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TMI Blog2023 (9) TMI 1419X X X X Extracts X X X X X X X X Extracts X X X X ..... mits that the petitioner-assessee, a limited company, was duly registered as a dealer under the RVAT Act and The Central Sales Tax Act, 1956 (for short "CST Act") and was regularly filing quarterly as well as annual returns with the concerned assessing authority. The assessing authority was regularly assessing the liability of the petitioner-assessee by framing assessment orders under Section 9 of the CST Act read with Sections 23 and 24 of the RVAT Act, for each financial year, since the registration of the petitioner-assessee with the Commercial Taxes Department. The petitioner-assessee was engaged in the business of manufacture and sale of various types of industrial and rare gases and the petitioner-assessee effected the sales by treating their products as 'Industrial Inputs', covered under Entry 35 of Part B of Schedule IV to the RVAT Act, which reads as: "Entry No. 25: Hydrogen, rare gases and other non metals : 5 / 5.5%". As per the learned counsel for the petitioner-assessee, the cause and controversy in the matter arose when a survey of the petitioner-company's business premises was conducted by the respondent-revenue on 21.12.2016 and the long standing and lon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing authority had always accepted the goods in question to be 'Industrial Inputs'. Moreover, as per settled position of law, the onus or burden to prove that a product falls within a particular tariff is always on the revenue, more so when the revenue is trying to place the goods in the orphan/residual entry as against the specific entry. However, the respondent-revenue has not discharged its onus to prove that the product in question would not fall under Entry No. 35 of Part B of Schedule IV to the RVAT Act. It is submitted that neither any expert / technical opinion was sought nor any evidence was brought on record to establish that the mixture of inert gases filled in cylinders by the petitioner-assessee is a product which is different and identifiable as such and known by a different name in the market and that the product(s) in question does not fall within the ambit of Entry No. 35 of Part B of Schedule IV to the RVAT Act and since the respondent-revenue has failed to discharge its onus, the reference ought to be allowed in favour of the petitioner-assessee. Reliance in this regard is placed on Apex Court judgments of Voltas Ltd. vs. State of Gujarat: (2015) 7 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion issued by the Commissioner was not binding on the Appellate Authority or on the Tax Board as those bodies discharge judicial functions and it is well settled that circulars/clarification issued by any Department are not binding on judicial / quasi judicial bodies. 5. Per contra, supporting the concurrent findings of all the authorities below, learned counsel for the respondent-revenue submits that no question of law worth consideration arises in the present STRs. On merits, learned counsel for the respondent- revenue made the following submissions: 5.1. That Entry No. 35 of Part B of Schedule IV to the RVAT Act is limited to individual gases (as 'Industrial Inputs') and not mixture of gases. The product in question have rightly been held to be mixture of gases, especially because they are inert gases, as otherwise the gases would have reacted with each other and formed an entirely new gas/substance, as the case may be. If the contention of the petitioner-assessee is accepted, then nothing would result in 'mixture' of gases as gases other than inert gases would react and form entirely new compound with its distinct characteristics. It is only when the product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Other non-metals, as per the periodic table, includes: (i) Hydrogen (H), (ii) Helium (He), (iii) Carbon (C), (iv) Nitrogen (N), (v) Oxygen (O), (vi) Fluorine (F), (vii) Neon (Ne), (viii) Phosphorous (P), (ix) Sulphur (S), (x) Chlorine (Cl), (xi) Argon (Ar), (xii) Selenium (Se), (xiii) Bromine (Br), (xiv) Krypton (Kr), (xv) Iodine (I), (xvi) Xenon (Xe), and (xvii) Radon (Rn). 10. The products in question, the purported mixture of gases, are as follows: (i) Argoshield: comprising of Argon, Carbon dioxide, and Oxygen. (ii) Corgon: comprising of Argon and Carbon dioxide. (iii) XL Mix Gases: comprising of Hydrogen, Oxygen, Argon and Carbon. 11. The respondent-revenue wants to classify the products in question in the residual entry, i.e. Entry No. 78 of Schedule V to the RVAT Act till 13.07.2014 and w.e.f. 14.07.2014 under Entry No. 29 of Schedule V to the RVAT Act which reads as "Gases liquefied or not, other than those specifically mentioned in any of the Schedules". However, it is quite apparent that gases involved in the products in question are individually covered under Entry No. 35 of Part B of Schedule IV to the RVAT Act. What remain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Manufacturers Association. The said Association has informed that the lower tax authorities are not interpreting the term "non-metals" properly and resultantly causing unnecessary hardship to manufacturers and traders of these goods. In this regard, the entry no. 35 of Part B of Schedule IV appended to the RVAT Act, 2003 has been perused and the issue at hand examined. Entry No. 35 of Part-B (industrial inputs) of Schedule IV provides the rate of tax for "Hydrogen, rare gases and other non metals" as 5.5%. Non-metals have been classified by the "periodic table of chemical elements" according to which seventeen elements are generally classified as non-metals. They are hydrogen, helium, nitrogen, oxygen, fluorine, neon, chlorine, argon, krypton, xenon, radon, bromine, carbon, phosphorous, sulphur, selenium and iodine. However, it has been brought to my notice that some of the elements like chlorine, sulphur, etc., even though being "non-metals", have been separately mentioned in different entries of the Schedules and this has been causing confusion especially as regards to the fate of the other non-metals. In this context, so as to maintain uniformity in the work of assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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