TMI Blog2008 (8) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... wo different commodities coming under two different entries. We, therefore, are of the opinion that there is no legal infirmity in the judgment of the High Court. However, there cannot be any doubt whatsoever and particularly in view of the stand taken by the parties that if sales tax has been paid on an article, purchase tax cannot be levied thereupon. - Civil Appeal No. 4752 of 2008 - - - Dated:- 1-8-2008 - SINHA S.B. AND CYRIAC JOSEPH JJ. V.K. Sidharthan, Advocate for the appellant. P.V. Dinesh, Advocate for the respondent. -------------------------------------------------- The judgment of the court was delivered by S.B. SINHA J. Leave granted. This appeal is directed against a judgment and order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessing authority held that in the instant case entry 83 was attracted. The appellate authority upheld the said view. In a second appeal preferred before the Sales Tax Appellate Tribunal, however, a different view was taken opining that despite omission of the word "and" occurring in between the words "aluminium" and "household utensils made of aluminium", the same should be read, holding: ". . . What the appellant purchased were old aluminium vessels and aluminium scrap and used the same in the manufacture of aluminium household utensils. The rate of tax applicable in respect of the purchase turnover taxable under section 5A is disputed. Accord- ing to the authorities below old aluminium vessels and aluminium scraps will not com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly comes under entry 5, aluminium scrap cannot be treated as aluminium as such. Probably scrap aluminium predominantly consists of aluminium but still it cannot be said to be aluminium pure and simple. It is common knowledge that scrap is always melted or otherwise processed to recover the metal after removing the waste. Therefore, aluminium scrap is used to recover aluminium after removing the waste. Secondly, the intention of the Legislature to bring all metal scrap under entry 83 is very clear from the wording itself which excludes from its scope only such of the metal scraps which are referred to in Second Schedule to the KGST Act. Therefore, a clear reading of entry 83 makes it clear that all metal scrap other than iron and steel scra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel would contend that entry 83 which is a general entry being clear and unambiguous, it was wholly unnecessary for the Tribunal to enter into the question of interpretation of entry 5 which was a special entry. The appellant is a dealer under the Act. It deals in purchase and sale of aluminium household utensils. It entrusts the said utensils to another unit for manufacture of new aluminium vessels on job-work basis. A finding of fact has been arrived at by the Tribunal that the appellant used to purchase old aluminium vessels and scrap which were used for conversion to new aluminium household utensils. Old aluminium vessels are pressed to convert the same as scrap. The appellant, thus, is a scrap dealer and not a dealer in aluminium ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is attracted to the facts of the present case. Reliance placed by Mr. Sreekumar on Berger Paints India Ltd. v. Commissioner of Income-tax, Calcutta [2004] 12 SCC 42 is misplaced. Therein the Revenue did not challenge the correctness of the law laid down by the High Court. In fact it was accepted. It was in that situation, this court held that it was not open to the Revenue to challenge the correctness of the said decision in the case of other assessees, without any just cause. In this case, there exists a cause, viz., a wrong reading of the entry. The Tribunal committed a manifest error in construing the relevant "entry". It failed to take into consideration the principles governing the interpretation of a taxing statute. On tech ..... X X X X Extracts X X X X X X X X Extracts X X X X
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