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2017 (9) TMI 677 - HC - VAT and Sales TaxInsecticide - classification of goods - whether the Tribunal erred in law in classifying "Good Knight Advanced Fast Card" under the residuary entry without establishing that "Good Knight Advanced Fast Card" can by, no conceivable process of reasoning be brought under Entry No. 20 Schedule II of U.P. VAT Act, 2008? Held that: - It is settled law that when one particular item is covered by one specified entry then the Revenue is not permitted to travel to the residuary entry - It is settled law that onus or burden to show that a product falls within a particular tariff item is always on the Revenue. If the Revenue leads no evidence then the onus is not discharged. The Tax Authority would have to make an enquiry to produce evidence to show that in common parlance 'Fast Card' is a product akin to Mosquito repellent/destroyer Mat. Mats, coils, liquid, spray and fast card may or may not qualify as mosquito repellent/destroyer but having due regard to their chemical composition some of the products may be insecticide within the meaning of the Insecticide Act, but that what is excluded from Entry 20 is not all kinds of products used as Mosquito repellent/destroyer but only a particular kind of product mentioned, therein, viz. coils, mats and liquids and no other. Had the legislature intended to exclude all kinds of products used as Mosquito repellent/destroyer, as opined by the Tribunal, the legislature would have aptly used the expression "excluding Mosquito repellent/destroyer" or "excluding All Mosquito repellent/destroyer" or "excluding Mosquito repellent/destroyer coils, mats, liquids etc.". The expressions, hereinabove, is not unknown to the legislature, rather, similarly worded expression has been employed in other entries of the same Schedule - Tribunal committed gross error in misreading the exclusion clause of Entry 20 to conclude that the intention of the legislature was to exclude all Mosquito repellent/destroyer including Fast Card since being a Mosquito repellent/destroyer - Tribunal committed an error in coming to a conclusion that Mats would include Fast Card. To reach such a conclusion Tribunal embarked upon a course of comparing the shape and size of the product viz. Mats and Fast Card. In classification, such a course is not available, if adopted may lead to erroneous results deviating from the intended intention of the legislature as expressly provided from the plain language employed by the legislature. The matter is remitted to the Tribunal to decide afresh in the light of the settled principle of law - revision allowed by way of remand.
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