2009 (8) TMI 1103

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.... under entry No. 16 of Schedule II, Part II appended to the Act. The petitioners, who are manufacturer of "emulsified bitumen", being aggrieved by the recovery of the VAT at 12.5 per cent made an application to the Commissioner of Commercial Tax, Madhya Pradesh, Indore that "emulsified bitumen" falls under the entry 16, Part II, Schedule II commonly known as "bitumen and coal tar", and as such, the product manufactured by the petitioners should also be taxed at the rate of four per cent and not at 12.5 per cent. After hearing the parties, learned Commissioner came to the conclusion that bitumen and coal tar are different than emulsified bitumen, and therefore, the same would not fall under entry No. 16 of Schedule II, Part II, but would f....

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....ngerous, with a risk of serious burns. It also requires costly equipment for the heating, storage and application of bitumen, which must be performed on site. Bitumen that has been mixed with petroleum solvents is called cut-back bitumen. The solvents, usually kerosene, play no part in the function of the binder and are costly. The solvents act to decrease the viscosity of the bitumen making it more workable. From the research work, it would clearly appear that the bitumen is converted into bitumen emulsified with the help and assistance of emulsifier and a new product comes into existence. In the matter of Chowgule & Co. Pvt. Ltd. v. Union of India [1981] 47 STC 124, the Supreme Court has held that: (at page 130 of STC) ". . . The test th....

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....Court was of the opinion that "stone" even after it is crushed or broken, would continue to be "stone" though it may be named as "boulder", "small stone", "chips", "gitti", etc. Reliance was placed upon a judgment of the Supreme Court in the matter of Porritts & Spencer (Asia) Ltd. v. State of Haryana [1978] 42 STC 433, to contend that "dryer felts" which are commonly used as absorbents held to be fallen in entry known as "textiles". Whether, in the present case, "emulsified bitumen" should also fall within the larger entry commonly known as "bitumen and coal tar"? In the matter of Porritts [1978] 42 STC 433 (SC), the question before the Supreme Court was that whether "dryer felts" made out of cotton or woollen yarn by process of weaving ....