TMI Blog2023 (11) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... t be brought under the various specific entries in the tariff schedule should be attempted to be brought under the residuary entry. In other words, unless the department can establish that the goods in question can by no conceivable process of reasoning be brought under any of the tariff items, resort can be had to the residuary item. Fasteners means is a device that mechanically joins or affixes two or more objects together. It is a device to attach especially by pinning, tying or nailing. Nuts, bolts, screws and fasteners are included in Entry 79 Part II of Schedule II of VAT Act. The function of Screw and Wire Nails is more or less similar and are normally used to attach two or more items. The respondent has to show as to why wire nai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for clarification of the rate of tax on wire nails. Further case of the petitioner is that the wire nails have not been kept in any entry but put in residuary entry though it should be kept in entry 79 Part-II of Schedule II which includes nuts, bolts, screws and fasteners. Wire nails do not fall under the heading of fastener. It is pleaded that for the products mentioned in entry 79 Part-II of Schedule II the tax rate of 4% whereas for the products kept in residuary entry it is 12.5%. Counsel for the petitioner submits that the clarification sought by the petitioner has been turned down by respondent No. 2. In sum and substance submission of the petitioner is that in view of the judgment of the Supreme Court with regard to putting the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emplated therein and therefore even the product Wire Nails is to be charged accordingly under the residuary entry. It is further stated that Entry 79 speaks about Nuts, Bolts, Screws and Fasteners and wire nails cannot be meant to understand to fall within the definition of fasteners. State has relied upon the judgment of Allahabad High Court in case of Commissioner of Sales Tax Vs. Aftab Husain; (1970) 25 STC 471 All and Commissioner of Sales Tax Vs. Mohd. Farooq; (1975) 35 STC 509 All. 4. The controversy involved in this writ petition is as to whether the Wire Nails would fall within the meaning of Fastener as per entry 79 Part-II of Schedule II of VAT Act or under residuary entry in part IV of Schedule. The tax chargeab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods in question can by no conceivable process of reasoning be brought under any of the tariff items, resort can be had to the residuary item. 7. Hon'ble Supreme Court in yet another decision in the case of Puma Ayurvedic Herbal (P) Ltd. Vs. Commissioner, Central Excise, Nagpur reported in (2006) 3 SCC 266 held that: It is settled law that the burden of showing correct classification lies on the Revenue. 8. In order to bring any item under the residuary entry, State is under its primary and paramount responsibility to establish that under any circumstance such item cannot be brought under any of the entry of schedule of the VAT Act except in the residuary entry of part IV. Without any strong justification such item canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to by the customers who use it. The burden of proving that Banphool Oil is understood by the customers as an hair oil was on the Revenue. This burden is not discharged as no such proof is adduced. On the contrary we find that the oil can be used for treatment of headache, eye problem, night blindness reeling head weak memory, hysteria amnesia blood pressure, insomnia, etc. The dosages required are also set out on the label. The product is registered with Drugs Controller and is being manufactured under a drug licence. It is settled law that the onus or burden to show that a product falls within a particular tariff item is always on the Revenue. 9. In order to understand the correct meaning and function of Fasteners it would be a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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