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TMI Blog2011 (8) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... less reception instrument and apparatus and, therefore, would fall within entry 49 of Schedule II of the M.P. Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (hereinafter referred to as "the Act"). The petitioner has also assailed the validity of the order of assessment dated June 25, 2007 (annexure P2) and order dated April 29, 2008 (annexure P4) passed in revision by the Additional Commissioner, Commercial Tax by which the order of the assessing authority has been upheld. Facts giving rise to filing of the instant petition, briefly stated, are that the petitioner is a dealer and imports cellular phones from outside the country. The petitioner filed the return claiming the tax payable as nil, on the ground that the goods, i.e., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry 49 of entry 53 of Schedule II of the 1976 Act so as to attract the levy of tax at the rate of one per cent under the Act. Shri H.S. Shrivastava, learned senior counsel for the petitioner, submitted that mobile handset cannot be held to be covered under entry 49 of Schedule II and cannot be treated as wireless reception instrument and apparatus. Our attention was drawn to the distinction between wireless reception instrument and cellular phone while referring to the written submission filed before the revisional authority. It has been argued that wireless reception instrument can be operated without sim, whereas in order to operate cellular phone, a sim has to be inserted in the handset. The entry with regard to wireless reception inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rbitrary and are bad in law. On the other hand, Shri Kumaresh Pathak, learned Deputy Advocate- General, has submitted that that entry 49 in Schedule II of the 1976 Act is wide enough to include mobile handset, alternatively, it would fall under entry 53 being electronic and electrical goods. It has been further submitted that rate of tax under both the entries, i.e., entry 49 and entry 53 is same. At this stage, it would be appropriate to reproduce the relevant entry: "49. Wireless reception instruments and apparatus radios and radio gramophone, television, VCR, VCP, tape recorders, transistors and parts and accessories thereof." It is well-settled rule of statutory interpretation that the court is free to apply current meaning of statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll cover such device and equipment. Thus 'notice in writing' required by section 138 of the Negotiable Instrument Act, 1881, which was inserted in 1968 when Facsimile (Fax) had become (sic come in) vogue was held to include notice transmitted by fax." In Tata Teleservices Limited v. Bharat Sanchar Nigam Limited [2008] 10 SCC 556, the Supreme Court had an occasion to deal with the issue, namely-a fixed service provided through wireless local loop, whose operation was not confined to subscriber's premises, could be treated as mobile service. It was held that since services provided through "Walky" extended beyond the subscribers premises, it was a mobile service. It was further held that wireless is a term used to describe teleco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s may, at any time, or (ii) if any question is raised by a dealer in respect of the rate of tax on any goods shall, within six months from the date of receipt of the application made by the dealer for this purpose in the prescribed manner and on payment of such fee as may be prescribed, make an order determining the rate of tax on such goods in accordance with such procedure as may be prescribed." Thus from a perusal of sub-section (1) of section 70 it is apparent that the Commissioner either on his own motion on any question in respect of the rate of tax on any goods or if any question is raised by dealer in respect of the rate of tax on any goods, shall within six months from the date of receipt of the application made by dealer, make a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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