2013 (10) TMI 1332

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....ial Taxes Officer (Anti Evasion), Rajasthan First, Jaipur ['CTO (AE)'] and Commercial Taxes Officer, Circle-A, Bhiwadi ('CTO') vide assessment orders passed on various dates. These 13 petitions arise out of assessment orders passed on different dates by CTO (AE) and CTO pertaining to different quarters. For the sake of convenience facts as narrated in S.B. Sales Tax Revision No.78/2012 are being considered. The revision petitions were admitted by this Court by order dated 19.04.2012 on the following question of law:- "Whether in the facts and circumstances of the case, Rajasthan Tax Board was legally justified in not classifying the 'sun-glasses' under Entry 125 of Schedule IV of Part A as 'Spectacles, parts & components thereof, contact lens and lens cleaner' taxable @ 4% but classifying under the residuary clause under Schedule V @ 12.5%?" The facts in brief may be noticed thus: the petitioner is a registered dealer under the VAT Act and is engaged in manufacturing/importing/trading and selling of sunglasses and frames thereof. A survey of the dealers' premises was conducted by the CTO (AE) and, on investigation, it was found that t....

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.... say, namely. The scope and ambit of such entry is specific, limited and confined to what has been described there in. The entry at Sr. No.-125 of the Schedule -IV, as claimed by the assessee, is read as "spectacles, part and components thereof, contact lens and lens cleaner." This entry is plain, clear and without any use of genus, hence, it is an exhaustive and restrictive entry. This view would get further strength if it is compared with those entries of inclusive and illustrative ones of this schedule only. For example, entries of this Schedule IV at Sr. No.-104 - printed material including diary, calender etc. These all entries are found with genus and comparison between these on one hand and that at Sr. No.-125 would show a distinction is that all the entries at Sr. No.-2, 3, 21 & 104 are with a genus and scope enlarging words- such as, like, other, etc, including, hence inclusive and illustrative entries. Whereas, entry at Sr. No.-125 is with specific description and it ends without having any genus and scope enlarging word, hence it is a restrictive and exhaustive entry. Accordingly, inclusion of sunglasses into it, found to be not permissible. 11. The principle....

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....No.-2 above would become redundant which is not allowed in the law. 12. General meaning/understanding of the goods in the trade parlance is an important basis for classification purpose and this issue is no longer a res integra though the assessee has pleaded this principle in their favour, however not found with any support for concluding this being to in this case, on the contrary in the trade also, sunglasses are not sold/bought as spectacles or contact lens. Spectacles and contact lenses are used to correct the defects & deficiencies of vision, whereas sunglasses are normally used to protect eyes from sunrays, dust, wind and for beautification but not in any case to correct the defect of vision. Infact, in the trade both are distinct product, known differently and used for different purpose. In Rajasthan, these are known and called as DHOOP KE CHASHME & NAZER KE CHASHME, dhoop ke chashme as sunglasses and nazer ke chashme as spectacles. These are used by different name and for different purpose. Empteen number of decision of judicial foura including Hon'ble Apex Court's decision, it has been held that for classification of goods, proper meaning attached to them....

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....chedule IV. Therefore the reply submitted by the dealer deserves to be disallowed and the relied upon cited decisions are not applicable in the facts and circumstances in the present case. On the grounds as discussed here in above, the goods viz. RayBan brand sunglasses is determined under entry -1 of the Schedule-V of the Notification No-F.12(63)FD/Tax/2005-158 Dated 31/03/2006, @ 12.5 of the VAT." Feeling aggrieved by the assessment order dated 04.02.2008, the petitioner filed appeal before the DC (Appeals), who by order dated 24.07.2009 while upholding the conclusions arrived at by the CTO (AE) both on tax and penalty, dismissed the appeal filed by the petitioner. The DC (Appeals) held as under:- "Goods not covered in any other schedule under the Act or under any notification issued under section 4 of the Act, is taxable @12.5%" The petitioner aggrieved by the orders passed by the CTO (AE) and DC (Appeals) approached the Tax Board by way of filing appeal under Section 83 of the VAT Act. The Tax Board after hearing the parties, while maintaining the findings of the CTO (AE) and DC (Appeals) regarding applicability of tax on the goods dealt with by the petitioner @ ....

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....d Bharat Forge & Press Industries (P) Ltd. v. Collector of Central Excise : 1990 (45) ELT 525 to contend that unless the department can establish that the goods in question cannot be brought under any of the specific items mentioned in the tariff, resort cannot be had to the residuary item. Learned counsel also referred to certificates issued by the certain dealers and hospitals in support of his contentions. Replying to the submissions, it was contended by learned counsel for the Department that all the three authorities below have held concurrently against the petitioner and, therefore, in fact no question of law arises in the present case. It was submitted that the intention of Legislature has always been to charge tax at a low rate on the spectacles, which did not include sunglasses. Reference was made to the entry which existed in the year 1995-96, which provided for 'spectacles upto Rs. 400/-', which later on was amended from time to time and, ultimately, resulted in the Entry 125 of Schedule-IV of VAT Act in its present form. It was submitted that it is the common parlance test, which needs to be applied while interpreting the entry in the Schedule and spectacles ....

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.... headings and any corresponding chapter or section notes. Where these are not clearly determinative of classification, the same shall be effected according to Rules 3, 4 and 5 of the general rules of interpretation. However, it is also a well known principle that in the absence of any statutory definitions, excisable goods mentioned in tariff entries are construed according to the common parlance understanding of such goods. 18. Time and again, the principle of common parlance as the standard for interpreting terms in the taxing statutes, albeit subject to certain exceptions, where the statutory context runs to the contrary, has been reiterated. The application of the common parlance test is an extension of the general principle of interpretation of statutes for deciphering the mind of the law maker; "it is an attempt to discover the intention of the Legislature from the language used by it, keeping always in mind, that the language is at best an imperfect instrument for the expression of actual human thoughts." [(See Oswal Agro Mills Ltd (supra)]. 31. Therefore, what flows from a reading of the aforementioned decisions is that in the absence of a statutory definition in prec....

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....tacles of wire gauze worn to protect the eye from the entrance of foreign bodies." In the Oxford English Dictionary on Historical Principles, spectacle has been defined as :- "A means of seeing; something made protecting the eyes from dust, light, etc., consisting of two glass lenses set in a frame which is supported on the nose, and freq. kept in place by 'legs' passing over the ears." In the Webster's Dictionary and Thesaurus of the English language, spectacle has been defined as :- " (pl.) a pair of lenses, mounted in a light frame which rests on the bridge of the nose and hooks or rests behind the ears, designed to correct certain defects of vision or to protect the eyes spec-ta-cled adj. wearing spectacles " In the New Encyclopedia Britannica, spectacles have been used as synonyms to eye glasses and in so far as relevant have been defined as :- "eyeglasses, also called GLASSES, or SPECTACLES, lenses set in frames for wearing in front of the eyes to aid vision or correct defects of vision In sunglasses, the lenses are tinted to reduce light transmission and avoid glare. See also contact lenses; lense." Besides the above, reliance has been placed....

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....substituted as spectacles, parts and components thereof, contact lens and lens cleaner. The inclusion of contact lens and lens cleaner, meant for correction of vision, which has gained sizable use over a period of time, as compared to the year 1995 when the entry was first introduced, further establishes the fact that the entry in question relates to only corrective equipment and not so called protective equipment i.e. the sunglasses as sought to be projected by the petitioner. The Harmonized System of Nomenclature (HSN) relied on by learned counsel for the petitioner indicates as under:- "90.04 - Spectacles, goggles and the like, corrective, protective or other. 9004.10 - Sunglasses 9004.90 - Other." It would be noticed that the entry by itself specifically includes sunglasses and the heading of the entry is very wide and sweeping and the use of the word 'the like, corrective, protective or other' and entry 9004.90 'other' in fact indicates that the use of words spectacles and goggles have been used as genus. Strong reliance was placed by learned counsel for the petitioner on the law laid down by the Hon'ble Supreme Court in the case of Pap....

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....It was well within the jurisdiction of the authorities below, while considering the issue involved, to record the finding based on the common parlance test as to what the product in issue is called in common parlance. In terms of the judgments of Hon'ble Supreme Court in the case of Indian Metals & Ferro Alloys Ltd. (supra) and Bharat Forge & Press Industries (P) Ltd. (supra) cited by learned counsel for the petitioner, the department has clearly established that the sunglasses cannot be brought under Entry 125 of Schedule IV and, therefore, the same would fall in residuary item. So far as the reliance placed on the judgment of CEGAT in the case of Ramchandra Choitram (supra) and the order passed by the authority of Advance Ruling under the Karnataka Value Added Tax is concerned, the same looses its significance in view of the findings recorded hereinbefore. The so called certificates issued by certain dealers and hospitals in support of petitioner's contentions are mere subjective opinions; have been obtained on the same day i.e. 30.04.2008 and are omnibus in their contents and, therefore, the same cannot advance the cause of the petitioner. From what has been ....

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....¤‚ सिर्फ "Spectacles, parts and components thereof, contact lens and lens cleaner " की बिक्री पर ही 4 प्रतिशत कर दर से अधिसूचित की गई है इसलिए Sun glasses को इसमें शामिल नहीं माना जा सकता, चूँकि Sun glasses को उक्त नोटिफिकेशन की प्रविष्टि संख्या 125 में शामिल नहीं किया गया है तथा राज्य सरकार के नोटिफिकेशन क्रमाà....

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....¤‚क 29-12-07 में, यह अभिनिर्धारित किया है कि Sun glasses, Spectacles नहीं हैं। इसलिए Sun glasses पर 12.5 प्रतिशत की दर से ही करदेयता बनती है, इस निर्णय के विरूद्ध कोई अपील नहीं होना पाया जाता है, ऐसी स्थिति में उक्त निर्णय बाध्यकारी होने के कारण, सक्षम अधिकारी द्वारा Sun glasses क....

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....¤·à¤¾ के अनुसार SPECTACLES are frame mounted lenses which correct refractive errors of vision, or reduce the amount of light reaching the eye. इसके साथ ही अपीलार्थी द्वारा प्रस्तुत The New International Webster's Comprehensive Dictionary of the English Language (Deluxe Encyclopedc Edition 2003) में "स्पेक्टेकल" व "सनग्लासेज" को अलग-अलग रूप से परिभाषित करते हुए कहा गया है कि Spectacle A pair of eyeglasses with hinged bows to secure them before the eyes; used to correct vision or to protect the eyes, as from glare. Sunglasses - Spectacles that protect the eyes form the glare of the sun by their coloured lenses. T ....

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....में समष्टि (व्यापक) सम्मिलित होना नहीं माना जा सकता। "Micro could not be said to include macro, but conversely it could be said to include micro into macro.” किसी उत्पाद की शब्दावली का अनावश्यक व्यापक (Macro) अर्थ लेना भी अवशिष्ट अनुसूची के अस्तित्व के विरूद्व होकर विधायिका के मत / विचार को पराजित करने की श्रेणी कà....

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....है। अतः यह न्यायिक दृष्टांत प्रश्नगत मामले से विभेदकारी होने के कारण इस प्रकरण में अपीलार्थी को सहायता प्रदान नहीं करता। इन प्रकरणों के उक्त विवेचित तथ्यों के विश्लेषण व समीक्षा से यह स्पष्ट है कि "धूप के चश्मे" (Sunglasses) को, "नजर के च....