TaxTMI 
TaxTMI 
2010 (7) TMI 908
X X X X Extracts X X X X
X X X X Extracts X X X X
.... order dated September 8, 2009 of the Joint Commissioner of Commercial Taxes, Public Relations (respondent No. 1) communicated to the applicantcompany under memo No. 644CT/PRO/9I/PRO/09/479 dated September 8, 2009. Such communication was made by respondent No. 1 with reference to the applicant-company's letter dated June 12, 2009. It was communicated therein that "cleaning machine" being not covered by Schedules A, B, C of the West Bengal Value Added Tax Act, 2003 (in short, "the VAT Act") would be exigible to tax at 12.5 per cent as an unspecified item. The applicant has also challenged memo No. 2764JC(BC) dated December 22, 2009 issued under signature of the Sales Tax Officer, Behala Charge (respondent No. 2) alleging short-payment of tax....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g industry, moulded product manufacturing industry, mining industry and food processing industry. It is also used for prevention of contamination of marine environment in harbours, foundries, etc. These machines include hot water high pressure cleaner, brackish water cleaner, vacuum sweepers, safety vacuum system, wet and dry vacuum cleaners. According to the petitioner, it is supplying the disputed items to large industries, Government, semi-Government and all areas in defence establishments, municipal corporations, railways, State transport undertakings, food processing industries, automobile industries, multiplexes and shopping malls, commercial establishments, national and international luxury hotels, fast food outlets and restaurant....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Suddenly, the applicant started paying tax at four per cent claiming those items as "cleaning machines and spares". It is stressed by the learned State Representative that in whatever name these disputed items are sold in the market, they are nothing but vacuum cleaners-may be in a very sophisticated form. These have got no direct link with the production process. It is strongly urged by the learned State Representative that the items enumerated against entry 54B of Part I of Schedule C to the VAT Act are used for the purpose of production. Under the 1994 Act, such items were shown against entry 146 of Schedule IV to the 1994 Act whereas vacuum cleaners were shown against entry 111 of that Schedule and the rate of tax on vacuum cleaner....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the purpose of entry 54B of Part I of Schedule C to the VAT Act. It has been asserted by the learned advocate that the disputed items are covered by serial No. (xxviii) of entry 54B as aforesaid. Entry against serial No. (xxviii) refers to "all other machinery not specified in items (i) to (xvii)". The disputed items are no doubt machines but not connected with any particular industry. These are independent and complete machines and have their own separate use. In the case of Anatech Instruments Pvt. Ltd. v. CTO, Sealdah Charge (Case No. RN 823 of 2009, judgment dated April 28, 2010), this Tribunal had to answer almost identical question. In that case, the petitioner was carrying on business of buying and selling diesel smoke meter an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt and private parties for checking pollution levels. The disputed items, as it appears to us, are not productive machinery used in any industry. Cleaning operations as are being undertaken by the disputed items, cannot also be treated as a process but for which the production cannot be made. In view of the facts and circumstances of the case, we are of the view that the disputed items are not covered by entry against serial No. (xxviii) of 54B of Part I of Schedule C to the VAT Act. Before we part with this case, we would like to deal with the question raised by the petitioner. The question is, "if earth moving machineries (serial No. xxviii) of entry 54B, as aforesaid, can fall within the meaning of "plant and machinery" for the ....