TMI Blog2000 (6) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... e paper, was subject to tax as unscheduled goods under section 5(1) of the Act, the rate of tax being 10 per cent. 2. Feeling aggrieved by the said assessment order, the assessee filed an appeal before the Joint Commissioner of Commercial Taxes (Appeals), Bangalore City Division-I, Bangalore (hereinafter referred to as "the first appellate authority"). The assessing authority relied on the decision of the Supreme Court in State of Uttar Pradesh v. Kores (India) Ltd. [1977] 39 STC 8, wherein it was held that the word "paper", not having been defined, has to be understood in the sense in which persons dealing in and using the article understand it ; and the said word in common parlance or in the commercial sense would mean paper, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; and (b) during the earlier years, respondent-assessee had accepted the assessment of waste paper under section 5(1) of the Act and therefore, it could not now contend that waste paper fell under entry 3 of Part P of the Second Schedule to the Act, merely to avail the lesser rate of tax at 8 per cent. According to the petitioner the following two questions of law arise for consideration in this matter: (i) Whether Tribunal was justified in holding that waste paper sold by the assessee would be "paper" falling under entry 3 of Part P of the Second Schedule to the Act; (ii) Whether Tribunal ought to have held that waste paper, reel paper, rubbish paper and printed waste paper were not "paper" as the assessee could not use such paper for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the items in question are dutiable under tariff entry No. 68. This, as mentioned already, is the residuary entry and only such goods as cannot be brought under the various specific entries in the tariff should be attempted to be brought under the residuary entry. In other words, unless the department can establish that the goods in question can by no conceivable process of reasoning be brought under any of the tariff items, resort cannot be had to the residuary item." 7.. The description of "paper" in entry 3 of Part P of the Second Schedule includes paper of all kinds including carbon paper, which was held to be not "paper" in Kores case [1977] 39 STC 8 (SC). The description of paper in entry 3 is exhaustive and is an inclusive and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of this Court, while interpreting the provisions of an entry under the Karnataka Tax on Entry of Goods into Local Areas for Consumption Use or Sale Therein Act, 1979, held thus: "The legislative history indicates that the expression 'paper' has been understood to include all kinds of paper including carbon paper, blotting paper, waterproof paper, PVC coated paper, ferro paper, ammonia paper, stencil paper and the like. It is only by an amendment made to the Act on May 1, 1992, entry No. 65 provides that paper (all kinds) including carbon paper, blotting paper, waterproof paper, etc., but excluding certain other kinds of paper such as photographic paper, pulp boards, art boards, duplex boards, triplex boards and cellophane. This legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of newspaper, or for writing or packing, is sold as waste paper. Some of the waste paper may be printed waste paper. The Tribunal has found that the paper that is sold by the assessee as waste paper, though considered as "waste paper" for the purpose of the assessee's business, can nevertheless be used for printing or writing or packing by others, that is, small dealers or printers or actual users. This apart, "paper" does not cease to be a paper merely because it is printed or is of a smaller size than what could be used for the printing of newspapers. So long as any paper, even waste paper, can be used for any purpose for which paper is normally used, it will continue to be paper. Thus even by applying the user test laid down in Kores ..... X X X X Extracts X X X X X X X X Extracts X X X X
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