TMI Blog2011 (6) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... viii) of the entry at serial No. 54B of Part I of Schedule C of the West Bengal Value Added Tax Act, 2003 (in short, the VAT Act ) as claimed by the petitioner and whether the Revenue was justified in determining the interest and issue of demand notice thereafter on the disputed amount of unpaid tax in terms of the provisions of section 33 of the VAT Act. The petitioner is a reseller of various items like vacuum cleaners, sweeping machines, scrubber drivers, lawn mowers, high pressure jet cleaners, ride-on sweeping and scrubbing machines, etc. (hereinafter referred as, disputed items ) by procuring such goods from outside West Bengal by way of stock transfer. In the assessment of the petitioner for the period fourth quarter ending Marc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apex court in the case of State of Maharashtra v. Bradma of India Ltd. [2005] 140 STC 17 (SC), wherein it has been observed that invoking of residuary entry can be resorted to only if all other entries in all other Schedules, however liberally construed, fail to cover a particular item of goods. The issue involved in the instant case is about interpretation of the true ambit, scope, effect and purport of item (xxviii) of the entry at serial No. 54B of Part I of Schedule C of the VATAct. The entry 54B relates to plant and machinery and item (xxviii) thereof being residuary in nature applied to all other machinery not specified in items (i) to (xxvii) of such entry. Unless the machinery entry together with the item (xxviii) failed to cover t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e v. M.N.V. Rao [1964] 15 STC 540 (Mys), State of Karnataka v. Sanjiv Mehra [1990] 79 STC 372 (Karn), Orissa Agro Industries Corporation Limited v. State of Orissa [1993] 90 STC 571 (Orissa), Commissioner of Sales Tax v. Gangadhar Sitaram [1975] 35 STC 357 (Bom), Commissioner, Sales Tax, U.P., Lucknow v. Chandok Traders [1973] 32 STC 614 (All), Industrial Machinery Manufacturers Pvt. Ltd. v. State of Gujarat [1965] 16 STC 380 (Guj), Premier Irrigation Equipments Pvt. Ltd. v. Assistant Commissioner of Commercial Taxes [1993] 88 STC 468 (Karn) and RN of 2009, wherein competent courts of law had held items of goods as varied as oilengine, generator, air-blowing instrument, Collage-basin, door closure, hair clippers, humidifiers, sprayer, sprin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay interest for the amount of tax unpaid. The impugned determination of interest and demand thereof was thus bad, unauthorised and unwarranted. Sri B. Majumdar, learned State Representative appearing on behalf of the Respondent authorities, contested the application on the ground that the disputed items dealt by the petitioner were nothing, but machines used for cleaning purpose and as such could not be treated at par with the item plant and machinery as covered by entry 54B of Part I of Schedule C of the VAT Act. He strongly relied on the affidavit-in-opposition filed by respondent No. 1 on behalf of all the respondents including himself. It was submitted by him that under the VAT Act, 2003, entry 54B of Part I of Schedule C appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort-paid, it was submitted on behalf of the respondents that the short-payment of tax arose due to application of rate of tax at wrong rate, i.e., at four per cent instead of at 12.5 per cent. Although the petitioner had paid due tax as per return, the short-payment of tax was assessed and determined by respondent No. 1 based on facts and law and not as per his best judgment. Levy of interest on such short-payment was thus made rightly and was sustainable in the eye of law. We have heard rival contentions of both sides and duly perused the relevant materials available in records, and also the literature produced for the disputed items at the time of hearing. Admittedly there is no dispute about the disputed items being machines. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
