TMI Blog1996 (7) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... any branch or department of any firm, is a dealer, or (b) any tax is payable in respect of any particular sale or purchase, or if tax is payable, the point and the rate thereof, the Commissioner shall make an order determining such question. (2) The Commissioner may direct that the determination shall not affect the liability of any person under this Act, as respects any sale or purchase effected prior to the determination. (3) If any such question arises from any order already passed under this Act, no such question shall be entertained for determination under this section, but such question may be raised in appeal against, or by way of revision of such order." 4.. Clause (i) of sub-section (d) of section 2 of the RST Act, 1954 defines "Commissioner" to include "Additional Commissioner". 5.. The facts as ascertainable from a perusal of the impugned order are that the non-applicant No. 4 made an application under section 12A of the RST Act, 1954 stating that it had purchased "spring leaves" (sic) and "spring leaves assembly" (sic) for its own use from local manufacturers, viz., the applicants before this Tribunal and one M/s. Ashoka Foundry and Metal Works Ltd., and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d steel as defined in clause (iv) of section 14 of the CST Act, 1956. 4 per cent ................. 78. Tyres, tubes, parts and accessories of all types of motor vehicles. 12 per cent ................. 105. General rate, i.e., all goods that are not covered by S. Nos. 1 to 104. 10 per cent." 8. Leaf springs are not mentioned by name as an item in the above list. 9. The decision of the Board of Revenue referred to in the impugned order may also be briefly discussed at this stage itself to complete the background. 10. In Kotah Steel Rerolling Mills (P) Ltd. v. Additional Commissioner, Commercial Taxes, Jaipur decided by the Board of Revenue on May 23, 1978, the Board of Revenue had before it a revision (under the RST Act as it then stood revisions lay to the Board of Revenue) arising out of a determination made by the Additional Commissioner under section 12A of the RST Act, 1954 that the laminated spring steel bars and flat bars cut into various sizes obtained from steel billets and ingots are not taxable as "iron and steel" at 3 per cent (the rate then preval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that laminated springs if sold to general dealers would be taxed as unclassified items but if it was sold to motor part dealers it could be taxed as motor parts. A preliminary objection was also raised that the applicants did not avail of statutory remedies. 14.. We have heard the learned counsel for the parties and have carefully considered all relevant aspects of the matter and the law on the subject. 15.. It is a fact that an order under section 12A of the RST Act, 1954 (which corresponds to section 40 of the RST Act, 1994) is appealable under section 85 of the 1994 Act, which corresponds to section 14 of the RST Act, 1954, to the Rajasthan Tax Board. However, the applicants could not have availed of this remedy as they were not parties in the proceedings before the Additional Commissioner. As for the normal statutory remedies of appeals and revision those would become available against the assessments made in pursuance of the impugned order. These remedies can neither be considered adequate nor efficacious. For one thing the impugned order could not be challenged in those proceedings. For another departmental authorities subordinate to the Additional Commissioner were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially to drive clock work or for cushioning in furniture or "vehicles". (Emphasis* added). 19.1. According to COD: "laminate v., n., v. l. tr. beat or roll (metal) into thin plates, 2. tr. overlay with metal places, a plastic layer, etc., 3. tr. manufacture by placing layer on layer. 4. tr. intr., split into layers or leaves, n. a laminated structure or material esp. of layers fixed together to form rigid or flexible material." (Emphasis* added). 19.2. According to COD leaf spring is "a spring made of strips of metal." 19.3. According of Webster's Third New International Dictionary of the English Language Unabridged [1961] brought out by the Encyclopaedia Brittanica Inc. USA, leaf spring is a "spring made of superposed strips, plates or leaves". 19.4. The word "kamani" is how laminated springs and leaf springs are popularly known. It is a picturesque expression which comes from the Hindi word "kaman" meaning the archer's bow and owes its use probably to the fact that leaf springs are clamped together and bent like a bow. It is this capacity for bow like bent which gives it the resilience to provide the cushioning to act as a spring. 19.5. The terms "kamanis", "laminat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the turnover as pertaining either to automobiles or to tractors. It was not in dispute that the nuts and bolts in question were not manufactured specially for use as automobile spare parts but were of general nature liable to be used in any industry. It was held that nuts and bolts were iron and steel articles. In para 6 of its judgment at page 569 of the Report the Kerala High Court observed: ".................in Porritts Spencer (Asia) Ltd. v. State of Haryana [1978] 42 STC 433 (SC) where the court observed that the use to which any goods may be put is immaterial, and does not bear on its character as a particular category of goods. The reason of the rule is to avoid uncertainty in the categorisation of goods, and the practical impossibility of a dealer following the purchaser to ascertain the purpose for which the goods have been put. The nature or character of any goods does not depend upon the use to which a particular customer may put it.............. In the subsequent decision in Mukesh Kumar Aggarwal Co. v. State of Madhya Pradesh [1988] 68 STC 324 (SC)..... It was further stated that the nature of the goods cannot be determined by the test of the use to which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flat steel bars into different sizes. These laminated springs are sold as such without clipping them together and are not sold as motor parts to dealers. The respondents contend that they are selling the goods in question as motor parts. As the end use is immaterial for purposes of categorisation of the goods in question, the fact that the strips sold by the applicants cannot be directly used as springs in a motor vehicle but only after they are clipped together and are therefore not motor parts is equally immaterial. 28.. The non-applicants in their reply have mentioned that the applicants are currently charging sales tax as applicable to parts of motor vehicles and therefore accept the goods in question as motor parts. In the course of arguments the learned counsel for the applicants clarified that they had no option under the impugned order which determined the goods in question to be exigible at the rate of sales tax applicable to parts of motor vehicles. This is undoubtedly the correct position. 29.. To conclude, as leaf springs are not exclusively for use in motor vehicles and are commonly used in other vehicles and as there was no distinct entry in the notification of Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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