TMI Blog2015 (9) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... anty and D.P. Choudhury, JJ. For Petitioner - Mr. M.S. Raman (S.S.C.)(C.T) For Opp. Parties None JUDGMENT The petitioner assails the impugned order dtd.12.11.2013 U/s.24 of the Orissa Sales Tax Act (hereinafter called the Act) passed by Orissa Sales Tax Tribunal, Cuttack in S.A. No.706 of 2008-09. 2. Succinctly, the case of the petitioner is that the opposite party being a registered dealer carries on business in manufacturing and sale of Linear Low Density Polythene Bags (in short L.L.D.P.E) during the year 2002 to 2003. It is alleged inter alia that the opposite party filed Sales Tax return U/s.12(4) of the Act showing said material vide Entry No.129 of list C . The learned Assessing Authority by observing in its Assessment Order that such commodity being fallen to Entry No.136 under list C is exigible to sale tax at the rate of 8% under Entry No.136 of the Act instead of Entry No.129 of the Act. 3. It is further alleged by the petitioner that opposite party preferred 1st Appeal before the Assistant Commissioner of Sales Tax (Appeal) (in short A.C.S.T). The First Appellate Authority confirmed the Assessment Order ex-parte on 25.11.2008. Against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion can be substituted. He relied on the decision reported in 2005 (181) ELT 154 Supreme Court (CCE Vrs. Sunder Steels Ltd.). It is further submitted that the commodity, namely, LLDPE being not specifically mentioned in taxable list, learned Tribunal ought not to have interfered with the adjudication made by the Authorities below. He further submitted that the word, that is to say in entry No.129 should be interpreted to the goods given in list but not otherwise. According to him, entry No.129 does not contain LLDPE bag although other kinds of bags are included. Learned Tribunal has erred in law by not accepting the entry No.136 and misdirected itself by remanding the matter to the learned Assessing Authority for fresh opinion to be obtained with regard to correct identification of the commodity manufactured by the opposite party. Learned Tribunal has failed to appreciate that on bare perusal of entry No.136 of the taxable list without any confusion leads to the conclusion that commodity in question, i.e., LLDPE falls within the scope of plastic groups as per judgment rendered in Soosree Plastic Industry Pvt. Ltd. Vrs. Union of India, O.J.C.2755 of 1988 disposed of by this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the packing materials as notified in Entry 129 the H.D.P.E. bags include L.L.D.P.E. bags; It noted that L.L.D.P.E. and H.D.P.E. may belong to same family for which he set aside the order of both the authorities below and remanded the case to the Assessing Authority for fresh assessment after collecting opinion of Expert with a direction to complete the assessment within 3 months from date of receipt of the order. Here also learned Tribunal without expressing any definite opinion sent back to the learned Assessing Officer for de novo assessment within 3 months. 12. At Chapter-III under rate of sales tax list C Entry No.129 says that 4% Sales Tax should be payable in the event of sale of packing materials, that is to say gunny bags, H.D.P.E. bags, charade bags, tin containers and glass bottles. Similarly Entry No.136 therein speaks that Polythene, polypropylene (P.P.) High density polyethylene (H.D.P.E.) woven fabrics, woven sacks, PVC products and other plastic goods except those specified elsewhere in the notification. It thus does not include L.L.D.P.E. and it has to be interpreted properly so as to bring the same under either of the category. At the same time the Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry being substituted w.e.f. 1.3.2002 contains the packing materials of course confining to gunny bags, H.D.P.E. bags, charade bags, tin containers and glass bottles. In both the entries H.D.P.E. materials has been used but the entry No.136 contains H.D.P.E. woven fabrics and H.D.P.E. woven sacks. But the entry No.129 contains H.D.P.E. bags. So, definitely there is difference between bags on one hand and woven fabrics and woven sacks on the other. Even if the L.L.D.P.E. is not included in any of the entries but the category or container prepared out of such materials is the crucial question to decide the issue in question. As per Webster s Encyclopedic Unabridged Dictionary bag means container or receptacle of leather, cloth, paper, etc capable of being closed at the mouth. According to such dictionary fabric means the structure of a woven, knitted or felted material. Similarly, according to the above dictionary sacks means a large bag of strong, coarsely woven material, as for grain, coals, etc. From the above description it appears bags can neither be fabrics nor be sacks. So, High density polyethylene (H.D.P.E.) bag is different from H.D.P.E. woven fabrics and H.D.P.E. w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the mind about rate of tax, as to its entry under the Act, the benefit of such doubt will go to the dealer by assessing the same under the entry assessable of low rate of tax as he has submitted the return on such rate on which statute has given authority to Department Revenue to assess same under the Statute. The creature of fiscal statute can neither add a word nor delete a word from statute as held in decision reported vide 2005 (181) ELT 154 (Supreme Court) (supra). Be that as it may, we hold in either of the way that the L.L.D.P.E. bags sold by the opposite party is undoubtedly coming under Entry No.129 of the Act. The conclusion of the learned Tribunal that the material should be decided by the Assessing Authority after obtaining expert opinion is untenable. Similarly, it is not necessary to remand the matter to the Assessing Authority for final opinion. At the same time the order of learned Assessing Authority and the First Appellate Authority being not reasoned order and sans to the provision of law, they are equally not countenanced. Thus the commodity manufactured by the opposite party is assessable at the rate of 4% sales tax instead of 8% rate of tax. This point is an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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