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2015 (4) TMI 963 - MADRAS HIGH COURT

2015 (4) TMI 963 - MADRAS HIGH COURT - [2015] 86 VST 136 (Mad) - Classification - Applicable rate of tax - whether the windscreen glasses sold by the assessee fall under Entry 11 Part E of the I Schedule, taxable at 12% or under Entry 43(ii) of Part D of I Schedule of the Tamil Nadu General Sales Tax Act, taxable at 8% - Held that:- reasoning of the Appellate Assistant Commissioner appears to be more appropriate in the facts of the present case, who has applied the user theory, more particularly .....

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nt case also, Entry 43(ii) of Part D of I Schedule specifically deals with parts and accessories of motor vehicle, while Entry 11 of Part E of I Schedule deals with general glass and glasswares. When there is a specific entry in the statute, the same should be applied while making the assessment. It is not in dispute that the assessee is a dealer in automobile glasses and has supplied their goods to the automobile manufacturers - Decided in favour of assessee. - Tax Case (Revision) No.2013 of 20 .....

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,594/- respectively for the assessment year 1992-93 under the Tamil Nadu General Sales Tax Act. During inspection, stock discrepancy was noticed to the value of ₹ 51,484/- and hence, the Assessing Officer estimated the suppression to the value of ₹ 1,02,968/-. The Assessing Officer has also included the forwarding charges in the taxable turnover amounting to ₹ 41,830/-. The Assessing Officer has also not accepted the rate of tax adopted by the dealers at 8% and determined to ta .....

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12%, thereby partly allowed the appeal holding as follows: "The last point of dispute relates to the turnover of ₹ 1,18,629/- which was assessed to tax at 12% by the assessing authority under entry 11 of part E of first schedule while the appellant contend that the goods sold fall under entry 43(ii) of part D of first schedule. The reason adduced by the learned assessing authority for assessing this turnover at 12% is that as per the amended fist schedule entry under item 11 of part E .....

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assessing authority are not acceptable as the learned assessing authority did not prove that the appellant had sold items other than automobile glasses and he was carried away by the amended entry without having consideration to the usage theory. In fact, the learned assessing authority himself had assessed the turnover at 8% classifying the item as first sales of autoglass. It is an admitted fact that the appellant are primarily dealers in automobile glasses and their supplies were mostly to au .....

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hese facts and applying the user theory, the stand of the learned assessing authority is found to be not sustainable. The assessing authority is directed to assess the turnover of ₹ 1,18,629/- at 8%. 17. In conclusion, the appeal is partly allowed, partly dismissed and partly modified." 4. Finding that the order of the Appellate Assistant Commissioner was prejudicial to the interest of the Revenue, in exercise of power under Section 34 of the Tamil Nadu General Sales Tax Act, the Join .....

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ee, the Joint Commissioner took a different view and came to hold as follows: "A comparison of the old Entry 102 and Entry 11 of Part -E will made things clear. The entry available in 11(1) viz., Flat Glass, including sheet glass, wired glass and rolled whether in the form of plate glass figured glass or in any other form coloured glass, cooler glass toughened glass; laminated safety glass, tinted glass will include the windscreen of any size sold either to Car, Bus or Lorry. Therefore, App .....

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rused the materials placed before this Court. 7. The short issue that arises for consideration in this revision is whether the windscreen glasses sold by the assessee fall under Entry 11 Part E of the I Schedule, taxable at 12% or under Entry 43(ii) of Part D of I Schedule of the Tamil Nadu General Sales Tax Act, taxable at 8%. 8. Since the issue involved in this revision centers around classification of goods, for better clarity, both the Entries in the I Schedule, viz., Entry 43(ii) in Part D .....

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glass, wired glass are rolled whether in the form of plate glass, figured glass or in any other form, coloured glass, cooler glass, toughened glass, laminated safety glass, tinted glass;12%, 12.3.93 9. Having gone through the relevant entries, we find that the reasoning of the Appellate Assistant Commissioner appears to be more appropriate in the facts of the present case, who has applied the user theory, more particularly in a case where the goods sold is specifically parts and accessories of .....

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