2023 (4) TMI 150 - HC - VAT and Sales Tax

High Court: Melamine utensils not subject to entry tax under Odisha Entry Tax Act.

State of Odisha Versus D.N. Industries

The High Court dismissed the revision petition, holding that melamine utensils are non-scheduled goods under the Odisha Entry Tax Act, 1999, and thus not ... Classification of goods - melamine utensils, i.e., plates, bowls, spoons and dinner sets, etc. - exigible to tax @ 1% under Part-I of Schedule to the OET Act or not - misclassification of melamine utensils’ as non-scheduled goods under the OET Act, 1999, or not - Reduction of demand raised in the assessment framed under Section 10 of the Odisha Entry Tax Act, 1999 to NIL - tax periods from 01.04.2007 to 31.12.2010 - conclusion of proceeding ex parte whereby entry tax has been levied on the sale of finished goods as per Section 26 taking into consideration the figures disclosed in the returns and the turnover suppressed as alleged. HELD THAT:- There is no ambiguity in mind that “melamine” being “used in making plastics”, it itself cannot be said to be “plastic”. Therefore, considering that “melamine” may be one of the ingredients for manufacture of “plastic”, it cannot be said to be “plastic” simpliciter and thereby melamine utensils may not strictly fall within the connotation of “plastic goods”, the Revenue has abandoned such contention. The word “appliances” being word of day-to-day use, its popular or commercial parlance meaning has to be adopted as against its scientific or technical meaning because of the well-settled principle of interpretation that in taxing statutes, words of everyday use must be construed not in the scientific or technical sense but as understood in common parlance. However, the word “appliance” as used in Entry 35 of Part-II of Schedule is to be construed in the sense it is accompanied by other items. Further investigation into the matter revealed that in COMMISSIONER, SALES TAX VERSUS HM INDUSTRIES [1980 (1) TMI 172 - ALLAHABAD HIGH COURT] it has been made clear that sewai ki machine is used as a means to an end; it is a device which gives the desired result by producing sewai by mechanical method. It is therefore an appliance. Sewai ki machine made of iron (machine for producing vermicelli) is understood in common parlance as kitchen appliance. Kitchen is a room where food is cooked, and it is in this sense that it is normally understood. An article may not be of direct use yet its use may be such without which it may not be possible to run the kitchen. Thus, the item in question cannot be attributed the meaning of “all kinds of kitchen appliance” as enumerated in Entry 35 of Part-II of the Schedule. Entry 87 of Part-I of Schedule used the symbol “/” which is preceded by “kitchen ware” and succeeded by “utensils”. It is well established principle of construction that an effort must be made to give effect to all parts of statute and unless absolutely necessary, no part thereof shall be rendered surplusage or redundant. The intention is clear that symbol “/” in Entry 87 of Part-I signifies that the OET Act wanted to restrict the levy of tax to such “kitchen ware” which are similar in nature and use as “utensils” and such utensils must be of similarity with goods as that of “rice cooker” and “pressure cooker”. Therefore, drawing distinction between entries in the OET Act and entries under the Karnataka statute, it may not be inept to say that Stovekraft Pvt. Ltd. (supra) does not come in aid of the contention of the Revenue. Whether “dinner set” made of melamine fell within the scope of any of the entries in the Schedule to the OET Act was never under consideration before the taxing authorities. It is the “melamine utensils” which was subject-matter of examination by the authorities. Even the grounds of second appeal filed by the Revenue did not suggest the same. Instead of making prevaricating statements, the Standing Counsel for the Revenue before the Tribunal should not have confused by taking new plea for adjudication as to whether plates, bowls, spoons and dinner sets would be exigible to rate of tax @ 1% without specifying the particular entry in which “melamine utensils” would fall - As the item “melamine utensils” does not fit into any of the entries as suggested by Sri Sunil Mishra, learned Additional Standing Counsel, the Tribunal is apt to hold the same to be non-scheduled goods, and therefore, entry tax is not exigible on the finished goods sold by the opposite party-dealer. Hence, the revision preferred by the Revenue under Section 19 of the OET Act fails. Since “plates, bowls, spoons and dinner sets” were never came for adjudication before the Assessing Authority nor the First Appellate Authority, for the first time before the Tribunal the Revenue could not have raised such a plea - the Odisha Sales Tax Tribunal has not committed error in classifying “melamine utensils” as non-scheduled goods under the OET Act, 1999. Revision petition dismissed. Issues Involved:1. Taxability of melamine utensils under the Odisha Entry Tax Act, 1999.2. Classification of melamine utensils as scheduled or non-scheduled goods.3. Reasonableness and correctness of the Tribunal's order.Summary:Issue 1: Taxability of melamine utensils under the Odisha Entry Tax Act, 1999The opposite party-dealer, engaged in the manufacture and sale of melamine utensils, was assessed under Section 10 of the Odisha Entry Tax Act, 1999 (OET Act) for tax periods from 01.04.2007 to 31.12.2010. The Sales Tax Officer levied entry tax on the sale of finished goods, raising a demand of Rs.1,12,503/- and imposing a penalty of Rs.2,25,006/-. The Deputy Commissioner of Sales Tax (Appeal) nullified the demand, holding that melamine utensils do not fall within any entries in the Schedule of the OET Act. This decision was affirmed by the Odisha Sales Tax Tribunal, leading the State of Odisha to file a revision petition before the High Court.Issue 2: Classification of melamine utensils as scheduled or non-scheduled goodsThe Tribunal and the Appellate Authority concluded that melamine utensils do not fall under Entry Nos. 23 (plastic goods), 76 (stainless steel utensils), 79 (articles made of China clay or porcelain), or 91 (glassware and crockery) of Part-I of the Schedule. The Tribunal also rejected the classification of melamine utensils under Entry 35 of Part-II (all kinds of kitchen appliances) and Entry 87 of Part-I (rice cooker, pressure cooker, and kitchen ware/utensils) of the Schedule. The High Court upheld these findings, stating that melamine, being a compound used in making plastics, does not itself constitute plastic goods. The Court emphasized that melamine utensils do not fit within the specific entries of the Schedule and thus are non-scheduled goods, not subject to entry tax.Issue 3: Reasonableness and correctness of the Tribunal's orderThe High Court found no fault with the Tribunal's reasoning that the Revenue's shifting stance and lack of specific grounds in the second appeal led to confusion. The Tribunal correctly applied the principle of ejusdem generis, concluding that melamine utensils do not fall within the same category as rice cookers, pressure cookers, or kitchen ware/utensils. The Court also noted that the Revenue failed to provide evidence or amend grounds to support its claims. Consequently, the High Court dismissed the revision petition, affirming the Tribunal's decision that melamine utensils are non-scheduled goods under the OET Act.Conclusion:The High Court dismissed the revision petition, holding that melamine utensils are non-scheduled goods under the OET Act, 1999, and thus not subject to entry tax. The Tribunal's order was found reasonable and correct, with no error in classifying melamine utensils as non-scheduled goods.