TMI Blog2015 (3) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... hat since pea-gravel is not included in the list of exempted goods and also not covered by any other item in any of the other Schedules, the same would fall under entry No. 193 of Schedule II(b) of the TVAT Act. Excessive delegation of power - The Legislature in its wisdom decided to frame the statute in such a fashion that the exempted items are specifically mentioned in Schedule III. The necessary corollary is that all items not mentioned in Schedule III would be taxable. The rates of tax as already pointed out above are mentioned in the different Schedules. Schedule II(b) levies the highest rate of tax and the Legislature in its wisdom decided that all items which do not find mention in any other Schedule would be part of entry No. 193 of Schedule II(b) and tax would be levied at the highest rate. Therefore, there is no excessive delegation because it is Legislature which has fixed the rate of tax and no discretion has been left with the authorities as to which items are to be included in which Schedule. Any item not forming part of Schedule II(a), II(c), II(c)(i) and II(d) will be exigible to tax at the rate mentioned in Schedule II(b). - no merit in the review petition or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pea-gravel. This is a form of gravel, which is small in nature and primarily used as a filtration agent in tube-wells. Under the Tripura General Sales Tax Act, 1976 (hereinafter referred to as the TST Act ), there was no entry covering gravel and pea gravel was sought to be brought within the ambit of the TST Act by including it in the definition of stones, chips, etc. This was challenged by an assessee by filing a writ petition and a Division Bench of the Gauhati High Court held that pea-gravel was a totally different item from stone and, therefore, could not be included in the entry with regard to stone. The judgment of the Gauhati High Court in Shri Chitta Ranjan Saha v. State of Tripura as reported in [1990] 79 STC 51 (Gauhati); [1989] 2 GLR 101 and the court held thus (page 55 in 79 STC): 29. Bricks, brick-bats, jhama, metals, stone chips, any other products or sub-products arising out of bricks or stones and tiles (kiln burnt) other then mosaic (masonry tiles). 3. Thereafter the TST Act was amended by the State of Tripura and gravel was included in the Schedule as one of the items which could be taxed. The petitioner then filed another writ petition being W.P. (C) No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that pea gravel was taxable under the TST Act with effect from February 28, 2000 but not taxable under the TVAT Act. 5. The assessee-petitioner was satisfied with this judgment and did not challenge the same. The State of Tripura however, filed an appeal being Writ Appeal No. 79 of 20071 which was decided in favour of the State by the learned Division Bench and this judgment is sought to be reviewed. 6. A bare perusal of section 7 of the TVAT Act shows that all goods which are sold within the State of Tripura are exigible to levy of value added tax, unless the goods are exempted in terms of Schedule III or the sale has taken place in the course of inter-State trade or commerce or if the sale has taken place outside the Tripura or it amounts to import or export of goods outside the territory of India. There are other sections with which we are not concerned. 7. The rate of taxes are provided for in section 7 which reads as follows: 7. Rate of tax.-The value added tax payable by a dealer under this Act shall be levied on his taxable turnover at such rate as specified in the Schedules II(a), II(b), II(c), VI, VII and VIII. Schedule II(a) is the list of goods taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was the last item covered by Heading No. 38.23. The said Heading No. 38.23 is only a residuary heading covering residual product of chemical or allied industries 'not elsewhere specified or included'. In the present case since the goods were covered by a specific heading, i.e., Heading 25.01, the same cannot be classified under the residuary heading at all. This position is clearly laid down in rule 3(a) of the Interpretative Rules set out above. As per the said interpretative rule 3(a), the heading which provides the most specific description shall be preferred to the heading providing a more general description. This position is also well settled by a number of judgments of this court. Reference may be made to Bharat Forge and Press Industries (P) Ltd. v. Collector of Central Excise [1992] 84 STC 414 (SC); [1990] 1 SCC 532 . It was observed in para 4, inter alia, as under (page 534 of [1990] 1 SCC and page 415 of [1992] 84 STC): '4. The question before us is whether the Department is right in claiming that the items in question are dutiable under tariff entry 68. This, as mentioned already, is the residuary entry and only such goods as cannot be brought under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 285 of the Constitution of India in as much as even those items which are not exigible to tax by the State can be brought within the ambit of the TVAT Act. Sri Biswas has drawn our attention to the judgment of the Privy Council in Bank of Chettinad Ltd. v. Commissioner of Income-tax, Madras [1940] 8 ITR 522 (PC); AIR 1940 PC 183 wherein the Privy Council reiterated the well-known passage from the opinion of Lord Russell of Killowen and held as follows (page 526 in 8 ITR): . . . the principle of all fiscal legislation, it is this: if the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be. It is apparent that in fiscal legislation such as taxing statute the Court cannot go into the question whether tax is reasonable or unreasonable, it can only decide whether the Legislature had the competence to levy the tax or not. Only in the case of levy of fee can the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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