TaxTMI 
TaxTMI 
2010 (9) TMI 979
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....ems, attached to the Act and that the said item is not a taxable item under the TVAT Act, 2004. Challenging the decision, reached in W.P. (C) No. 114 of 2000, that "pea gravel" is a taxable item, under the TST Act, with effect from February 28, 2000, the writ petitioner, Sri Samir Ghosh, has preferred the appeal, being W.A. No. 59 of 2007. On the other hand, aggrieved by the finding and the decision of the learned single judge, rendered in W.P. (C) No. 355 of 2006, that "pea gravel" is not a taxable item under the TVAT Act, the State-respondents, in the said writ petitions, have come up with the appeal, being W.A. No. 79 of 2007. Since both the writ appeals involve almost identical facts and similar questions of law, the same have been disposed of by a common judgment and order and the parties are represented by the same set of counsels, both the appeals, as agreed to by the learned counsel appearing on behalf of the parties, have been heard together. For the sake of brevity and convenience, we propose to dispose of the two writ appeals by this common judgment and order. The background facts, in brief, may be stated as follows: The writ petitioner, in W.P. (C) No....
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....itution of India, approached this court by filing a writ petition, which was registered as W.P. (C) No. 355 of 2006. The respondents contested the writ petitions, by filing an affidavit-inopposition, rebutting the contentions, raised in W.P. (C) No. 114 of 2000. The respondents, in their affidavit-in-opposition, contended, inter alia, that, though the item "gravel" was not included in entry No. 29 of the Schedule of taxable goods, prior to the 8th amendment of the TST Act, by the said amendment, "gravel" was included as taxable item at entry No. 28 of the Schedule of the taxable goods attached to the TST Act and, thus, the item "pea gravel" was made taxable at 12 per cent with effect from February 28, 2000 under the TST Act. According to the respondents, the item "gravel" includes all types of "gravels" including "pea gravel". In their affidavit-in-opposition, filed in W.P. (C) No. 355 of 2006, the respondents contended, inter alia, that in view of entry No. 193 of the Schedule II(b) to the TVAT Act, which included miscellaneous items not covered in any other Schedule, the petitioner was liable to pay tax for "pea gravel". The prime contention of the State responden....
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....ion, wherein the State of Tripura was a party, it was clearly made known to the State authority that "pea gravel", was not a taxable item. Therefore, it is submitted, that as the State of Tripura, being aware of the said findings/decision, did not include the item "pea gravel" by its specific name, the Legislature must be taken to have intentionally omitted the said item from the list of the taxable items/ goods. It is also contended that if the Legislature had any intention to make "pea gravel" a taxable item, it would have been clearly mentioned the said item in the list of taxable goods. Therefore, it is submitted on behalf of the private appellant, that as the State respondent, even after the 8th amendment, did not include the "pea gravel" as a taxable item, there should not be any difficulty in understating that the law-makers had no intention to make "pea gravel" a taxable item. It is further submitted that, as in the common parlance, as well as in commercial circle, "pea gravel" is not known either as stone or sub-produce of stone, non-inclusion of "pea gravel" in the list, by its specific name, indicates that "pea gravel" was not made a taxable item. Mr. Bhowmik, learned se....
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....also. Referring to the petrography report, received from the Geological Survey of India, NER, Shillong, the learned Additional Government Advocate further summed that "pea gravel" is nothing but a natural stone of small dimension and as such, the item "any other natural stone" appearing at entry No. 67(iv) of TVAT Act included and implied "pea gravel" also. The learned Additional Government Advocate, referring to the entry No. 193 of the Schedule 11(b) of the TVAT Act, has further contended that miscellaneous items, not covered by the Act, included "pea gravel" also. In view of the above, the learned Government Advocate submitted that the learned single judge, while rightly deciding that "pea gravel" was a taxable item under the TST Act, committed error by holding that "pea gravel" was not taxable item under the TVAT Act. In support of his contention, the learned Government Advocate has relied on the decision rendered by a learned single judge of this court in the case of Sri Samir Ghosh v. State of Tripura reported in [2004] 3 GLR 602. In view of the rival arguments, advanced by the learned counsel appearing on behalf of the parties, we deem it appropriate to look into the r....
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....t, i.e., after February 28, 2000, the item "gravel" has been included in the list of taxable item making it, thus, taxable with effect from February 28, 2000. In the case of Sri Samir Ghosh v. State of Tripura [2004] 3 GLR 602, a learned single judge of this court referred to the following definition of "gravel" as provided in "Engineering Materials" by Surendra Singh. The definition reads as follows: "1.12.12. Gravel.-These are water worn pebbles of any kind of stone and are up to 7.5 cm. in diameter. Usually found in river beds or in alluvial tracts. These are used for road blindage, surfacing and in concrete." From the above definition of gravel, it is found that gravel is nothing but pebbles of any kind of stone within specific size. Therefore, scientifically, gravel is also a stone up to the size of 7.5 cm in diameter. In the supply order also, the term "gravel" was used without prefixing the term "pea gravel" at clauses 2 and 3 of the terms and conditions therein. Clauses 2 and 3 of the said terms and conditions read as follows: "Physical characteristic.-(i) The gravel shall consist of hard quartz (about 96 per cent sio) with an average specific gravity of not les....
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.... species. Therefore, "gravel" includes, "pea gravel" and "pea gravel" was taxable under the TST Act with effect from February 28, 2000. The second point, raised before us, is whether "pea gravel" is a taxable item under the TVAT Act. Admittedly, the TST Act has been repealed by the TVAT Act. Schedule II(b) to the TVAT Act contains a list of goods taxable at the rate of 12.5 per cent. Entry 67 of Schedule II(b), amongst others, contains the following items: "(iv) Black stone, kota stone or any other natural stone." Entry 193 of the said Schedule reads as under: "193. Miscellaneous items not covered in any other Schedule." The learned Government Advocate, referring to the term "natural stone" as well as the item, mentioned at entry No. 193 aforesaid, submits that the "pea gravel" is also a natural stone and as such, the term "natural stone" would cover "pea gravel" for the purpose of levying tax under the TVAT Act. The learned Government Advocate, drawing our attention to entry Nos. 67 and 193 aforesaid, submits that as neither "pea gravel" nor "gravel" has been mentioned in the list aforesaid, the term "miscellaneous items" appearing at entry No. 193 woul....
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....ecifically exempted under Schedule III, are taxable under the TVAT Act. Entry No. 193 of Schedule II(b) of the Act is a residuary entry, which provides that the items, which are not covered in any other Schedule, shall be taxable under Schedule II(b) at the rate of 12.5 per cent. The item "pea gravel" is not included in the list of exempted goods as per Schedule III of the Act. The said item is also not covered by any other Schedule of taxable goods, namely, Schedule II(a), II(b), II(c) or II(d). The said item, although not covered by entries 1 to 192 of Schedule II(b) to the Act, shall being an item, not covered by any of the Schedules, become taxable at the rate of 12.5 per cent, as a residuary item, under entry No. 193 of Schedule II(b) to the Act. In view of the above provisions of the statute and the discussion aforesaid, we do not find any force in the submissions advanced on behalf of the respondent in Writ Appeal No. 79 of 2007, that since "pea gravel" has not been specifically made taxable under the TVAT Act, no tax can be levied on the said item inasmuch as "pea gravel", not being specifically included in entry No. 28 to the Schedule of the taxable goods, under the Tri....