1995 (10) TMI 207

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....r section 20(1) of the Act is questioned. The Commissioner revised the order of the Appellate Deputy Commissioner, who having set aside the assessment order in so far as the disputed turnover is concerned and remanded the case to the assessing authority. This is what the appellate authority has said: "The whole argument of the learned authorised representative is that 'cem powder' is nothing but pigment powder. There is nothing on record to show how the assessing authority came to the conclusion that 'cem powder' is not a 'distemper'. If the chemical composition of 'cem powder' covered by the disputed turnover is the same as that of pigment powders, the appellant is entitled to the relief prayed for. Upon the appellant adducing proof that ....

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....e to treat the goods in question as falling within the purview of entry 45. The appellate authority having observed that there was nothing on record to show how the assessing officer came to the conclusion that the cem powder is not distemper, surprisingly remanded the matter to the assessing authority to find out whether cem powder is a kind of pigment powder, though the word "pigment powder" is not contained in entry 45 to Schedule I of the Act. To the extent that the Appellate Deputy Commissioner misdirected himself in ordering an enquiry into the question whether cem powder is a pigment powder, we must say that the appellate authority committed an illegality and the action of the Commissioner in setting aside that order cannot be faulte....

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....sion. Moreover, the Commissioner had not applied one of the relevant tests to determine whether the commodity falls within one or the other of the taxation entries. The trade usage or the commercial parlance is one of the tests that could have been adopted to reach the conclusion. In this context, it is pertinent to point out that the assessees claimed that the original manufacturers treated cem powder as cement-based water paint. This was noted by the Commissioner and there is some ambiguity in the order of the Commissioner as to whether he accepts the claim or not. This is another reason why we feel that the Commissioner's order cannot be sustained. That apart, the Commissioner has not considered the aspect whether cem powder can be treat....