TMI Blog2020 (1) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing, neither the primary character nor the composition is lost - Thus Bitumen Emulsion is to be classified as Bitumen falling under Serial 18 of Part B of the First Schedule to the TNVAT Act, 2006 and is liable to be taxed at the rate prescribed therein for Bitumen . Hon'ble Supreme Court in the case of COMMISSIONER OF COMMERCIAL TAX, U.P. VERSUS M/S. A.R. THERMOSETS (PVT.) LTD. [2016 (9) TMI 410 - SUPREME COURT] has held that the processes result in improvement of the quality of bitumen and there is no change in the characteristics or identity of bitumen so as to transform bitumen into a new product having an identity, characteristic and use. Petition allowed - decided in favor of petitioner. - W.P.No.18156 of 2012 And M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pre-assessment notice issued by the Deputy Commissioner (CT-I) LTU, Chennai (First Respondent) herein. The pre-revision notice sought to be classify Bituman Emulsion traded by the Petitioner under Entry Tax S.No.50, Part (C) of the First Schedule to the TANVAT Act, attracting 12.5% VAT. 5. The learned counsel for the Petitioner referred to a recent decision of the Hon'ble Supreme Court rendered in Commissioner of Commercial Tax, U.P Vs A.R. Thermosets (Pvt.) Ltd. reported in 2016 94 VST 258 (SC), wherein, in Page Nos. 264, 268, 269 270 while dealing with an identical situation under U.P. Value Added Tax Act, 2008, the Court, has observed as under: Whether the bitumen and bitumen emulsion are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the goods as understood in commercial or business parlance are identical or similar to the description of the entry. Where such similarity in popular sense of meaning exists, the generic entity would be construed as including the goods in question. Sometimes on certain circumstances the end use test, ie., use of the goods and its comparison with the entry is applied. The entry in question uses the word bitumen without any further stipulation or qualification. Therefore, it would, in our opinion, include any product which shares the composition identity, and in common and commercial parlance is treated as bitumen and can be used as bitumen. When we apply the three tests, namely, identit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... varieties. The entry is question uses the word bitumen without any further stipulation or qualification. Therefore, it would, in our opinion, include any product which shares the composition identity, and in common and commercial parlance is treated as bitumen and can be used as bitumen. When we apply the three tests, namely, identity, common parlance and end-use to the goods and the entry in question, bitumen emulsion would be covered by the entry bitumen. It is worthy to note that bitumen emulsion matches the entry as it is only one of the varieties of bitumen. Bitumen emulsion is processed bitumen, but the process has not changed its composition, commercial identity or its use. Bitumen emulsion is rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matches the entry as it is only one of the variety of Bitumen . Bitumen Emulsion is a processed Bitumen , but the process does not change its composition, commercial identity or its use. The Court further held that the Bitumen Emulsion is regarded and performs the same function as Bitumen and as a result of processing, neither the primary character nor the composition is lost. 9. Thus Bitumen Emulsion is to be classified as Bitumen falling under Serial 18 of Part B of the First Schedule to the TNVAT Act, 2006 and is liable to be taxed at the rate prescribed therein for Bitumen . 10. In view of the above, the present Writ Petition stands allowed with consequential relief. No co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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