TMI Blog2018 (11) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... scertained as to whether the Dot Matrix printer could be used without the ribbon cartridge as has been opined by the Assessing Authority without referring to any material before it - appeal allowed by way of remand. - Trade Tax Revision No. - 85 of 2013 - - - Dated:- 25-10-2018 - Rajan Roy J. For the Applicant : Mudit Agarwal,Desh Bandhu Bhargava For the Opposite Party : C.S.C. ORDER RAJAN ROY,J. Heard Shri Mudit Agarwal, learned counsel for the revisionist and Shri Sanjay Sareen, learned Additional Chief Standing Counsel for the State. As per the circular of the Commissioner Trade Tax dated 26.10.2001 it is not in dispute that a Computer Printer is a computer hardware for the purposes of taxation under Entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same view as has been taken in this case i.e. against the revisionist, however, the First Appellate Authority upturned the decision of the Assessing Authority and held that ribbon cartridge was part of Dot Matrix printer, therefore, it was a part of computer hardware and taxable @ 4%, however, a Second Appeal against the decision is pending before the Tribunal at the behest of the Revenue. The contention of Shri Mudit Agarwal, learned counsel for the revisionist was that the Tribunal as also the First Appellate Authority and Assessing Authority have erred in holding that the Ribbon Cartridge is an accessory and not a part of Dot Matrix printer. In this regard he has relied upon the decision reported in 2008 (12) SCC 45; Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ath Ayurved Bhavan Ltd. Vs. Collector of Central Excise, (1998) UPTC 1086; M/s Pappur Sweets and Biscuits Vs. Commissioner of Trade Tax,U.P. and (2003) 3 SCc 111; Alpine Industries Vs. Collector of Central Excise to address that in common parlance or the commercial sense Ribbon Cartridge is treated as part of Dot Matrix printer and is also sold along with it by those who deal in it, therefore, this is the safest test in view of the aforesaid decisions, but, the Tribunal as also the other Authorities have erred in treating the said items as an accessory and not a part of the Dot Matrix printer specially in view of the decision of the Supreme Court rendered in the case of Commercial of Central Excise, Delhi Vs. Insulation Electrical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdware. Moreover, he says that said decision has been upheld by the Tribunal vide judgment dated 09.03.2017 rendered in Second Appeal 98 of 2015 against which as per his information no revision has been filed before the High Court, therefore, the same has attained finality. Shri Agarwal also relied upon the decision of the Supreme Court reported in 1996 (10) SCC 413; Union of India and Ors. Vs. Garware Nylons Ltd. and Ors. to contend that the burden of proof is on the Taxing Authority to show that the particular item in question is taxable in the manner claimed by them. Mere assertion on the part of the Revenue in this regard is of no avail. There should be material to enter appropriate finding in that regard and the material may be eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Authority had arrived at the conclusion or had made the observation that the Dot Matrix Printer could be used without the ribbon cartridge by inserting a carbon paper between two papers, Shri Sareen was not able to give any satisfactorily reply nor place any evidence which may have been led before the Assessing Authority or the Appellate Authority in this regard by the Revenue. Having heard the learned counsel for the parties and perused the records as also having gone through the decisions cited by them, this Court is of the view that the matter requires reconsideration at the level of the Tribunal for the reasons, firstly, it is to be ascertained as to whether the Dot Matrix printer could be used without the ribbon cartri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not considered the matter in the correct perspective and approach, thereby, rendering its judgment erroneous and liable to be interfered with. It has simply been persuaded by the decision of the Single Judge Bench of this Court in the case of Commissioner of Sales Tax, U.P. Vs. Punjab Gramophone House, Aminabad Park, Lucknow reported in 1978 U.P.T.C. 664 and other decisions and has merely observed that printer ribbon cartridge being consumable item is not part of the printer which by itself can not be the determining factor as is evident from the above discussion. The question involved is answered accordingly. Considering the relevant aspects of the matter as noticed hereinabove, its judgment is set-aside. The matter is remanded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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