TMI Blog2010 (4) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... carrying on 48 refrigerators from Dasna, District Gaziabad to Bhopal. The goods were being transported under stock transfer by M/s. L.G. Electronics (India) Ltd. to their Bhopal Branch. Respondent No. 3 intercepted the truck at the time of entry in the city of Bhopal in which the aforesaid consignment was being transported and for want of declaration as contemplated under section 45D(1) of the Act levied penalty of Rs. 1,66,650. The petitioner submits that the State Government in exercise of powers conferred by virtue of section 45A(4) notified 34 goods vide notification (P3) dated August 2, 2005. The said notification does not require presentation of declaration form to the check-post officer in case of transportation of refrigerators. The refrigerators have not been notified for the purpose of section 45A(4), hence the petitioner was not required to carry the declaration and to present the same. Treating the refrigerators as electrical goods, penalty under section 45D of the Act has been fastened for want of declaration under section 45A(5) of the Act. In Second Schedule, there is separate and independent entry of refrigerator at serial No. 37 of Part 3 of the Second Sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enefit of the petitioner. The notification (A3) contains list of 34 items. The notification under section 45A contains the names of main items and species coming under the main items have not been named. The list has to be given wider meaning. It was necessary for the petitioner to produce the declaration in case goods were carried in two trucks. The petitioner on one hand submits that it was not necessary to carry the forms and on the other hand contends that forms were carried, in fact declaration forms were not carried, hence no case for interference in the writ petition is made out. Shri Manoj Munshi, learned counsel appearing for the petitioner, has submitted that the refrigerators cannot be covered in the notification dated August 2, 2005 in item 16 which provides for electrical goods, cables and electric wires. In the said notification from entry 1 to 12 words All kinds of have been mentioned but in entry 16 words All kinds of have not been used, thus intention of the notification is confined to the electrical goods and it cannot be applied to the refrigerators. The counsel has referred to certain decisions also, to be referred later. Counsel has submitted that the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down that fully automatic washing machine can be regarded as electronic goods. The concerned notification required that an item can be regarded as an electronic goods if its all functions which are required to be performed by that equipment or appliance are performed or controlled electronically by microprocessor. The functioning of washing machine is automatic. Data is fed into the machine and thereupon it is the microprocessor, which controls and directs the carrying out of the various functions of the machine, which results in the clothes being washed in the desired manner. Even though washing machine is not specifically mentioned as one of the items in State list for purpose of concessional rate of tax on electronic goods. In N.D. Narayanan Nambiar v. State of Kerala [2001] 121 STC 537, the High Court of Kerala considered the question whether mosquito repellants are electrical instruments or not. The court opined that in common parlance view mosquito repellants are not electrical goods. While making the aforesaid observation, it has been observed that refrigerator is working on electricity. In common parlance it is not treated as electrical goods so also grinders an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perature, near, at, or below freezing point, especially in the cold storage of food . The court held that it was not possible to hold that the cooling plant sold by the dealers was a refrigerator within the meaning of item 69 of Schedule B of the Bombay Act. In Deputy Commissioner of Agricultural Income-tax and Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. Chandra Corporation [1976] 37 STC 179, the High Court of Kerala has laid down that water coolers are not refrigerators and, therefore, do not come within the scope of entry 9 of the First Schedule to the Kerala General Sales Tax Act, 1963. Both water coolers and refrigerators are commonly understood in the commercial world as goods serving different purposes. They have popular and distinct meanings. Adopting the common parlance meaning, the aforesaid decision was rendered. In Deputy Commissioner of Sales Tax, Ernakulam v. Equipment Agencies [1981] 47 STC 68, the High Court of Kerala has laid down that the pumpsets, grinders, air-compressors, lathes, etc., which can be worked either with electricity or by diesel or steam power do not fall within the scope of the expression electrical goods . In Karnal Machinery Store ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held to be electrical goods. Motorcar is totally different item as such no parity can be drawn with the refrigerator, thus decision is of no help to the petitioner. Similarly, cases of J.B. AdvaniOerlikan Electrodes Pvt. Ltd. v. Commissioner of Sales Tax [1972] 30 STC 337 (MP) and Commissioner of Sales Tax, Lucknow v. B.C.M. Franklin Co. [1973] 31 STC 251 are with respect to electrodes. The refrigerator being totally different item, no parity can be drawn on the aforesaid decision. In the case of Commissioner of Sales Tax v. Bharat Traders, Bareilly [1974] 33 STC 3 (All) the items involved were wooden gittis, switch-boards and battens, which could be used for different purposes and obviously these items could not be said to be electrical goods. In Star Trading Co. (Private) Ltd. v. State of Bombay [1962] 13 STC 102 the question came before the court was whether the cooling plant used for mercerizing process by textile mill is a refrigerator or not, the question was not whether refrigerator is an electrical goods or not, thus the decision is of no help to the petitioner. In Deputy Commissioner of Agricultural Income-tax and Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claration duly signed by the consignor in such manner, in such form and containing such particulars as may be prescribed. Section 45A(5A) provides that the form of declaration specified in sub-section (5) shall be obtained by a registered dealer in the prescribed manner and on payment of the prescribed fee. Section 45A(6) provides for checking of the declaration and documents. Considering the purpose for which the notification has been issued, we can give (sic cannot give) restrictive meaning to the term electrical goods. The submission raised by the petitioner's counsel that the Second Schedule which has been prepared to further the charging section 9 of the Act provides refrigerator as an independent item for the purpose of taxation at item No. 37 of Part 3 of the Second Schedule whereas electrical goods have been separately shown under Part IV. As different rates have been prescribed for electrical goods and refrigerators, the aforesaid distinction has been made in the Second Schedule, however, the purpose of section 45A is to prevent or check the evasion of tax under the Commercial Tax Act. In the notification issued under section 45A(4) on August 2, 2005 the words us ..... X X X X Extracts X X X X X X X X Extracts X X X X
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