TaxTMI 
TaxTMI 
2014 (6) TMI 762
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....te is 2001-2002. The dealer disclosed its taxable turn over of Rs.1,22,37,495.20 and admitted tax liability of Rs.12,13,795/-. The maintenance of accounts was not found irregular and, therefore, figures of sale, purchase and turn over, disclosed by revisionist-assessee, were believed by Assessing Authority. However, he found that dealer has disclosed sale of 'Gutkha' worth Rs.22,18,58,748.32 but no tax liability thereon was admitted. It was said that tax on sale of 'Gutkha' from 01.9.2001 to 31.3.2002 was abolished and for the period 1.4.2001 to 3.8.2011, in view of judgment of Supreme Court in M/s Kothari Products Ltd. Vs. Government of Andhra Pradesh, 2000 STC (119) 553, no trade tax was leviable since it is liable for additional excise duty under Central Excise Tariff Act @ 18%. The total sale of Gutkha for entire assessment year was Rs.22,18,58,748.32, out of that, sale during the period 1.4.2001 to 31.8.2001 was Rs.8,64,71,820.50. The Assessing Authority held that sale of 'Gutkha' during the period 1.4.2001 to 31.8.2001, was taxable as unclassified item i.e. 10% and therefore, dealer was liable to pay tax on sale of 'Gutkha' during aforesaid per....
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....ons A, B and C can be considered together since they relate to taxability of 'Gutkha'. 7. Before dealing in detail of the matter, it would be appropriate to know, what 'Gutkha' is? Though, on record, nothing has been said about it, but learned counsel explain that it is a 'Pan Masala' which also contain 'tobacco'. To distinguish it from 'Pan Masala', which has no element of tobacco, when tobacco is added, it is commonly known as 'Gutka/Gutkha'. In general, Gutka is a dry mixture of crushed areca nut, tobacco, catechu, lime (calcium hydroxide), aromas and flavourings as well as other additives. 8. During course of argument it was sought to be argued that 'Gudaku', 'Gutka' and 'Gutkha' are all one and the same thing and for this purpose, my attention was drawn to first paragraph of judgment in M/s Kothari Products Ltd. (supra), where the Court has said as under: "The appeal is filed against the judgment and order of a Full Bench of the High Court at Andhra Pradesh. The appeal in this Court is restricted to the product "gutka" (gudaku). (emphasis added) 9. In my view, this impression, as given by learned seni....
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....hange very frequently, the Court has to extra careful. 11. Now I come to real issue. The State Government issued a notification dated 31.1.1985 exempting certain goods from tax under Act, 1948 w.e.f. 1.2.1985. The said notification no.ST-II-7038/X-7(23)/83-UP Act XV/48-Order-85 dated 31.1.1985, contains an entry relevant for the purpose of present case at serial no.14, which reads as under: "In exercise of the powers under clause (a) of section 4 of the Uttar Pradesh Sales Tax Act, 1948 (UP Act No.XV of 1948), read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (UP Act No.1 of 1904) and in supersession of all previous notifications issued under aforesaid clause (a) of section 4, the Governor is pleased to exempt, with effect from February 1, 1985, the goods mentioned in column 2 of Schedule hereunder from payment of tax under the said Act of 1948, subject to the conditions, if any, specified in column 3 thereof : S. No. Description of goods Conditions 14 Cigars, Cigarettes, biris (both machine-made and hand-made) and tobacco in any form, whether cured or uncured and whether manufactured or not, including the leaf, stalk and stems of the tobacco plant and all ....
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....ry, it could have been taxed by treating it as 'unclassified goods'. 17. Then comes the effect of provisions of Central Excise Tariff Act, 1985 (hereinafter referred to as "CET Act, 1985"). This Act came into force on 28.2.1986 by notification issued under Section 1(3) thereof. Section 2 of CET Act, 1985 provides: "Duties specified in the Schedule and the Second Schedule to be levied- The rates at which duties of excise shall be levied under the Central Excise Act, 1944 are specified in the First Schedule and the Second Schedule." (emphasis added) 18. It is worthy to mention that earlier, only the word "the Schedule" was mentioned in Section 2, which has now been substituted by the word "First Schedule and Second Schedule" by Finance Act, 27 of 1999, Section 134 w.e.f. 11.5.1999. The First Schedule of CET Act, 1985, Chapter 24, deals with "Tobacco and Manufactured Tobacco Substitutes". This Chapter 24 has four headings 24.01 to 24.04. These headings as substituted by Finance Act, 33 of 1996 vide Section 82, Third Schedule, Part II, and came on the statute-book, read as under: Heading No. Sub-heading No. Description of goods 24.01 24.02 24.03 24.04 2401.10 2401.90 24....
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....ms under heading no.2404 is bearing a brand name, it would also be governed by sub heading no.2404.99. It may not be disputed that product of assessee, in the case in hand, may be covered by entry 2404 under CET Act, 1985 but in order to claim that only by virtue thereof such item would not be subjected to tax under provincial trade tax statute, there has to be some provision in the provincial statute. 21. Sri Bharatji Agarwal, learned counsel for the assessee, however, relied on Apex Court's decision in Kothari Products Ltd. Vs. Government of Andhra Pradesh (2000)9 SCC 263, which deals with provisions contained in Andhra Pradesh General Sales Tax Act, 1957 and in particular, Entry 194 in the first Schedule thereof. 22. I have gone through the aforesaid judgment carefully and finds that in Section 8 of Andhra Pradesh General Sales Tax Act, 1957, there was a provision that a dealer, who deals in the goods specified in the Fourth Schedule thereto, shall be exempt from tax thereunder in respect of such goods. Therefore, all the goods, which were specified in Fourth Schedule of the Andhra Pradesh State statute, levying tax on sales of goods in the State of Andhra Pradesh, were ex....
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....in inter-State trade or commerce- It is hereby declared that the following goods are of special importance in inter-State trade or commerce:-- (ix) unmanufactured tobacco and tobacco refuse covered under sub-heading No. 2401.00, cigars and cheroots of tobacco covered under heading No. 24.02, cigarettes and cigarillos of tobacco covered under sub-heading Nos. 2403.11 and 2403.21 and other manufactured tobacco covered under sub-heading Nos. 2404.11, 2404.12, 2404.13, 2404.19, 2404.21, 2404.29, 2404.31, 2404.39, 2404.41, 2404.50 and 2404.60 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986)" 26. It is worthy to mention that Section 14(ix) does not mention sub-heading number 2404.49. Even erstwhile sub-heading 2404.40 is not mentioned in Section 14(ix). Similarly, entry 2404.99 is also not mentioned in Section 14(ix). 27. Section 15(a) of CST Act, 1956 provides that Sales Tax Law of State shall not impose tax on sale and purchase of declared goods exceeding 5%. Section 15 of CST Act, 1956, as it stood during relevant period of assessment, reads as under: "Restrictions and conditions in regard to tax on sales or purchases of declared goods within a State- Every sales....
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....1. Coming to questions D and E, it is evident from record that used generator was sold but that was not in "discarded and unserviceable condition". It also cannot be said to be "obsolete" since it was in running condition. But if it is an old machinery even then it is covered by item 29 of notification no.KA.NI.-2-101/XI-9(231)/94-U.P.Act-15-48-Order-2000 dated 15.1.2000, which reads as under: "In exercise of the powers under clause (e) of sub-section (1) of section 3-A of the Uttar Pradesh Trade Tax Act, 1948 (UP Act No.XV of 1948), read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (UP Act No.1 of 1904) and in supersession of all previous notifications issued in this behalf, the Governor is pleased to declare that, with effect from January 17, 2000, the turnover in respect of the goods mentioned in column 2 of the List below shall be liable to tax at the point of sale specified in column 3 of said List at the rate specified against each in column 4 thereof: Serial Number Description of goods Points of tax Rate of tax percentage 29 Old, discarded, unserviceable or obsolete machinery, stores or vehicles including waste products, except cinder, coal ash and s....