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2015 (3) TMI 39 - HC - VAT and Sales TaxLevy of VAT on pea-gravel - Exempted goods or goods falling in residuary entry - Recall of order in [2010 (9) TMI 979 - GAUHATI HIGH COURT] - assesse petitioner submits that there was an error apparent on the face of the record. According to him, Entry No. 193 of Schedule II(b) of the Tripura Value Added Tax Act, 2004 does not entitle the State Government to levy tax on each and every item and it cannot be read in the manner in which it has been interpreted by the learned Division Bench - Held that:- Apex court in [1990 (1) TMI 70 - SUPREME COURT OF INDIA] in no uncertain terms held that only such goods which are not covered by various specific entries in the tariff could be brought under the residuary entry. This leaves no manner of doubt that if any goods are mentioned in any of the Schedules then they cannot be covered by the residuary entry. However, if the goods are not mentioned in any of the Schedules than they would fall within the ambit of the residuary entry. Therefore, we are in total agreement with the findings arrived at by the learned Division Bench that since pea-gravel is not included in the list of exempted goods and also not covered by any other item in any of the other Schedules, the same would fall under entry No. 193 of Schedule II(b) of the TVAT Act. Excessive delegation of power - The Legislature in its wisdom decided to frame the statute in such a fashion that the exempted items are specifically mentioned in Schedule III. The necessary corollary is that all items not mentioned in Schedule III would be taxable. The rates of tax as already pointed out above are mentioned in the different Schedules. Schedule II(b) levies the highest rate of tax and the Legislature in its wisdom decided that all items which do not find mention in any other Schedule would be part of entry No. 193 of Schedule II(b) and tax would be levied at the highest rate. Therefore, there is no excessive delegation because it is Legislature which has fixed the rate of tax and no discretion has been left with the authorities as to which items are to be included in which Schedule. Any item not forming part of Schedule II(a), II(c), II(c)(i) and II(d) will be exigible to tax at the rate mentioned in Schedule II(b). - no merit in the review petition or the writ petition - Decided against Petitioner.
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