2012 (8) TMI 438

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....ed 23/11/2005 and are exigible to tax at 4% under Schedule Entry C-107(8) ? 2) The respondent-assessee is a registered dealer under the Maharashtra Value Added Tax Act, 2002 ('2002 Act' for short). The assessee deals in spectacle glasses, spectacles and spectacle frames, etc. The assessee was paying tax at 4% on sale of spectacles including sunglasses under the schedule entry C-107(8) read with Notification dated 23rd November, 2005. As the sales tax authorities claimed that the sunglasses / goggles are classifiable under the residuary entry E-1 and hence the tax is payable at 12.5%, the assessee made an application on 23rd July, 2008 seeking determination of disputed question (DDQ) viz. Whether, protective sunglasses are taxable....

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....les Tax Department determined the disputed question by holding that though the sunglasses are covered under the said notification dated 23rd November, 2005, it would be absurd to say that the sunglasses are medical devices and accordingly held that the non prescription sunglasses would be covered under the residuary entry E- 1 of the 2002 Act thereby attracting tax at 12.5%. In the other words, according to the Commissioner, ordinary sunglasses sold without any prescription cannot be said to be medical device, even though covered under the notification dated 23rd November, 2005. The Commissioner of Sales Tax, however, held that in view of the fact that the Joint Commissioner of Sales Tax (HQ-1) had issued a clarification on 31st January, 20....

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....ber, 2005 and consequently liable to tax at 12.5% under the residuary entry E-1. 7) We see no merit in the above contention. As per item 5 of the notification dated 23rd November, 2005 corrective spectacles as also protective spectacles are liable to be considered as medical device. It is not the requirement of the notification that the protective spectacles such as protective sunglasses can be considered as medical device only if it is sold under a prescription. 8) In the present case, the Commissioner himself has admitted in his order that the protective sunglasses would be covered under the notification, however, according to the Commissioner, it would be absurd to say that sunglasses are medical devices. 9) If the Legislature i....