear and without any use of genus, hence, it is an exhaustive and restrictive entry. This view would get further strength if it is compared with those entries of inclusive and illustrative ones of this schedule only. For example, entries of this Schedule IV at Sr. No.-104 - printed material including diary, calender etc. These all entries are found with genus and comparison between these on one hand and that at Sr. No.-125 would show a distinction is that all the entries at Sr. No.-2, 3, 21 104 are with a genus and scope enlarging words- such as, like, other, etc, including, hence inclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule-V- goods not covered in any other schedule under the Act or under any notification issued under section 4 of the Act. If sunglasses, which are not covered by the entry mention at Sr. No.-1 above but still allowed to be include on presumption basis within its ambit, then the entry at Sr. No.-2 above would become redundant which is not allowed in the law. 12. General meaning/understanding of the goods in the trade parlance is an important basis for classification purpose and this issue is no longer a res integra though the assessee has pleaded this principle in their favour, however not found with any support for concluding this being to in this case, on the contrary in the trade also, sunglasses are not sold/bought as spectacles or contact lens. Spectacles and contact lenses are used to correct the defects deficiencies of vision, whereas sunglasses are normally used to protect eyes from sunrays, dust, wind and for beautification but not in any case to correct the defect of vision. Infact, in the trade both are distinct product, known differently and used for different purpose. In Rajasthan, these are known and called as DHOOP KE CHASHME NAZER KE CHASHME, dhoop ke ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y specific description of the goods given in an entry. It can not be a case that particular goods have to be fit in an entry, though not having any mention of that goods, specifically when that entry is not an inclusive or illustrative but a restrictive and exhaustive one i.e. entry no 125 of Schedule IV. Therefore the reply submitted by the dealer deserves to be disallowed and the relied upon cited decisions are not applicable in the facts and circumstances in the present case. On the grounds as discussed here in above, the goods viz. RayBan brand sunglasses is determined under entry -1 of the Schedule-V of the Notification No-F.12(63)FD/Tax/2005-158 Dated 31/03/2006, @ 12.5 of the VAT. Feeling aggrieved by the assessment order dated 04.02.2008, the petitioner filed appeal before the DC (Appeals), who by order dated 24.07.2009 while upholding the conclusions arrived at by the CTO (AE) both on tax and penalty, dismissed the appeal filed by the petitioner. The DC (Appeals) held as under:- Goods not covered in any other schedule under the Act or under any notification issued under section 4 of the Act, is taxable @12.5% The petitioner aggrieved by the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Reference was also made to the Harmonized System of Nomenclature ('HSN') to indicate that under HSN also spectacles cover sunglasses. Reliance was also placed on the judgment of Hon'ble Supreme Court in the case of Indian Metals Ferro Alloys Ltd. v. Collector of Central Excise : 1991 (51) ELT 165 and Bharat Forge Press Industries (P) Ltd. v. Collector of Central Excise : 1990 (45) ELT 525 to contend that unless the department can establish that the goods in question cannot be brought under any of the specific items mentioned in the tariff, resort cannot be had to the residuary item. Learned counsel also referred to certificates issued by the certain dealers and hospitals in support of his contentions. Replying to the submissions, it was contended by learned counsel for the Department that all the three authorities below have held concurrently against the petitioner and, therefore, in fact no question of law arises in the present case. It was submitted that the intention of Legislature has always been to charge tax at a low rate on the spectacles, which did not include sunglasses. Reference was made to the entry which existed in the year 1995-96, which provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standing, or according to their popular meaning. The relevant part of the said judgment may be noticed thus:- 15. According to the rules of interpretation for the First Schedule to the Tariff Act, mentioned in Section 2 of the Tariff Act, classification of an excisable goods shall be determined according to the terms of the headings and any corresponding chapter or section notes. Where these are not clearly determinative of classification, the same shall be effected according to Rules 3, 4 and 5 of the general rules of interpretation. However, it is also a well known principle that in the absence of any statutory definitions, excisable goods mentioned in tariff entries are construed according to the common parlance understanding of such goods. 18. Time and again, the principle of common parlance as the standard for interpreting terms in the taxing statutes, albeit subject to certain exceptions, where the statutory context runs to the contrary, has been reiterated. The application of the common parlance test is an extension of the general principle of interpretation of statutes for deciphering the mind of the law maker; it is an attempt to discover the intention of the Legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lpit s., spectacle containing the lenses in the lower segments of the glass only. safety s., protective s. stenopeic s., spectacle fitted with metal plates, having each a small central aperture. tinted s., spectacles of a glass so colored as to protect the eyes from the effects of too bright light. wire frame s., a kind of spectacles of wire gauze worn to protect the eye from the entrance of foreign bodies. In the Oxford English Dictionary on Historical Principles, spectacle has been defined as :- A means of seeing; something made protecting the eyes from dust, light, etc., consisting of two glass lenses set in a frame which is supported on the nose, and freq. kept in place by 'legs' passing over the ears. In the Webster's Dictionary and Thesaurus of the English language, spectacle has been defined as :- (pl.) a pair of lenses, mounted in a light frame which rests on the bridge of the nose and hooks or rests behind the ears, designed to correct certain defects of vision or to protect the eyes spec-ta-cled adj. wearing spectacles In the New Encyclopedia Britannica, spectacles have been used as synonyms to eye glasses and in so far as relevant have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and lenses (iii) 2001-02 Spectacles, their frames and lenses (iv) 2003-04 Spectacles, their frames and lenses (v) 01/04/06 Spectacles, parts and components, contact lens and lens cleaner The above development of entries from time to time would reveal that while spectacles, their frames and lenses have been the basic entry, which started with a rider 'upto ₹ 400/-' with the passage of time, came to be substituted as spectacles, parts and components thereof, contact lens and lens cleaner. The inclusion of contact lens and lens cleaner, meant for correction of vision, which has gained sizable use over a period of time, as compared to the year 1995 when the entry was first introduced, further establishes the fact that the entry in question relates to only corrective equipment and not so called protective equipment i.e. the sunglasses as sought to be projected by the petitioner. The Harmonized System of Nomenclature (HSN) relied on by learned counsel for the petitioner indicates as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l axle screw, bridge screw and dial key screw' cannot be classified as 'screws'. The CTO recorded a finding of fact that in the trade spectacles and sunglasses are distinct product, known differently and used for different purposes and also observed that in Rajasthan while sunglasses are called dhoop ke chashme, spectacles are called nazer ke chashme, which finding has been upheld by the Tax Board as well. The submission of learned counsel for the petitioner that such a distinction was not warranted and there was no reason to read the said distinction in the entry cannot be accepted. It was well within the jurisdiction of the authorities below, while considering the issue involved, to record the finding based on the common parlance test as to what the product in issue is called in common parlance. In terms of the judgments of Hon'ble Supreme Court in the case of Indian Metals Ferro Alloys Ltd. (supra) and Bharat Forge Press Industries (P) Ltd. (supra) cited by learned counsel for the petitioner, the department has clearly established that the sunglasses cannot be brought under Entry 125 of Schedule IV and, therefore, the same would fall in residuary item. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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