TMI Blog2018 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Opposite Party : S.C. Ashok Kumar J. These are eight trade tax revisions filed by the assessee M/s Two Brothers Filaments Ltd., herein referred as The Assessee, are arises out of a common judgment and order dated 21.09.2006 passed by Trade Tax Tribunal NOIDA Bench, NOIDA in Second Appeal Nos. 473 to 480 of 2006 for the assessment year 1998-99 to 2001-02 under the U.P. Trade Tax Act and under the Central Sales Tax Act. Heard learned counsel for the revisionist, Sri Nishant Mishra assisted by Sri Vipin Kushwaha, Advocates and learned counsel for the Department Sri B.K. Pandey, Standing Counsel for the respondent3 Commissioner of Trade Tax U.P. Since the controversy involved in all the above revision petitions are similar, therefore, all the revision petitions are decided by common judgment. For consideration by this Court the revisionist has referred the following questions by stating that the same are questions of law which are to be decided by this Court. In the revision petitions related to U.P. Trade Tax Act following questions are referred:- A. Whether the Tribunal was legally justified in holding the goods manufactured by the applicant is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the revenue to take different stands on the same issue in view of the full Bench judgment of the Hon'ble Apex Court in the case of C.C.E. Mumbai Vs. M/s Amar Bitumen Allied Products Pvt. Ltd. (supra)? C. Whether the Trade Tax Tribunal was legally justified in taking a different view from that taken by the other coordinate Bench in the applicants sister concern's case for the assessment year 1997-98 and deciding the appeal without referring the matter to the larger Bench in view of the judgment of the Hon'ble Apex Court in the case of Union of India Vs. Paras Laminates (P) Ltd. (supra) and this Hon'ble Court judgment in the case of New Okhla Industrial Development Authority Vs. C.T.T. (supra)? D. Whether the Tribunal was legally justified in deciding the classification issue only on the basis common parlance meaning when cotton fabrics has been defined under the Central Sales Tax Act in view of the judgment of the Hon'ble Apex Court in the case of Indo International Industrial Vs. Sales Tax Commissioner, U.P.? E. Whether the Tribunal was legally justified in rejection the applicant's claim of stock transfer without even examining e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeded to pass the assessment orders both under the U.P. Trade Tax Act as well as under the Central Sales Tax Act by rejecting the books of accounts of the revisionist as well as the declared turnover. The assessing authority has assessed the sale of 'NWF' to tax @ 2.5% while applying the Notification No. 1551 dated 26.05.1997 (effective till 01.12.1998) and thereafter under entry no. 45 of Notification No. 2376 dated 23.11.1998. The revisionist has claimed certain stock transfer to its branch, which was situated at Delhi by saying that it is the stock transfer, therefore, is exempted from payment of tax, however, the said claim of the assessee was rejected by the assessing authority while passing the orders under Section 9(2) read with Section 30 of the Central Sales tax Act. For the perusal, the extract of the above relevant notifications are necessary to be incorporated:- -: English translation of Vitta Bikri-kar Anubhag-2, Noti. No. S.T.-2-7038/X-7 (23)/83-U.P. Act XV-48-Order-85, dated 31st January, 1985, published in U.P. Gazette, Extraordinary, dated 31-1-1985. (53) Textiles of the following varieties manufactured on powerloom, excluding durries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... glish Translation of Government Notificatin No. T.I.F.-2- 2376/XI-9(251)/97-U.P. Act-15-48-Order-98, dated 23rd November, 1998. (45) Tapes, Niwar (excluding cotton niwar) and laces including cord, string or line used for trying purposes or for drying clothes. Sale to Consumer 2.5% Based on the survey report and the material available on record the assessing authority has proceeded to pass the assessment orders and has imposed the tax @ 2.5% on the purchases made by the revisionist by treating the same as purchases from unregistered dealers and accordingly estimated the same. The assessing authority has estimated the turnover of sales while passing the assessment orders treating the NWF sold by the revisionist as 'Tapes and Niwar' covered by notification no. 1551 dated 26.05.1997 and notification no. 2376 dated 23.11.1998 respectively. Aggrieved by the assessment orders, the revisionist preferred the appeals before the First Appellate Authority, the Joint Commissioner (Appeals) 1st, Trade Tax, NOIDA. The Joint Commissioner (Appeals) by his common order dated 23.05.2006 has rejected all the eig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under the heading 59.3. Section 14(iia) of the Act, 1956, provides as follows:- 14(ii-a) Cotton fabrics covered under heading Nos52.05, 52.06, 52.07, 52.08, 52.09, 52.10, 52.11, 52.12, 58.01, 58.02, 58.03, 58.04, 58.05, 58.06, 59.01, 59.03, 59.05, 59.06 and 60.01 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); Learned counsel for the appellant has submitted that the notification which has been issued under Section 4(a) of the U.P. Trade Tax Act, exempts Cotton Fabrics of all varities. Learned counsel for the revisionist has placed reliance of the word ' variety' which has been defined in Cancise Oxford English Dictionary in following words:- Variety n. (pl. Varieties) 1. the quality or state of being different or diverse, 2. (a variety of) a number of things of the same general class that are distinct in character or quality, a thing which differs in some way from others of the same general class; a type. Bilowya subspecies or cultivar. 3. a form of entertainment consisting of a series of different types of act, such as singing, dancing, and comedy. Origin C 15: from Fr. Varities or L. Varities, from various (see Various). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s settled prinicple of law that the opinion of the Government and the circulars are binding upon the Revenue authorities. Learned counsel for the revisionist has submitted that the issue of classification is to be decided on the basis of common parlance test. Learned counsel therefore contended that for recording a finding as to how a commodity is known in market and in common parlance, there has to be some evidence on record, without which common parlance test cannot be applied. Counsel for the revisionit-assessee submitted that in the present case, there was no evidence on record, on the basis of which Tribunal and appellate authority have recorded findings that in common parlance the goods in question are not treated as narrow woven fabrics but are known as lace and tape. This findings is merely based on the personal opinion of the appellate authority and members of Tribunal, without any evidence on record to show how the goods manufactured by applicant are known in market. Reliance in this regard is placed of Apex Court decision in the case of Commissioner of Customs Vs. Jaya Satya Marine Exports (P) Ltd. (2001) 9 SCC 765, wherein in para 7, Apex Court has held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'McDonalds outlet with the intention of enjoying an ice-cream , softy or soft-serve , if at all these are to be constructed as distinct products, in the first place, will be aware of intricate details such as the percentage of milk fat content, milk non-solid fats, stabilisers, emulsifiers or the manufacturing process, much less its technical distinction from ice-cream . On the contrary, such a person would enter the outlet with the intention of simply having an ice-cream or a softy icecream , oblivious of its technical composition. The true character of a product cannot be veiled behind a charade of terminology which is used to market a product. In other words, mere semantics cannot change the nature of a product in terms of how it is perceived by persons in the market, when the issue at hand is one of excise classification. At the end learned counsel for the revisionist has submitted that in the case of sister concern of the revisionist company, which was also engaged in manufacturing the same products i.e. NWF for assessment year 1997-98 the Tribunal by its order dated 19.11.2005 has held that NWF is exempted from payment of tax. Per contra, learned Standin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act at both the places, namely, with Cotton Fabrics as well as man made fabrics. Per contra, counsel for the revisionist has reiterated that on the item, namely, NWF, the revisionist assessee has paid the excise duty under the heading of 58.06 and admittedly the said item falls under the category of Section 14(iia) of the Central Sales Tax Act therefore is exempted from payment of tax. Having heard learned counsel for the parties at length and after considering the relevant material and documents as well as judgments relied by the respective parties, I am of the opinion that the finding recorded by the assessing authority confined by the first appellate authority as well as Tribunal are finding of facts, need no interference by this Court. No question of law is involved and therefore the questions of law referred by the assessee and decided against the assessee. So far as the revision filed against orders related to the Central Sales Tax Act, by which orders all the authorities below rejected the claim of the revisionist with regard to the Stock transfer, I am of the opinion that after due consideration and examination of the record, related to each transaction, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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