TaxTMI 
TaxTMI 
2015 (9) TMI 413
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....ct, proposing to raise the following substantial questions of law: "(1) Whether the order passed by the Tribunal is sustainable in law ? (2) Whether the Tribunal was justified in setting aside the penalty order with direction to the Assistant Excise and Taxation Commis sioner to refer the case to the Assessing Authority for considering the rate of tax applicable to the goods without ascertaining as to whether those goods are available with the assessee or not ? (3) Whether the Tribunal has wrongly applied the judgment in the case of 'Xcell Automation v. Government of Punjab [2007] 5 VST 308 (P&H); [2007] 29 PHT 253 (P&H)' to the facts of the present case ?" 2. A few facts relevant for the decision of the controversy involved....
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....Aggrieved by the order, the respondent filed appeal under section 62 of the Act before the Deputy Excise and Taxation Commissioner (DETC). Vide order dated August 26, 2009, annexure A2, the DETC remanded the case to the AETC for passing a fresh order. The AETC vide order dated April 21, 2010, annexure A3, again imposed penalty of the same amount. The respondent again filed appeal before the DETC who vide order dated August 19, 2011, annexure A4, remanded the case to the AETC for deciding the matter afresh keeping in view judgment of the Tribunal in Appeal No. 305 of 2010. The respondent instead filed appeal before the Tribunal and also challenged the remand orders passed by the DETC. Vide order dated January 10, 2013, annexure A6, the Tribu....
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....erters. It is for the Assessing Authority to determine as to whether or not the goods in question are UPS or inverters. The learned State counsel has argued on the lines of the impugned order. I have well considered these submissions. In paragraphs 18 and 23 of the judgment delivered in Goyal Motor Parts, Bhudhlada [2011] 38 VST 159 (P&H) their Lordships of honourable Punjab and Haryana High Courts have observed as under: ;18. The product being sold by the appellant, i.e., Microtec UPSEB 600, Microtec UPS-EB 850 and Microtec UPS-EB 1400 were sent for testing to the Indian Institute of Technology (IIT), Delhi. As per the certificate issued by the Department of Electrical Engineering, Indian Institute of Technology (IIT), Delhi, the aforem....
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.... rendered in Goyal Motor Parts, Bhudhlada [2011] 38 VST 159 (P&H), it has been observed that 'there was no rebooting under different conditions when the device was put to use on UPS made. This device could be used both as inverters as well as in computers. Thus, in our considered view would fall within sub-entry 27 of entry 60 of Schedule B attached to the VATAct and would not fall under the residuary entry and thus, would be taxable at four per cent. and not at 12.5 per cent.'. Adverting to the instant one, there is nothing on the record to show that the device under dispute was either put to use on UPS mode and on being done so, there was no rebooting under different conditions or that this device could be used both as inverters as well a....