TMI Blog2014 (9) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... separate and distinct. Notification dated December 31, 1975 was issued for the purpose of one per cent tax upon non-ferrous rods, pipes, strips, section, sheets, circles and tubings but aluminium foil was not included in the above commodities and another notification was issued on June 13, 1985 which was not in continuance of aforesaid notification dated December 31, 1975 but it was separate notification granting time-bound exemption in tax upon aluminium foil. Therefore, all the judgments cited by learned counsel for the petitioners do not support the plea taken by the petitioner-assessee for the purpose of taking advantage of notification dated December 31, 1975. With regard to non-applicability of the notification dated June 13, 1985 for the reason that it has not been issued in supersession of the earlier notification dated December 31, 1975, yet another baseless ground has been taken by the petitioner-assessee because the general tax is at the rate of four per cent and exemption is granted for some of the goods as per their use vide notification dated December 31, 1975 purposely; and, later on, for five years the said exemption was granted for aluminium foil vide notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case, it is appropriate to observe that after marathon of litigation, the co-ordinate Bench of this court delivered a judgment on January 8, 2007 in S.B. Civil Sales Tax Revision No. 1274 of 2002 and other revisions which is Commercial Tax Officer, Pali v. P.G. Foils Limited reported in 116 Tax Update 17, Pt. 3. In that judgment, the orders passed by the Tax Board dated February 8, 1999, February 27, 2002 and June 15, 2002 were under challenge. The co-ordinate Bench remitted the matter to the Tax Board vide aforesaid judgment and following directions were given for deciding the controversy involved in this case : In these facts and circumstances, it appears that the very foundation of the order dated February 8, 1999 is the additional evidence produced by the assessee and the pleas taken by the assessee on the basis of those documents and the Tax Board relied upon those documents without affording an opportunity of hearing to the Revenue nor gave any opportunity to the Revenue to produce evidence to rebut the documentary evidence by the assessee and the Tax Board's order dated February 8, 1999 is based on the evidence produced by the assessee, therefore, only on this grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material illegality and irregularity, therefore, the appeals which were decided by the order dated February 8, 1999, shall also stand revived by this order and the Tax Board may consider the evidence in those revisions after affording opportunity to the Revenue to rebut the evidence. Both the parties are directed to appear before the Tax Board on February 19, 2007. After remand by the co-ordinate Bench of this court, the Rajasthan Tax Board finally decided the controversy vide the impugned judgment dated December 31, 2009 and held that aluminium foil is not included in the non-ferrous sheets notified in the notification dated December 31, 1975, therefore, inter-State sales tax is required to be paid at the rate of four per cent instead of at the concessional rate of one per cent because the aluminium foil does not fall in any of the categories enumerated in the notification dated December 31, 1975. In this revision petition, the assessee is challenging the validity of the judgment rendered by the Tax Board on remand dated December 31, 2009 on various grounds. All the assessees are manufacturers of aluminium foil and they are claiming that aluminium foil falls under the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by reason of the technology the name of the end-product may change but the basic nature and quality of the product still remains the same. Mere act of pressing and thinning of the non-ferrous sheets does not bring into existence a new commodity. The process involved in making the aluminium foil is not manufacture, therefore, the word sheet used in the notification dated December 31, 1975 covers all kinds and types of sheets. Further, it is submitted that the Revenue failed to adduce any evidence to discharge their burden to establish that aluminium foil is not a non-ferrous sheet and is a different and distinct commodity, therefore, the impugned judgment deserves to be quashed. The learned counsel for the petitioner submits that the Tax Board has committed serious error while ignoring the fact that the entry non-ferrous rods, pipes, strips, section, sheets, circles and tubings takes in it even thinner forms of non-ferrous sheets known as aluminium foil. The word sheets is used in plural and generic sense, therefore, every conceivable type of sheet shall be covered by the said entry because the entry nonferrous sheets as long as the commodity retains its essential charact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd as per notification dated December 31, 1975 the assessee is required to pay one per cent sales tax because the aluminium foil is non-ferrous sheet as enumerated in the notification dated December 31, 1975. For issuance of the subsequent notification dated June 13, 1985 by the State Government under section 8(5) of the Central Sales Tax Act, in which, the rate of tax at one per cent upon inter-State sale for a period of five years, it is submitted by learned counsel for the petitioner that the same cannot apply in the present facts and circumstances, therefore, the Department cannot agitate that prior to notification dated June 13, 1985 aluminium foil did not fall under notification dated December 31, 1975. Contention of the learned counsel for the petitioner is based upon the reason that as per preamble clause of notification dated June 13, 1985, it appears that it has not been issued in supersession of the earlier notification dated December 31, 1975. It is contended that the notification dated December 31, 1975 covers all types of sheets and forms including aluminium foil within its ambit whereas issuance of the subsequent notification dated June 13, 1985 being specific in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dictionary meaning; and, further, for the reason that after following the process although the nomenclature becomes changed known as aluminium foil but, in fact, it does not change its character, therefore, the finding of the Tax Board deserves to be quashed. The learned counsel for the petitioner invited attention of the court towards number of judgments to substantiate his arguments. Following judgments are relied upon by learned counsel for the petitioner: Aluminium foil is thin 'sheet': (1) State of Gujarat v. Sakarwala Brothers [1967] 19 STC 24 (SC). (2) State of Gujarat v. Shah Veljibhai Motichand [1969] 23 STC 288 (Guj). (3) Indian Carbon Ltd. v. Superintendent of Taxes, Gauhati [1971] 28 STC 603 (SC). (4) State of Andhra Pradesh v. Sri Durga Hardware Stores, Vijayawada [1973] 32 STC 322 (AP). (5) Commissioner of Sales Tax v. Voltas Ltd. [1977] 39 STC 409 (Bom). (6) Alladi Venkateswarlu v. Government of Andhra Pradesh [1978] 41 STC 394 (SC) (7) Super Diamond Tools v. State of Gujarat [1980] 46 STC 129 (Guj). (8) Khanna Coke Industries v. Assistant Commissioner (Judicial) Sales Tax [1987] 64 STC 335 (All); [1978] Tax Law Reporter 2129 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been given by the Tax Board that the petitioner's commodity which is aluminium foil does not fall in any of the entry notified vide notification dated December 31, 1975. Further, it is submitted that in the year 1985 only for five years exemption was granted for levying tax at the rate of one per cent vide notification dated June 13, 1985, in which, it was specifically mentioned that with immediate effect the tax payable under sub-section (1) of the said section by any dealer, having his place of business in the State, in respect of the sale by him from any such place of business in the course of inter-State trade of aluminium foils shall be calculated at the reduced rate of one per cent; meaning thereby, vide notification dated June 13, 1985 exemption was granted for five years only and except for the said period of five years the assessee is required to pay tax at the rate of four per cent which is general rate of tax upon the said commodity. A plain reading of notification dated June 13, 1985 reveals that purposely the said notification was issued for granting some exemption for the business in the State in respect of sale of inter-State trade of aluminium foil for five ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x at the concessional rate of one per cent or the separate notification dated June 13, 1985 will apply for the purpose of levy of tax upon the aluminium foil . For adjudicating the controversy in question, the intention of the Legislature is required to be seen because purposely the Legislature has not included the commodity aluminium foil in the notification dated December 31, 1975 at the time of granting exemption, then, obviously on the basis of interpretation the assessee is claiming that he is liable to pay one per cent tax for sale of aluminium foil which is based upon his own interpretation. In this case, although number of grounds have been taken by the petitioner-assessee to put forth his case that his product aluminium foil should be treated as covered under the notification dated December 31, 1975. It seems that by interpretation or upon his own method incorporated in the grounds by the petitioner-assessee the assessee is claiming his right that he is not required to pay sales tax at the rate of four per cent and his product aluminium foil is covered under the notification dated December 31, 1975 but the petitioner-assessee cannot be permitted to completely ignor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some books of unwholesome nature are published, some books are political, social and there are different types of books made available to the public at large for their individual and general taste. The fact, however, remains that the outcome of the words is from the letters of the alphabet. But, it does not mean that all the books should be treated similar in nature. Therefore, the argument of learned counsel for the petitioner that after manufacturing aluminium foil it does not lose its own character and on the basis of use it should not be treated as different commodity than aluminium sheet is totally baseless. The learned counsel for the petitioners cited so many judgments to substantiate his argument that mere change in the shape by pressing aluminium sheets does not change the essential characteristics to become aluminium foil which does not change the commodity and initial characteristics of the aluminium sheet which is included in the notification dated December 31, 1975. It is true that a notification was issued on December 31, 1975 whereby specific exemption was granted to levy one per cent rate of tax upon sale of non-ferrous rods, pipes, strips, sections, sheets, circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to adjudication made by the honourable Supreme Court that mere change in the shape by mechanical pressing does not change the commodity and the commodity continues to hold the essential characteristics. Here, in the instant case, specifically a separate notification was issued for aluminium foil because it is used for packing purposes, therefore, if any aluminium sheet after processing created a new purpose for use then the Legislature can prescribe separate tariff for the use of that commodity. Here, in this case, both the aforesaid notifications are separate and distinct. Notification dated December 31, 1975 was issued for the purpose of one per cent tax upon non-ferrous rods, pipes, strips, section, sheets, circles and tubings but aluminium foil was not included in the above commodities and another notification was issued on June 13, 1985 which was not in continuance of aforesaid notification dated December 31, 1975 but it was separate notification granting time-bound exemption in tax upon aluminium foil. Therefore, all the judgments cited by learned counsel for the petitioners do not support the plea taken by the petitioner-assessee for the purpose of taking advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue but forced to contest the litigation before the court upon totally baseless grounds of the petitionerassessee. The contention of the petitioner that the meaning of dictionary was to be taken by the Tax Board for the purpose of assessing the petitioner's right is also not tenable because once the Legislature purposely did not include aluminium foil in the entry of notification dated December 31, 1975, then, obviously the petitioner cannot claim benefit under notification dated December 31, 1975 on the ground that interpretation must be as per the dictionary meaning and not as per the intention of the Legislature. Therefore, there is no substance in the argument of learned counsel for the petitioner that the Tax Board has ignored the meaning of the words sheets and foil . With regard to non-applicability of the notification dated June 13, 1985 for the reason that it has not been issued in supersession of the earlier notification dated December 31, 1975, yet another baseless ground has been taken by the petitioner-assessee because the general tax is at the rate of four per cent and exemption is granted for some of the goods as per their use vide notification dated Dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
