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2016 (5) TMI 1038 - HC - VAT and Sales TaxWhether bitumen emulsion should be regarded as bitumen and covered by Entry 14 of the list of goods taxable at five per cent in Part-I of Schedule C to the West Bengal Valued Added Tax Act, 2003 - Held that:- while matching goods against the entries in schedules under the sales tax and VAT laws, ought to be the test of a product’s relatability to a particular entry based on its commercial identity, use and the common parlance test. If any commodity is capable of being covered by several specified entries – as distinct from the residuary entry – the best fit would be on a combined assessment based on the commercial identity, common parlance and user tests. The positive co-relation between the concerned goods and the specified entry, based on such three broad tests, ought to provide the answer. But when the choice is between a particular specified entry and the non-descript residuary entry, the assessment should be founded on a negative test: whether the goods are more non-relatable than relatable to the entry on a reasonable application of the three criteria, before they are parked under the residuary entry. There can be no mathematical formula for such an exercise, but there must be a pronounced doubtful co-relation between the goods in question and the specified entry on all three counts before such goods can be banished to the residuary entry, irrespective of whether the residuary entry carries a higher or lower rate of tax. A further consideration would be that since an indirect tax as sales tax is passed on to the consumers, whether a dealer should be penalised and made to pay the tax by upsetting an interpretation that has been accepted for a few years. If such are the tests, bitumen emulsion would pass muster to find itself in the company of bitumen in Entry 14 in Part-I of Schedule C to the Act of 2003. therefore, the bitumen emulsion is more relatable to the entry covered by bitumen rather than the residuary entry in Schedule CA to the Act. - Petition disposed of
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