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2017 (5) TMI 1171

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....common question has been raised about the product "Solvent Cement Solution" how to be taxed under RVAT Act. It relates to the assessment years 1997-98, 1998-99, 1999-2000 & 2000-01 respectively. Since it is claimed by the counsel that the issue being identical and raising common controversy, for the sake of convenience, are being decided after hearing counsel for the parties by this common order and the present judgment would be applicable to all petitions. 3. The facts of the leading case bearing SB STR No.26/2012 are taken into consideration. The assessee is a limited company and engaged in the business of manufacture and sale of PVC pipes and fittings thereof and also selling PVC Solvent Cement. A survey came to be conducted at the busi....

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....accordingly deleted the same. While the assessee has preferred appeal against sustenance of tax and interest @ 10%, however, the revenue has preferred appeal against the order deleting penalty u/Sec.65 of the Act. 6. Learned counsel for the assessee vehemently contended that the PVC pipes and fittings as also the PVC Solvent Cement being manufactured by the assessee is used for jointing the PVC pipes and therefore, it is duly included within Entry No.54 of the Notification dt.26.03.1999. It is also contended by the ld. counsel for the assessee that in addition to sales of PVC pipes and fittings, the petitioner is also selling Solvent Solutions (Solvent Cement) to be used by the consumers for joining the pipes/fittings, without which it is ....

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....les Tax, U.P. (2006) 143 STC 368, Indian Plywood Manufacturing Company Limited Vs. State of Karnataka (1993) 89 STC 412. 7. Per-contra, ld. counsel for the revenue supported the order of the Tax Board insofar as the levy of differential tax is concerned and contended that the entry namely; PVC pipes, H.D.P.E pipes, Plastic pipes & fittings is restricted entry and it cannot be enlarged to the product being manufactured by the assessee. Counsel contended that the product being used is adhesive Cement and the Tax Board has rightly found that it does not fall in the said definition of PVC pipes, H.D.P.E pipes, Plastic pipes & fittings. Counsel also contended that even a common parlance test, if made applicable in the instant case, no one will ....

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....also used for jointing purposes, it cannot be accepted only on this count alone when there is no supporting material on record, in this regard. The Tax Board while distinguishing the case of Maharashtra Sales Tax Tribunal, Mumbai (supra) has given a fine distinction as entry in Maharashtra viz-aviz in Rajasthan is different which reads as under:- Notification Entry No. Transactions on which exemption granted Extent of exemption Conditions subject to which exemption granted A-26 (1) Sales or purchases by a Registered dealer of all types of agricultural pipes covered by entry 93 in Part II of Schedule C In excess of four percent The goods specified in column 2 are sold under the Indian Standard Institure (I.S.I.) or Bureau of Indian S....

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.... different proposition, distinguishable and thus not inapplicable on facts. Taking into consideration in my view, the finding reached by the Tax Board is a finding of fact and no question of law can be said to arise out of the order of the Tax Board. 13. Insofar as penalty u/Sec.65 of the Act is concerned, though it is a case of survey which may have resulted into some taxability @10% as against 4% claimed by the assessee but the fact remains that it is a case of classification and two views are possible and at least the assessee also succeeded before the Dy. Commissioner (A) and in my view, once it is a case of classification then the penalty need not be levied. Admittedly, all the sales have been found to be vouched and verifiable and th....