TMI Blog2014 (5) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... e, as automobiles component - So too the use to which the top hat section has been put into cannot be taken as a decisive factor for the purpose of understanding the width of the entry which is general in character - It is hold that the item in question is taxable as declared item under Entry 4 - The fact that the assessee had admittedly sold the top hat section to the automobile industries would not in any manner be a decisive test for the purpose of understanding the entry and rate of tax to be applied to the case on hand - Going by the entry, order of the Tribunal is set aside. Levy of penalty – Held that:- even though the Tribunal upheld the levy of penalty upto 75%, admittedly, the same was with reference to other heads of taxation - The Tribunal had cancelled the levy of penalty with reference to the non-inclusion of the turn over relating to top hat section - The penalty thus imposed at 75% instead of 150% however stands confirmed as no serious dispute is raised on this aspect -Revision) is allowed – Decided in favour of Assessee. - Tax Case (Revision) No.1855 of 2008 - - - Dated:- 6-9-2012 - Chitra Venkataraman And K. Ravichandrabaabu,JJ. For the Petitioner : M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , who confirmed the assessment. This led the assessee to go on further appeal before the Sales Tax Appellate Tribunal. 3. On a consideration of the scope of the Entry as well as how the assessee had dealt with in its return, the Tribunal pointed out that as admitted by the assessee, the top hat sections manufactured by them was sold only to automobile industries, even though the said item had various structural purposes. Going by the materials placed before the Tribunal, it held that it was evident that the top hat sections were designed and manufactured and sold only to the automobile industries and not for any other purpose. The Tribunal further pointed out that though the top hat section could not be said to be an accessory of motor vehicle, yet in the absence of any proof to the contrary, manufactured items being used only by automobile industries, the same could not be brought under II Schedule and hence, the same was rightly assessed as an item falling under the I Schedule. In so coming to this conclusion, the Tribunal referred to an earlier judgement rendered by it in T.A.No. 157/93 dated 27.5.1997 in the assessee's own case viz., TUBE INVESTMENTS OF INDIA LIMITED v. THE S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vy of penalty. Aggrieved by the order of the Tribunal, present revision by the assessee. 5. Learned counsel for the assessee while taking us through Entry 4 of the II Schedule submitted that barring sub Entry (xiv), other sub Entries in Entry 4 are general entries. There are no words of restriction to be read into the above entry, particularly in sub entry (v) of Entry 4 dealing with "steel structurals, angles, joists channels, tees, sheet pilling sections, Z section or any other rolled sections, to hold that it applied only to steel structures used in fields other than automobile. In other words, he submitted that being a general entry, the test as to whether particular goods would fall under the Entry would not be with reference to usage to which the steel structurals are put into. Learned counsel for the assessee referred to the Central Excise Tariff of India 1989-90 under Entry 7215.20 7216.20 and the Harmonised commodity description and coding system referring to the products in the heading which stated as follows:- "The heavier angles, shapes and sections (eg. Girders, beams, pillars and joists) are used in the construction of bridges, buildings, ships, etc., lighter pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UBE INVESTMENTS OF INDIA LIMITED v. D.C.T.O., this Court had an occasion to consider almost a similar issue. It may be noted that the petitioner in the decided case is none other the present petitioner, who is now known as Tube Investments of India Limited. The assessee in the reported decision is engaged in the manufacture of tubes, bicycles parts, machinery etc. It dealt with the steel tubes, both welded and seamless, of all diameters and lengths, including tube fittings. It supplied exhaust pipes to M/s. Ashok Leyland according to the specification given by the buyer, which were to be fitted into the trucks after certain process done by the buyer. The assessee claimed the sale of exhaust pipes as declared goods falling under Entry 4(xi) of the II Schedule of the Tamil Nadu General Sales Tax Act. The Assessing Authority treated the item in question as part of accessory of a motor vehicle falling within the scope of Entry 3 of the First Schedule and taxable at 15%. Referring to the decision of the Apex Court reported in 74 STC 176 GUJARAT STEEL TUBES LIMITED v. STATE OF KERALA, AIR 1990 SC 616 -BHARAT FORGE AND PRESS INDUSTRIES (P) LTD v. COLLECTOR OF CENTRAL EXCISE, AIR 1985 SC 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t may be noted in the decision rendered by this Court in 52 STC 94 T.I. M. SALES LIMITED v. STATE OF TAMIL NADU while dealing with rolled steel sections, under Entry 4(d) (iv) of the II Schedule to the Tamil Nadu General Sales Tax Act, this Court pointed out that there is absolutely no reference at all in the entry as regards the use to which the steel sections are to be put to use. In the circumstances, any meaning that has to be given to the words "rolled steel sections" as found either in the Central Sales Tax Act or the Tamil Nadu General Sales Tax Act or the consideration of the question as to whether any article falls within the meaning of the words "rolled steel sections" found in section 14(iv)(d)(iv) of the Central Sales Tax Act or item 4(d)(iv) of the Second Schedule to the Tamil Nadu General Sales Tax Act does not depend upon the user to which the rolled steel sections are put to. In the absence of anything in the language of the entry, warranting restricted construction, the entries have to be read in generic manner. Thus, we find the decisions of this Court referred to above, concludes the issue on hand. 12. The said view was once again considered by this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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