TaxTMI 
TaxTMI 
TaxTMI 
2015 (3) TMI 39
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, other than the goods specifically exempted under Schedule III, are taxable under the TVAT Act. Entry 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." Sri Bhowmik, learned senior counsel appearing for the assesseepetitioner submits that there was an error apparent on the face of the record. According to him, Entry No. 193 of Schedule II(b) of the Tripura Value Added Tax Act, 2004 (hereinafter referred to as the TVAT Act) does not entitle the State Government to levy tax on each and every item and it cannot be read in the manner in which it has been in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....inter-State trade or commerce, or (ii) outside Tripura, (iii) in the course of the import of the goods into or export of the goods out of the territory of India. Explanation.-Sections 3, 4 and 5 of the Central Sales Tax Act, 1956 shall apply for determining whether or not a particular sale or purchase has taken place in the manner indicated in sub-clause (i), sub-clause (ii) or sub-clause (iii). (c) in case of turnover of sales in relation to works contract, the charges towards labour, services and other like charges are subject to such conditions as may be prescribed: Provided that in cases where the amount of charges towards labour, services and other like charges in such contract are not ascertainable from the terms and conditions of the contract, the amount of such charges shall be calculated at the prescribed percentage. (d) such other sales on such conditions and restrictions as may be prescribed." The petitioner thereafter filed yet another writ petition being W.P (C) No. 355 of 2006 in which his challenge was that even under the TVAT Act, no tax was payable on the sale of pea-gravel. Both the writ petitions were disposed of by a learned Single Judge of the Agartala B....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... rightly so that entry No. 193 of Schedule II(b) covers all items not mentioned in any other schedule. The wording of the section and the Schedule is clear and unambiguous. There can be no manner of doubt that the intention of the Legislature was to impose tax on each and every item which is sold except those which were specifically exempted by inclusion in Schedule III. All other goods sold and falling within the ambit of section 5 would be amenable to payment of tax at the rates mentioned in the various Schedules. If an item does not find mention in any of the other Schedules, then it would necessarily fall within the ambit of residuary entry No. 193 of Schedule II(b) and would be exigible to tax at 12.5 per cent per annum prior to 2011 and now at 13.5 per cent per annum. 9. Sri Bhowmik has relied upon the judgment of the apex court in HPL Chemicals Ltd. v. Commissioner of Central Excise, Chandigarh [2006] 6 RC 508; [2006] 5 SCC 208. In para 31, the apex court held as follows (page 521 in 6 RC): "31. It was submitted by the learned senior counsel appearing for the Revenue that the goods were classifiable under Heading No. 38.23 (now 38.24) as 'residual products of the chemi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... any goods are mentioned in any of the Schedules then they cannot be covered by the residuary entry. However, if the goods are not mentioned in any of the Schedules than they would fall within the ambit of the residuary entry. Therefore, we are in total agreement with the findings arrived at by the learned Division Bench that since pea-gravel is not included in the list of exempted goods and also not covered by any other item in any of the other Schedules, the same would fall under entry No. 193 of Schedule II(b) of the TVAT Act. Therefore, we find no merit in the review petition. Therefore, we find no merit in the review petition. (B) W.P. (C) No. 400 of 2011. 11. Coming to the writ petition, after the earlier writ petition was disposed of by the Division Bench, the petitioner filed an SLP which was rejected. The petitioner then filed a review petition which we have rejected hereinabove. The petitioner has also filed a second writ petition and now additional grounds have been raised to challenge the levy of tax on peagravel. The assessee has raised the following contentions: (1) that entry No. 193 of Schedule II(b) is vague and amounts to excessive delegation of authority by ....