TMI Blog2017 (5) TMI 1808X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 7 Schedule-IV, then the revenue has to bring material on record, which has not been brought on record. The finding reached by all the three authorities appear to be unjust and accordingly the finding reached by all the three authorities is reversed and it is held that FM will fall in entry 7, and the claim of assessee is just and proper and allowed. Penalty - HELD THAT:- Once the claim of assessee has been accepted that it was liable to a rate of 4% only, therefore, question of penalty does not arise. Even otherwise, it is case where the matter was relating to classification of entries - The Apex Court in the case of Shree Krishna Electricals (supra) and this court in COMMERCIAL TAXES OFFICER, ANTI-EVASION, ZONE-II, JAIPUR VERSUS BAMBINO AGRO INDUSTRIES LTD. [ 2015 (9) TMI 1504 - RAJASTHAN HIGH COURT ] and in some other cases, has also taken a consistent stand that in a case of classification, question of penalty does not arise. Admittedly, though survey has been conducted, but the Revenue has not been able to pin point or find any defect in the sales version, except whether rate of 4% is leviable or 12.5%, thus, the petitions of Revenue in this regard also stands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) TaxUpdate 145]. However, the Tax Board was not satisfied insofar as the claim of assessee that FM also fall part in the same category/entry but held that it is not covered by entry 7 of Schedule-IV of the VAT Act and thus, upheld the levy of tax @ 12.5% on FM . The Tax Board also, however, did not accept the appeals preferred by the Revenue on deletion of penalty and thus, dismissed the appeals filed by the Revenue. 6. While the assessee has challenged the levy of rate of tax to be 12.5% on FM , the Revenue has challenged the holding by the Tax Board on photocopier as MFD falling under the category of computer peripheral and holding them liable to tax as per Schedule-IV i.e. @ 4% and also challenged the deletion of penalty. 7. Since the issues are arising out of the same impugned order, therefore, all the petitions were heard finally and are being disposed of. Heard finally. 8. Learned counsel for the assessee vehemently contended that FM as it stand, would certainly fall as entry 7 of Schedule-IV as it is an electrical apparatus and FM as they are cannot function unless there is a telephone connection and entry 7 envisages electrical apparatus for line ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered and looked into by this court as it is a finding of fact. 12. Insofar as the petitions preferred by the Revenue are concerned, learned counsel contends that FM/photocopier cannot be covered as MFD falling under the category of computer peripheral and thus tried to distinguish the judgment rendered by this court in the case of M/s Kores (India) Ltd v. Assistant Commissioner, Commercial Taxes and Hewlett Packard India Sales Pvt. Ltd. v. Dy. Commissioner (Appeals) (supra). Learned counsel contends that admittedly it is a case where assessee was paying lower rate of tax @ 4% only when claim was disallowed/rejected by all the three authorities and, therefore, once all the three authorities upheld a rate of 12.5% then it is certainly a case of evasion and penalty is justified and the Tax Board was not justified in deleting the same and contended that the issue requires consideration. 13. I have heard learned counsel for the parties and perused the material on record. It would be appropriate to quote entry 7 of Schedule-IV :- Electrical apparatus for line telephony or line telegraphy, including line telephone sets with cordless handsets and telecommunication ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l there is a telephone line/connection, FM does not operate. Therefore, it has been held to be falling in the entry 7 of Schedule-IV of the RVAT Act, and I concur with the reasoning of this court (supra). Merely because FM specifically has not been included in entry 7, is no reason to infer that it will fall in Schedule-V. Once the claim of the assessee is that it fall under entry 7 Schedule-IV, then the revenue has to bring material on record, which has not been brought on record. 16. In my view, the finding reached by all the three authorities appear to be unjust and accordingly the finding reached by all the three authorities is reversed and it is held that FM will fall in entry 7, and the claim of assessee is just and proper and allowed. 17. Insofar as the petitions preferred by the Revenue are concerned, the Tax Board has rightly taken into consideration the judgment of this court in the case of M/s Kores (India) Ltd v. Assistant Commissioner, Commercial Taxes and Hewlett Packard India Sales Pvt. Ltd. v. Dy. Commissioner (Appeals) (supra) which had considered the self same question about the issue at length relying on several other authorities of various courts, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to various technical literature and material, the case laws in favour of the Assessees, this Court is satisfied that the commodity in question, namely, Multi Functional Device could not be taxed by the Assessing Authority under the Residuary Entry for the period from 01.04.2006 to 09.03.2010, and the said commodity would fall within the ambit and scope of entry relating to computer printers and computer peripherals, taxable @ 4% in Schedule IV of the VAT Act. 28. The levy of tax in the Residuary Entry @ 12.5% / 14% therefore, cannot be upheld, and to that extent, the order impugned of the learned Tax Board and the authorities below deserve to be quashed and set aside. They are accordingly set aside. 18. The Special Leave to Appeal preferred by the Revenue having been dismissed by the Apex Court vide judgment order dt 13.4.2017, rests the controversy in hand and is no more res integra and accordingly the departmental petitions insofar as computer photocopier is concerned, stands dismissed. 19. Insofar as the penalty is concerned, once the claim of assessee has been accepted that it was liable to a rate of 4% only, therefore, question of penalty does not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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