TaxTMI 
TaxTMI 
2013 (1) TMI 714
X X X X Extracts X X X X
X X X X Extracts X X X X
....nder challenge is the order dated November 21, 2008 passed by the Commissioner of Taxes, Assam, respondent No. 2, in exercise of powers under section 105 of the Assam Value Added Tax Act, 2003, for short, "the Act", clarifying that aluminium rolled products such as sheets, plates and foils shall not come under Sl. No. 26 of the Second Schedule to the Act, and that such products shall be taxable at the rate of 12.5 per cent. The petitioners also pray for a direction that aluminium rolled products such as sheets, plates, foils fall within the purview of Sl. No. 26 of the Second Schedule to the Act and, therefore, liable to be taxed at the rate of four per cent. The petitioner-company is engaged in the business of manufacturing and dealing in aluminium and its products and is registered under the provisions of the Act. The petitioners paid tax at the rate of four per cent on the sale of aluminium rolled products manufactured by it treating the same to be covered under entry 26 of the Second Schedule to the Act. On June 27, 2008, the jurisdictional Superintendent of Taxes, namely, respondent No. 3, upon inspection of documents and papers in the premises of the petitioners, seized ce....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ourt in the case of State of Madhya Bharat (now the State of Madhya Pradesh) v. Hiralal reported in [1966] 17 STC 313 (SC); AIR 1966 SC 1546, where the apex court had rejected the contention that expression "iron and steel" means iron and steel in the original condition and not iron and steel in the shape of bars, flats and the jurisdictional Superintendent of Taxes, namely, respondent No. 3, upon inspection of documents and papers in the premises of the petitioners, seized certain documents and papers on the ground that the petitioner-company had accounted the sales derived from aluminium sheets, wire rods at lower rate of tax than actually chargeable rate of tax thereon, resulting in underdeclaration of tax liability during the relevant periods. Respondent No. 3 served notice dated July 10, 2008, requiring the petitioners to appear before him on July 29, 2008 and to show cause why the turnover of the petitioners for the relevant periods shall not be charged at the rate of 12.5 per cent instead of four per cent and as to why proceedings for levying correct amount of recoverable tax along with interest and penalty as per the Act shall not be initiated against the petitioners. Th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lled (aluminium sheet), wire rods and aluminium extrusions. Sri Radjeshyam Sharma, advocate appeared on behalf of the petitioner and placed his submissions. He submitted that entry at Sl. No. 26 of the Second Schedule appended to the Assam Value Added Tax Act, 2003 reads as 'ferrous and non-ferrous metals and alloys, nonmetals such as aluminium, copper, zinc and extrusions of these'. Therefore, the word 'aluminium' would cover aluminium in its primary form, i.e., ingots/wire rods that are directly cast out of mother metal, the words 'extrusions of those' would mean secondary products of aluminium like sheet, plate, foil, etc. The submission of the petitioner perused. The entries at Sl. No. 26 include aluminium and its extrusions. The item represented by the petitioner includes aluminium sheets, aluminium wire and rods and aluminium extrusions. In a number of court cases, it is clarified that aluminium rolled products are different from aluminium and it also does not come under 'extrusions'. Hence it is clarified that aluminium rolled products such as sheets, plates and foils shall not come under entry at Sl. 26 of the Second Schedule therefore ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 3A(2) of the U. P. Sales Tax Act, 1948, turnover in respect of goods set forth, namely, all kinds of minerals and ore and alloy except copper, tin, zinc, nickel or alloy of those metal only, in item No. 6 of the attached Schedule, was liable to be taxed at all points of sale at 3 V per cent. On May 30, 1975, a notification was issued under the same enactment in which item 1 of the Schedule had included all kinds of minerals, ores, metals and alloys except those not included in other notification issued under the Act, and tax at the rate of two per cent was prescribed by the notification. By the notification dated May 30, 1975, notification dated December 1, 1973 was amended and item No. 6 was deleted. Prior to these two notifications also, there were number of notifications issued on the related entries. The jurisdictional assessing authority applied rate of three per cent and two per cent under notification dated December 1, 1973 and notification dated May 30, 1975, respectively, to aluminium ingots only and treated the remaining products as unclassified items attracting sales tax at seven per cent. In a writ petition filed against the provisional assessment, which was subsequ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sale. In Steel Stores [2010] 34 VST 243 (Gauhati); [2010] 5 GLR 802, in view of the various notifications issued by the Government, the question that had emerged for consideration was the location of aluminium plane sheets and the entry to which it could be said to have been lodged during the period January 1, 2000 to February 18, 2002 for correct assessment of tax. While the assessee contended that it would be in entry 45(b) of the Second Schedule, the Revenue wanted the court to accept that it was encompassed in entry 2 of residuary Schedule III. The learned single judge noted the events leading to the controversy as follows (page 256 in 34 VST): "26. To reiterate, prior to the issuance of the notification dated January 27, 2000, aluminium sheets were entered in entry 10 of the Fourth Schedule to the Act. Entry 45(b) in the Second Schedule did not mention aluminium therein. It was only by the notification dated January 27, 2000 with effect from February 1, 2000 that aluminium was incorporated in entry 45(b) as one of the non-ferrous metals and their alloys as referred to therein excluding, however, the finished goods made therefrom. Significantly, aluminium sheets were with....