TaxTMI 
TaxTMI 
2002 (10) TMI 751
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....gen mixture are "industrial gases" falling under entry 59 of the First Schedule to the Act. 3.. The assessee is a dealer in chemicals such as nitrous oxide, hydrogen, argon, argon nitrogen mixture, etc. The assessment year concerned is 1981-82. In the assessment year concerned, the assessee contended that nitrous oxide is not an item specified in any of the entries in the First Schedule to the Act and that it is liable to be taxed only at the general rate as an unclassified item. Similarly it was contended that hydrogen, argon and argon nitrogen mixture are "industrial gases" falling under entry 59 of the First Schedule to the Act. The assessing authority has taken the view that all the aforesaid items are chemicals falling under entry 71 ....
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....composition of these items it has to be held that they are "chemicals". However this will not solve the problem since entry 71 of the First Schedule to the Act deals with only chemicals not elsewhere provided in the First Schedule. If these items fall under any other entry in the First Schedule to the Act they can be assessed only under those entries because entry 71 says "chemical not elsewhere specified in this Schedule". Thus the task is to find out whether these items fall under any other entry in the First Schedule to the Act. So far as "nitrous oxide" is concerned none of the authorities including the Tribunal had considered as to whether the said item will fall under any other entry in the First Schedule in case it is found to be a ....
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....ing "medicine". Applying the user test or the functional test, prima facie, it would appear that this item will fall under the said entry. However, in these cases the Tribunal has entered a finding that nitrous oxide is not a chemical falling under entry 71 and therefore it is liable to be assessed at the general rate as an unclassified item. According to us the Appellate Tribunal ought to have addressed itself to the question as to whether nitrous oxide will fall under any of the other entries mentioned in the First Schedule before taking the view that it is an unclassified item. Instead, the Tribunal has straight away come to the conclusion that "nitrous oxide" is an unclassified item taxable at the general rate. We are unable to accept t....