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TMI Blog2021 (5) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales/Trade Tax Revision [Sales/Trade Tax Revision Defective No. 95/2019] instituted by the Commissioner of Commercial Taxes. 4. The respondent is a dealer registered under the provisions of the Uttar Pradesh Value Added Tax Act, 2008 ("UP VAT Act, 2008"). The respondent carries on the business of purchasing textiles and selling dress material for women. A survey was conducted at the establishment of the respondent on 9 March, 2010 by the Special Investigation Branch. During the course of the survey, the statement of a partner of the respondent was recorded in which the nature of the business was described in the following terms : "The business of manufacture and unstitched suit, salwar, kameeze, dupatta etc. is carried out. The work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 2008-09 till now, the nature has remained the same. The cloth, threads, stars, beads are used as the material..." 6. The dealer was assessed to a tax of Rs. 99,42,870 for assessment year 2009-2010, by treating the product as an unclassified item under Schedule V of the UP VAT Act, 2008, under which the rate of tax is 12.5%. The respondent filed an appeal [Appeal No. 83/2013] before the Additional Commissioner, Gr.-2, (Appeals) IV, Ghaziabad. By an order dated 13 February, 2013 the first appellate authority partly allowed the appeal and classified the goods as "textile made ups" which are subject to a duty of 4% under Serial Number 16 of Schedule IIA. The order passed by the appellate authority was assailed by the appellant and by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ics of all varieties; (c) woollen fabrics of all varieties; (d) fabrics made of a mixture of any two or more of the above fibres, viz. cotton, rayon, artificial silk, staple fibre or wool, or of a mixture of any one or more of the said fibres with pure silk fibre; (e) canvas cloth. The Hindi Text of the said entry is also reproduced hereunder : Schedule II provides a list of goods which are taxed at 4%, of which Entry 16 is in the following terms : Sr. No. Name and description of goods List of goods taxed at 4% 16 Bed sheets (other than unstitched bed sheets), pillow cover & other textile made ups. The Hindi Text of the said entry is also reproduced hereunder Finally, it is necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, finishing or otherwise processing, treating or adapting any goods. The respondent purchases textile material in bulk which is then cut to the length of a salwar kameez suit for women. The work of sewing, design and embroidery is carried out on the neck portion of the kameez or kurta. No stitching is done on the salwar. The dupatta is subjected to 'pico' work. 12. The respondent contended before the Tax Assessment Officer that it carries on the work of cutting and embroidery in its factory. On the basis of the description which was indicated by the respondent, it is difficult to accede to the view of the Tribunal that the product will fall within the description contained in the list of exempt goods in Schedule I, more particularly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Authority was correct or whether the order of the first appellate authority should be maintained. The Assessing Authority taxed the product under the residuary entry in Schedule V and subjected it to at the rate of duty of 12.5%. The First Appellate Authority on the other hand took the view that the product should be classified under Entry 16 of Schedule II and would be subject to the rate of 4%. The residuary entry would be attracted if no other specific entry applies. The appellant had also challenged the order of the first appellate authority before the Commercial Tax Tribunal. Entry 16 of Schedule II refers to bedsheets (other than unstitched bedsheets), pillow covers and "other textile made ups". This description in the English vers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, it is not possible to accept the view of the first appellate authority that the product falls within the purview of Entry 16 of Schedule II. 15. In view of the above discussion, the product would fall for classification under Serial 1 of Schedule V which is a residuary entry which covers all goods except those which are mentioned and described in Schedules I, II, III and IV. 16. The High Court declined to exercise its jurisdiction in the revision which was filed by the Department. The High Court was of the view that the factual findings of the Tribunal did not warrant interference. The High Court has manifestly erred in ignoring the plain meaning of the entries in the Schedules to the UP VAT Act, 2008 which have been discus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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