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2014 (4) TMI 294
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....on 16.09.2005, 17.02.2006 and 20.03.2006 would prevail in respect of classification of the article in question. 4. The appellant (hereinafter referred to as "the dealer") manufactures various categories of cables including industrial cables. It is contended that these articles were properly classifiable under Entry No.40 to the Schedule-III which reads as follows: "Industrial Cables/High Voltage Cables, XLPE, Jelly filled Cables, Optical Fibres" 5. The assessee referred this question to the Commissioner, DVAT under Section 84 of the DVAT Act specifically on the issue as to what would be the rate of VAT chargeable on such industrial cables. The Commissioner in the determination made on 22.02.2009, seeking recourse to the three circu....
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.... that of the Bombay High Court in Commissioner of Sales Tax v. Dev Enterprises Ltd., (2011) 42 VST 504 (Bom). It was held further that the circulars which the Commissioner had relied upon could not be binding, at any rate could not prevail over the express terms of the statute. The minority opinion of the Chairman also relied upon other judgments. The majority view however by its reasoning upheld the determination of the Commissioner and found no infirmity with it. 7. Learned counsel for the dealer-appellant contended that the majority opinion is contrary to the statute itself inasmuch as it has upheld the interpretation largely guided by the circulars. Learned counsel pointed out that Entry No.40 expressly mentions "industrial cables" a....
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....l cables" and were not covered by it. The assessee's products were clearly not covered by the exhaustive enumeration which in turn coincided with the HSN/CET references. Consequently the goods in question fell in the residuary entry and not under Entry No.40. 9. In this case, it was noticed that earlier the express terms of the statute clearly referred to „industrial cables'. The Statute does not stop there. Rather, it goes on to enumerate other categories of industrial cables such as „Industrial Cables/High Voltage Cables, XLPE, Jelly filled Cables, Optical Fibres'. The circular of 16.09.2005 appears to be clarificatory and lists out 10 different kinds of cables and further enumerates that each one of that is classifiable un....
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....e to be looked into for the purposes of interpretation. In the absence of such express reference - in the parent statute - the reference through a circular, cannot guide the plain and commercial parlance meaning of the expression attributed to the article or goods in question. In this context this Court notices that various parts of the statute - the DVAT Act - contain specific and pointed references to HSN or Central Excise Tariffs. Illustratively the Entry No.48 (textile not including imported variety of textiles) makes specific reference to HSN Entry No.63.01, 02, 03, 04, 05 and 06 by way of exclusion; likewise Entry No.41A of the 3rd Schedule contains not less than 30 references enumerating various CET items e.q. CET heading No.8469-71,....
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....te: (4) Where the description against any heading or subheading is shown as "other", then, the interpretation as provided in Note 2 shall apply." 11. In view of the above provisions this Court is of the opinion that when there is clear guidance by the statute i.e. the DVAT Act as to in respect of which articles or goods the HSN and CET would have to be referred as part of the statute, it is not logical to import, for the purpose of interpretation, HSN/CET references to articles of goods which do not contain any such references. In the latter circumstance, as in the present case, "the common parlance test is applicable". 12. Now as to the circumstances of this case the assessee has relied upon the definition of "cable" in Section 2(g) ....
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....ral Electricity Authority (Furnishing of Statistics, Returns and Information) Regulations, 2007 defines "voltage" as under:- (2) "Voltage" means the difference of electrical potential measured in volts, between any two conductors or between any part of either conductor and the earth as measured by a suitable voltmeter and is said to be - (a) "high voltage" where the voltage exceeds 650 volts but does not exceed 33000 volts under normal conditions; and (b) "extra high voltage" where the voltage exceeds 33000 volts under normal conditions." 14. In the present instance the product i.e. industrial cables are described as having capacity of 1100 volts. There cannot be any dispute that the Indian Electricity Act and the Electricity Su....