TMI Blog2023 (6) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... ly computer printers, but computer peripherals also. This Court finds no justification in the contention raised by the learned counsels for the Revenue, that the word peripherals has to be construed narrowly to limit and include only accessories like, mouse, webcam or keyboard, as computer peripherals, to be taxed @ 4% under the said entry, and not to include therein the Multi Functional Devices. Further, in the case of M/S SHARP BUSINESS SYSTEMS (INDIA) LTD. VERSUS THE ASSISTANT COMMISSIONER ANTI-EVASION, ZONE-I, THE RAJASTHAN TAX BOARD, KAR BHAWAN, THE ASSISTANT COMMISSIONER ANTI-EVASION AND (VICE-VERSA) [ 2017 (5) TMI 1808 - RAJASTHAN HIGH COURT] , Co-ordinate Bench of this Court observed that 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. From the analysis of the aforesaid judgments, it is clear that the term peripheral has been given an expansive meaning and is not restricted to input/output devices, as contended by the Revenue. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the ld. Tax Board was correct in law in holding that the networking products such as Routers, Switches, Hubs, LAN Cards and LAN cables etc. sold by the petitioner are not computer peripherals hence was taxable @ 12.5% / 14% and not @ 4% / 5%. (ii) Whether the ld. Tax Board was correct in law while dismissing the appeal in restricting its findings/reasons only to the extent of CAT-5 and CAT-6 cables and not giving any findings/reasons whatsoever in respect of networking products such as Routers, Switches, Hubs, LAN Cards sold by the petitioner? 2. Since the common question of classification of CAT-5 / CAT-6 cable is involved in all these STRs, with the consent of the parties, all these STRs were heard together. 3. Learned counsels for the petitioner-assessee submits that the petitioner/companies were engaged in the business of selling computer and computer related products, including the networking cables (CAT-5 / CAT-6) whose primary function is data transmission. Learned counsels for the petitioner-assessee contends that the petitioner-assessee was rightly classifying the networking cables as computer peripherals and accordingly discharging its VAT liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Assistant Commissioner (S.B. STR No. 185/2016 decided on 26.05.2017); judgments of Madras High Court in the case of State of Tamil Nadu vs. CMC Limited reported in [(2014) 75 VST 413 (Mad.)], Canon India Pvt. Ltd. vs. State of Tamil Nadu reported in [(2015) 80 VST 483 (Mad.)] and judgment of Delhi High Court in the case of Ricoh India Limited vs. Commissioner reported in [(2012) 52 VST 49 (Delhi)]. 3.3) The third submission of learned counsels for the petitioner-assessee is that it is an established cannon of classification that a specific entry would override a general entry. Reliance in this regard is placed on Apex Court judgments of Commissioner of Commercial Tax, U.P. vs. A.R. Thermosets (Pvt.) Ltd. reported in (2016) 16 SCC 122, State of Maharashtra vs. Bradma of India Ltd. reported in [(2005) 140 STC 17 (SC)], Hindustan Poles Corporation vs. Commissioner of Central Excise, Calcutta reported in [(2006) 145 STC 625 (SC)], and Krishi Utpadan Mandi Samiti and Ors. vs. Ved Ram reported in [2012 (277) ELT 299 (SC)]. It is stated that a special entry must prevail over the general entry and that the residuary clause can be invoked only if the department can establish that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd V.M. Salgaocar and Bros. Pvt. Ltd. vs. Commissioner of Income Tax reported in (2000) 5 SCC 373. 3.6) Learned counsel for the petitioner-assessee have also relied upon the IT ITES Policy of 2007, introduced by the State of Rajasthan, wherein as per para 2.11.2, VAT on all IT products was rationalised at the minimum rate of 4%. Similarly, learned counsels for the petitioner-assessee have also relied on Chief Minister s finance speech made while introducing State Budget for the year 2013-14. The relevant part of the budget speech is reproduced as under: Relying upon the above, learned counsels for the petitionerassessee contends that the intention of the Government was always to impose VAT @ 4% / 5%. It is further contended that the Government acknowledged the difficulties faced by different assessee who were dealing with computer items and therefore sought to clarify the specific rate of VAT leviable on such items. In furtherance of the same, the Entry No. 3 and 24 of Part A of Schedule IV of the RVAT Act were amended to include networking items and CAT-5 / CAT-6 cables for which the applicable rate of tax was 4% / 5%. Learned counsels contends that the said amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder consideration in those cases were some sort of hardware equipment, whereas the present case pertains to classification of networking cables which can also be used independently of the computer for various other purposes. 5. Heard the arguments advanced by both the sides, scanned the record of the STRs and considered the judgments cited at Bar. 6. The lis in question pertains to classification of CAT-5 and/or CAT-6 cables for the purpose of determining the applicable rate of tax as per the RVAT Act. According to the petitioner assessee, the CAT-5 / CAT-6 cable would fall under Entry 3 or Entry 24 read with Entry 28 of Part-A of Schedule IV to the RVAT Act, whereas as per Revenue, the CAT-5 / CAT-6 cable would fall under the residuary entry of Schedule V to the RVAT Act. The relevant entries, as amended from time to time, are reproduced as under:- Entry No. 3 of Part-A of Schedule IV: (As on 01.04.2006): Computer system and peripherals, electronic diaries:- 4% Entry No. 3 of Part-A of Schedule IV (As on 01.06.2006): Computer system and peripherals, computer printers and electronic diaries:- 4% Entry No. 3 of Part-A of Schedule IV (As on 09.03.2010): Comput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic entry. From the perusal of the order(s) of the Tax Board, it appears that the decision of the learned Tax Board was based on the following factors: a) that the networking cables are not integral/essential to the functioning of a computer; b) that networking cables are not hardware equipment or apparatuses, which are generally considered as computer peripherals/computer accessories; c) that the networking cables are not exclusively used with computer as they have different applications independent of computers. 8. The word computer system and peripheral is not defined anywhere in the RVAT Act. At this juncture, it would be apt to consider the way in which it has been interpreted by different Courts. In the case of M/s Kores (India) Limited (supra), Coordinate Bench of this Court observed as under: 16. The Multi Function Device comprising of computer printer, fax machine, photocopier and scanner - all-in-one, with the fast technology development, is an office equipment, which combines the aforesaid three or four devices and functions in one unit, and is largely used while attached with computer, though it may be used in some respects, as stand alone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court observed as under:- 15. On perusal of the above and taking into consideration the entry 7, in my view, the FM would certainly can be said to be covered under entry 7 of Schedule-IV reproduced hereinbefore. It is a case where FM as noticed hereinbefore becomes operative only when there is a telephone line/connection and unless and until 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. Further, in the case of CMC Limited (supra), the Madras High Court observed as under:- It is not in dispute that router is a device falling outside the main part, namely, computer and it is partially or completely dependent on the host and expands the capabilities of the computer and it does not form part of the core architecture. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersonal, mini, mainframes and laptops of analog and digital varieties is not in dispute. It is also not in dispute that this equipment is an input and output device. The printer and the scanner of different kinds fall within the definition of peripheral . If it is a standalone photocopier machine or fax machine, then the Department would have a case and counter. Photocopying is not the primary function of the equipment in question, as it works in conjunction with the computer. The distinction is evident from the reading of entry 18(i) of Part B of Schedule I and entry 14(iv) of Part D of Schedule I of the TNGST Act. Peripherals in relation to computer personal, mini, mainframes and laptops of analog and digital varieties would fall under entry 18(i) of Part B of Schedule I, whereas electronic instruments including cash registers, tabulating and calculating machines, electronic duplicating machines, reprographic copiers including duplicators, xerox and photo copying machines and any other electronic apparatus for obtaining duplicate copies fail under entry 14(iv) of Part D of Schedule I. Further, in the case of Ricoh India Limited (supra), the Delhi High Court held as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he computer operational, but the Revenue has failed to consider the meaning of the word operational in its different contexts. For many end users, in this day and age, it is a necessity to be able to connect their computer to a network so as to make their computer operational for their usage. The connection to external network may be to local area network (LAN) or wide area network (WAN) and it may be wired or wireless. But even if it is wireless, it would have to be with aid of another device. Be that as it may, merely because the connection can also be established wirelessly would not preclude the networking cables from being included in the broad definition of peripheral as they are also used with computer system to connect the computer to a network. 11. These authorities can be multiplied, as various such authorities of the Tribunals were also cited before this Court, but it is not considered necessary to reproduce and discuss all such cases in detail, especially when the learned counsels for the Revenue failed to bring out any contra view on this issue from any other High Court or the Hon ble Supreme Court of India. 12. In the opinion of this Court, the learned Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the specific entries numbering 3 and 24 of Part-A of Schedule IV to the RVAT Act. A bare perusal of the text of the Hon ble Chief Minister s speech, as reproduced above, would also reveal that the amendment was brought to remove ambiguity/difficulty in taxation and was thus an amendment in the nature of a clarification and thus having a beneficial purpose and hence would also have retrospective application as well. Reliance in this regard can be placed on Apex Court judgment of Suchitra Components Ltd. (supra) and Kerala State Industrial Development Corporation Ltd. (supra), as cited by learned counsels for the petitioner-assessee. 13.4) In the case of petitioner/Rashi Peripheral Pvt. Ltd., the Tax Board has imposed additional differential tax and interest on the entire turnover amount based on the minuscule sale of CAT- 5/CAT-6 cable made by the petitioner-assessee, which constituted less than 5% of the total turnover of the petitioner-assesse whereas the other 95% of the turnover was based on sales of other networking items that were undisputedly covered by the judgments of various High Courts cited before the Tax Board. However, with complete disregard to that, the Tax Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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