2016 (9) TMI 410 - SC - VAT and Sales Tax

Supreme Court: Bitumen Emulsion Taxed as Bitumen under VAT Act

The Supreme Court upheld the High Court's decision that bitumen emulsion should be classified and taxed as bitumen under Entry 22 of the VAT Act. It was ... Classification - bitumen emulsion - rate of tax - 12.5% - residuary entry - 4% - Serial no. 22 Part A of Schedule II to the VAT Act - 20% - Notification No. 100 dated 15.1.2000 issued under the erstwhile U.P. Trade Tax Act, 1948 - Section 11 of the U.P. Trade Tax Act, 1948 - Sections 81 and 58 of the VAT Act, 2008 - whether the Bitumen and Bitumen Emulsion are one and the same commodity for the purposes of interpretation of Entry No. 22 Schedule II Part A of the U.P. Value Added Tax Act, 2002 as was originaly enacted i.e. upto enforcement of notification no. 2758 dated 29.9.2008 - Held that: - the processes result in improvement of the quality of bitumen and there is no change in the characteristics or identity of bitumen so as to transform bitumen into a new product having an identity, characteristic and use. It has been ruled therein that there is a fallacy in the argument raised by the Revenue that bitumen per se would only include its solid hard form which melts at high temperature and not bitumen emulsion. The two varieties and types carry the same composition, do not differ in character and have the same commercial identity i.e. bitumen. That apart, the use or end use test is also satisfied - bitumen and bitumen emulsion are one and the same commodity - taxable at 4% - appeal dismissed - decided against Revenue. Issues Involved:1. Classification of bitumen emulsion under the U.P. Value Added Tax Act, 2008.2. Whether bitumen emulsion should be taxed as bitumen or as an unclassified commodity.3. Applicability of the common parlance test, end use test, and composition test for classification.4. Relevance of the concept of manufacture under VAT and Excise laws.Detailed Analysis:1. Classification of Bitumen Emulsion:The primary issue was whether bitumen emulsion falls under Entry 22 of Schedule II of the VAT Act, which refers to 'bitumen.' The High Court concluded that bitumen and bitumen emulsion are the same commodity for tax purposes. The Supreme Court upheld this view, stating that bitumen emulsion is merely a processed form of bitumen, retaining the same composition, commercial identity, and use.2. Tax Rate Applicability:The Commissioner of Commercial Taxes initially classified bitumen emulsion as an unclassified commodity, taxable at 12.5%. The respondent argued that bitumen emulsion should be taxed at the same rate as bitumen, which is 4% under the VAT Act. The High Court agreed with the respondent, noting that both bitumen and bitumen emulsion are used similarly in road construction and share the same commercial identity. The Supreme Court confirmed this, emphasizing that the legislative intent did not exclude any form of bitumen from Entry 22.3. Tests for Classification:The High Court and the Supreme Court applied the common parlance test, end use test, and composition test to determine the classification. The common parlance test revealed that in the commercial world, bitumen and bitumen emulsion are understood as the same. The end use test showed that both are used in road construction. The composition test confirmed that bitumen emulsion is essentially bitumen in liquid form. The Supreme Court stated that these tests collectively support the classification of bitumen emulsion under Entry 22.4. Manufacture Under VAT and Excise Laws:The Revenue argued that the emulsification process constitutes manufacturing, thus changing the tax classification. The High Court, supported by the Supreme Court, rejected this argument, citing the decision in Commissioner of Central Excise, Bangalore v. Osnar Chemical Private Limited. It was held that the process of emulsification does not create a new product but simply makes bitumen easier to use. The Supreme Court also noted the distinction between what constitutes manufacture under excise laws and under VAT laws, emphasizing that the classification under VAT should focus on the product's commercial identity and use, not the manufacturing process.Conclusion:The Supreme Court upheld the High Court's judgment, confirming that bitumen emulsion should be classified and taxed as bitumen under Entry 22 of Schedule II of the VAT Act. The appeal by the Revenue was dismissed, affirming that the emulsification process does not alter the essential characteristics of bitumen for tax purposes.