TMI Blog2010 (9) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated June 15, 2007, passed by a learned single judge of this court in W.P. (C) No. 114 of 2000 and W.P. (C) No. 355 of 2006. The short question, involved in the said writ petitions, was whether the item pea gravel is a taxable item, under the Tripura Sales Tax Act, 1976 (for short, the TST Act ) as well as the Tripura Value Added Tax Act, 2004 (for short, the TVAT Act ) or not. The learned single judge, by the said common judgment and order, disposed of the writ petitions, deciding thereby that the item pea gravel is a taxable item under the TST Act with effect from February 28, 2000, i.e., after the insertion of the word gravel , by the Tripura Sales Tax (8th Amendment) Act, 2000, in the Schedule of the chargeable items, attached to the Act and that the said item is not a taxable item under the TVAT Act, 2004. Challenging the decision, reached in W.P. (C) No. 114 of 2000, that pea gravel is a taxable item, under the TST Act, with effect from February 28, 2000, the writ petitioner, Sri Samir Ghosh, has preferred the appeal, being W.A. No. 59 of 2007. On the other hand, aggrieved by the finding and the decision of the learned single judge, rendered in W.P. (C) No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r with the writ petitioner, for supply of 1000 cms. pea gravel (from Durgapur, West Bengal) of approved quality of size ranging over 2.00 mm. to 4.75 mm. (best quality) at Agartala. Accordingly, as ordered, the writ petitioner made all arrangements for supply of pea gravel . In the first week of September, 2006, respondent No. 3 informed the petitioner that the petitioner would be required to pay tax under the TVAT Act. Though the petitioner informed respondent No. 3 that pea gravel is not a taxable item under the TVAT Act, respondent No. 3 continued to charge tax at 12.5 per cent under the TVAT Act. Being aggrieved, the writ petitioner, seeking to invoke the writ jurisdiction of this court under article 226 of the Constitution of India, approached this court by filing a writ petition, which was registered as W.P. (C) No. 355 of 2006. The respondents contested the writ petitions, by filing an affidavit-inopposition, rebutting the contentions, raised in W.P. (C) No. 114 of 2000. The respondents, in their affidavit-in-opposition, contended, inter alia, that, though the item gravel was not included in entry No. 29 of the Schedule of taxable goods, prior to the 8th amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gravel , is known by the term pea gravel itself and, therefore, the term gravel does not include or mean pea gravel . Referring to the decision rendered in the case of Shri Chitta Ranjan Saha v. State of Tripura [1990] 79 STC 51 (Gauhati); [1989] 2 GLR 101, learned senior counsel, appearing for the private appellant, has submitted that in the said case, a Division Bench of this court has held that pea gravel is not stone or sub-product of stone under entry No. 29 of the Schedule of taxable goods attached to the TST Act and as such, the same is not taxable. The learned senior counsel, referring to Shri Chitta Ranjan Saha [1990] 79 STC 51 (Gauhati); [1989] 2 GLR 101, further submitted that, in view of the said decision, wherein the State of Tripura was a party, it was clearly made known to the State authority that pea gravel , was not a taxable item. Therefore, it is submitted, that as the State of Tripura, being aware of the said findings/decision, did not include the item pea gravel by its specific name, the Legislature must be taken to have intentionally omitted the said item from the list of the taxable items/ goods. It is also contended that if the Legislature had any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Advocate submitted that, by the said order, the writ petitioner was asked to supply pea gravel of approved quality of particle size range over 2.00 mm. to 4.75 mm. The learned Additional Government Advocate, referring to clauses 2 and 3 of the terms and conditions of the said work order, pointed out that, in the said work order, the term gravel of specific size was used. It is submitted, by the learned Additional Government Advocate, that gravel can be of various sizes and shapes and its utility is determined as per its size and shape. It is also submitted that gravel is a genus, while, the pea gravel is its species and as such, the term gravel , appearing at entry No. 28 of the TST Act, included pea gravel also. Referring to the petrography report, received from the Geological Survey of India, NER, Shillong, the learned Additional Government Advocate further summed that pea gravel is nothing but a natural stone of small dimension and as such, the item any other natural stone appearing at entry No. 67(iv) of TVAT Act included and implied pea gravel also. The learned Additional Government Advocate, referring to the entry No. 193 of the Schedule 11(b) of the TVAT A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gravel, whether it is pea gravel or gravel , (i.e., general gravel of any size) was not included as taxable goods in the list of taxable goods prior to February 28, 2000. However, by the 8th Amendment, i.e., with effect from February 28, 2000, the item gravel and stones have also been included at entry No. 28 of the list of taxable goods. The mentioning of both stone and gravel as separate items indicates that the law-maker, by using the said terms, specifically indicated that gravel and stone were two different items, i.e., one did not mean the other. Therefore, it can be concluded without any difficulty that prior to February 28, 2000, pea gravel or gravel were not taxable items. But after the 8th amendment, i.e., after February 28, 2000, the item gravel has been included in the list of taxable item making it, thus, taxable with effect from February 28, 2000. In the case of Sri Samir Ghosh v. State of Tripura [2004] 3 GLR 602, a learned single judge of this court referred to the following definition of gravel as provided in Engineering Materials by Surendra Singh. The definition reads as follows: 1.12.12. Gravel. These are water worn pebbles of any kind of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied. A careful reading of the said supply order indicates that the order was, in fact, for supply of gravel of a particular shape and size and for the purpose of identifying the shape and size; the same was named as pea gravel. In the said order, the approximate measurement of the gravel, required to be supplied, was mentioned thereby making it clear that gravel of the given size was required to be supplied. Therefore, a combined reading of the supply order as well as the above definition clearly indicates that pea gravel is a smaller type of gravel with certain specification in respect of its size. In view of the above, there is no difficulty in understanding gravel is a genus, while pea gravel is its species. Therefore, gravel includes, pea gravel and pea gravel was taxable under the TST Act with effect from February 28, 2000. The second point, raised before us, is whether pea gravel is a taxable item under the TVAT Act. Admittedly, the TST Act has been repealed by the TVAT Act. Schedule II(b) to the TVAT Act contains a list of goods taxable at the rate of 12.5 per cent. Entry 67 of Schedule II(b), amongst others, contains the following items: (iv) Bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, subject to conditions and exceptions set out therein. In view of the above, except the goods, which are specified in Schedule III to the Act sale of all other goods is liable to be taxed under the TVAT Act. Section 7 of the Act provides for the rate of tax. By the said section 7, it has been provided that the value added tax payable by a dealer, under the Act, shall be levied on his taxable turnover at such rate as specified in Schedules II(a), II(b) and II(c), subject to such conditions as the Government may, from time to time, impose. From a conjoint reading of the provisions of sections 5, 7 and 8 along with the Schedules II(a), II(b) and II(c), it is clear that all goods, other than the goods specifically exempted under Schedule III, are taxable under the TVAT Act. Entry No. 193 of Schedule II(b) of the Act is a residuary entry, which provides that the items, which are not covered in any other Schedule, shall be taxable under Schedule II(b) at the rate of 12.5 per cent. The item pea gravel is not included in the list of exempted goods as per Schedule III of the Act. The said item is also not covered by any other Schedule of taxable goods, namely, Schedule II(a), I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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