TMI Blog2004 (5) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... odity and it ought to be taxed accordingly? The Tribunal in its order under revision has held that sales of coal cinder is liable to be taxed as coal. The department treated the cinder coal as unclassified item and levied the tax at the rate of 8 per cent. The Tribunal has followed the order given by it in other appeals and has held that cinder is taxable as coal at the rate of four per cent. Heard the counsel for the parties and perused the record. The dispute relates to the assessment year 1981-82. Before adverting to the precedents it is desirable to notice the relevant notifications. The notification No. 8448 of October 1, 1975 issued under section 3AA of the U.P. Sales Tax Act, 1948 provides that with effect from October 2, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and all combustible property of coal has escaped into that atmosphere, what is left is ashes which are no longer capable of burning. Where all the combustible property of coal has not completely escaped into the atmosphere, the residue which is left and which may still be capable of combustion and which may serve many of the purposes which are served by burning coal, is not coal but cinder . The same view has been taken by the Madras High Court in the case of M. Varadarajulu Naidu v. State of Madras [1965] 16 STC 684. This view has been reiterated in K. Venkataraman and Company v. Deputy Commercial Tax Officer, Coimbatore IV [1972] 30 STC 57 (Mad). The Madras High Court has followed the judgment of this court given in the case of Mah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid judgment given in the case of Commissioner of Sales Tax v. Modi Industries [1997] 105 STC 436 (All); [1997] UPTC 374 for the reasons given by this court in the case of International Chemical Industries [1998] 27 STR 167 (All). I am of the view that the said case is distinguishable and is not of any help to the dealer-opposite party. In support of the argument the learned counsel for the dealer-opposite party has placed further reliance upon another judgment given in the case of Commissioner, Sales Tax v. Modi Paun Ltd. [1999] 114 STC 132 (All). It appears that the attention of learned Judge to the earlier judgments of this court on the point were not drawn and the said judgment is per incuriam. The attention of the court was not dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am Babu [1962] 13 STC 248 (All) in the case of Commissioner of Sales Tax v. Fertilizer Corporation of India [2001] 33 STR 440. It has been held that by no stretch of imagination coal ash can be treated as coal. Coal ash and coal are two different commodities. An argument was sought to be raised by the dealer-opposite party that the Commissioner of Sales Tax in the proceedings under section 35 of the Act has held that cinder is coal ash and is liable to be taxed as such at the rate of 4 per cent. This argument has no merit. It has been held in the aforesaid case, namely, Commissioner of Sales Tax v. Fertilizer Corporation of India [2001] 33 STR 440 that the decision given by the Commissioner of Sales Tax in the proceeding under section 35 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in all its forms relates to coke and not to coal . Its observation that clause mentions coal only and then declares that word shall include coke in all its forms are very important for deciding the issue in hand. Meaning thereby phrase in all its forms relate to coke and not to coal . This interpretation was given by the Supreme Court in year 1971. The same conclusion may be reached from another angle. In this context it may also be remembered that this court in the year 1962 held that the cinder is not coal. Thereafter, the notification was superseded by another notification issued on September 7, 1981 and the same phrase was repeated, namely coal including coke in all its forms . It must be assumed that while issuing the two ..... X X X X Extracts X X X X X X X X Extracts X X X X
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