TMI Blog2023 (12) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... to the TNVAT Act, though it is capable of multiple uses and some of such use being general in nature and not in relation to Computers / Information Technology. The above exercise shall be carried out after providing the petitioners an opportunity of hearing and the same shall be completed within a period of 8 weeks from the date of receipt of copy of this Order. Petition disposed off. - Honourable Mr. Justice Mohammed Shaffiq For the Petitioner : Mr. Joseph Prabakar For the Respondent : Mr.T.N.C. Kaushik Additional Government Pleader ORDER The short question that arises for consideration in these two writ petitions is whether home UPS which is marketed / advertised as meant for use in homes can be classified under S.No. 68 of Part B of the First Schedule to the TNVAT Act which covers Information Technology products notified by the Government. 2. The petitioner had classified the UPS sold by it as falling under S.No. 68 and in particular S.No.27 of Notification No.II (I)/CTR/ (a- 6/2007-G.O.No.3 dated 01.01.2007 which reads as under : THE FIRST SCHEDULE PART-B S.No. Description of the Goods C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 200-240V AC in UPS and has a short backup duration and the output is pure Sine Wave. To the contrary it is stated that the Home UPS / Inverters sold by the petitioner has an external battery and has a wide range of input from 170V-270V AC and its output is a Modified Sine Wave which cannot be equated with the UPS covered under S.No. 68 of Part B of the First Schedule read with G.O.Ms.No.3 dated 01.01.2007. Thus the UPS sold by the petitioner would not fall within S.No. 68 of Part B of the First Schedule to the TNVAT Act read with G.O.Ms.No.3 dated 01.01.2007 but would fall under residuary entry viz., S.No. 69 of Part C of the First Schedule of the TNVAT Act. 3. The impugned order is challenged inter alia on the following grounds : a) S.No. 27 of G.O.Ms.No.3 covers Uninterrupted Power Supply. It has no conditions attached with regard to the nature of use nor does it contemplate that the UPS must have an inbuilt battery and the output must be a pure sine wave. In the absence of the Entry under the notification containing any such condition the addition of these conditions vide circular / clarification is unsustainable. b) The test of exclusive use with Computer / Informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for classification of the product itself. c) The clarification by the Commissioner dated 14.08.2015 wherein conditions have been laid down for any product to qualify as Information Technology product under S.No.68 of Part B of the First Schedule to the TNVAT Act covers the entire issue and unless the test laid down therein are satisfied, the UPS sold by the petitioner cannot be classified as an Information Technology product. d) The advertisement in the brochure of the petitioner itself is indicative of the fact that the petitioner had sold UPS as intended for running home appliances such as lights, fans etc and thus liable to be classified under S.No. 68 of Part C of the 1st Schedule to the TNVAT Act. 6. Heard both sides and perused the material on record. 7. This Court finds that the impugned order suffers from the following infirmities and has misdirected itself in determining the classification of UPS dealt by the petitioner as falling under residuary entry viz., S.No. 69 of Part C of the First Schedule to the TNVAT Act as would be evident from the following: a) Information Technology products that are covered by S.No. 68 of Part B of the First Schedule to the TN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of new words. They should not be interpolated even though the remedy of the statute would thereby be advanced, or a more desirable or just result would occur. Even where the meaning of the statute is clear and sensible, either with or without the omitted word, interpolation is improper, since the primary source of the legislative intent is in the language of the statute. (emphasis supplied) b) In the absence of the entry providing for the user test it may not be permissible to add words whereby the user test is incorporated in the entry, to do would be addition of words which is impermissible. The user test has been found to be inconclusive in matters of classification unless expressly provided in the notification or Act. In this regard it may be useful to refer to the following judgment in Porritts Spencer (Asia) Ltd. v. State of Haryana , (1979) 1 SCC 82 : 1979 SCC (Tax) 38 at page 85 5. ....The use to which it may be put is also immaterial and does not bear in its character as a textile. It may be used for making wearing apparel, or it may be used as a covering or bedsheet or it may be used as tapestry or upholstery or as duster for cleaning or as towel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also stands vitiated for the reason that it has failed to take into account expert opinion which is relevant in matters of classification. In this regard, it may be relevant to refer to the decision in CCE v. Damnet Chemicals (P) Ltd. , (2007) 7 SCC 490 : 2007 SCC OnLine SC 1099 at page 495 14......It is well settled and needs no restatement at our hands that the test reports given by the chemical examiner are binding upon the Department in the absence of any other acceptable evidence produced by it in rebuttal. In the present case, the Department has neither produced any evidence to rebut the reports of the chemical examiner nor impeached the findings of the test reports. (emphasis supplied) Parle Agro (P) Ltd. v. CCT , (2017) 7 SCC 540 : 2017 SCC OnLine SC 659 a t page 574 62. The above materials which were filed by the appellant before the Clarification Authority were relevant materials for understanding the manufacture process and the nature and contents of ultimate product. The expert authority and its opinion which were relied on by the appellant were required to be adverted to both by the Clarification Authority as well as by the High Court and we ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
