2015 (9) TMI 1456

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....d of Entry No.129 of the Act. 3. It is further alleged by the petitioner that opposite party preferred 1st Appeal before the Assistant Commissioner of Sales Tax (Appeal) (in short A.C.S.T). The First Appellate Authority confirmed the Assessment Order ex-parte on 25.11.2008. Against the order of the First Appellate Authority the opposite party filed Second Appeal before the Orissa Sales Tax Tribunal. The learned Tribunal did not interpret the entry in question and wrongly decided by setting aside the order of the Assessing Authority. It is the case of the petitioner that the Second Appellate Authority has no authority to issue direction to the Assessing Authority to assess de novo the entry of the material after expert opinion obtained. 4. The further case of the petitioner that Entry No.129 spells about packing material, i.e., to say gunny bags, H.D.P.E. bags, charade bags, containers and glass bottles. But entry No.136 contains polythene, polyethylene, High density polyethylene, woven fabric, (PP) HDPE woven sacks, PVC bags and other plastic goods except those specified elsewhere in the notification. It is the case of the petitioner that since L.L.D.P.E. the manufactured com....

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....f entry No.136 of the taxable list without any confusion leads to the conclusion that commodity in question, i.e., LLDPE falls within the scope of "plastic groups" as per judgment rendered in Soosree Plastic Industry Pvt. Ltd. Vrs. Union of India, O.J.C.2755 of 1988 disposed of by this court on 28.8.1992. He submitted to set aside the judgment of the learned Tribunal and to allow the revision by restoring order of the Assessing Authority. 7. None appeared for opposite party. However, it was submitted on behalf of the opposite party before the Learned Tribunal as appearing from the impugned order that neither the Assessing Authority nor the First Appellant Authority have got expertise in recognizing the commodity in question. Moreover, LLDPE bag is similar to H.D.P.E. bag under Entry No.129 of the taxable list for which it is taxable at the rate of 4% of gross sales and under no circumstances LLDPE bag is coming under the taxable list under entry No.136 of the Act. POINTS FOR DETERMINATION:- 8. The main point for consideration is whether the commodity of the opposite party, i.e., Linear Low Density Polyethylene (L.L.D.P.E.) bags are taxable @ 4% under Entry No.129 or taxabl....

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.....D.P.E.) woven fabrics, woven sacks, PVC products and other plastic goods except those specified elsewhere in the notification. It thus does not include L.L.D.P.E. and it has to be interpreted properly so as to bring the same under either of the category. At the same time the Assessing Authority and First Appellate Authority have not assigned any reason as to why L.L.D.P.E. bags and sheets will come under Entry No.136 being assessable to 8% of sales tax on the sales by repelling the contention of the opposite party. The learned Tribunal simply noted the arguments of both the sides and found the authorities below without applying expert opinion have disposed of the manufactured commodity of the opposite party by making same assessable under Entry No.136 of the Orissa Sales Tax Act. So, learned Tribunal remanded the matter to the Assessing Authority to make fresh assessment on the basis of the expert opinion obtained. Learned Tribunal should have applied judicial mind and given the decision instead of remanding the matter for de novo assessment. 13. It is the contention of learned Senior Standing Counsel for Revenue that the issue has already been decided by this Court in the deci....

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....bove dictionary "sacks" means a large bag of strong, coarsely woven material, as for grain, coals, etc. From the above description it appears bags can neither be fabrics nor be sacks. So, High density polyethylene (H.D.P.E.) bag is different from H.D.P.E. woven fabrics and H.D.P.E. woven sacks. Moreover the books of accounts under Assessing Order revealed that the dealer had collected Orissa Sales Tax by selling the L.L.D.P.E. bags being produced from raw materials L.D.P.E. and L.L.D.P.E granules. The fact remains apparently that High density polyethylene (H.D.P.E.) bag is in the Entry No.129 whereas H.D.P.E. woven fabrics and H.D.P.E. woven sacks are purportedly under Entry No.136. On analogy, it is considered that Polyethylene is family in both entry Nos.129 and 136 of Sales Tax List 'C' under Chapter-III of the Act. Under Polyethylene family density is being considered as genus with High or Linear Low as subdivision under such genus. But bag or fabric or sacks are considered as species being different from each other items. So, Linear Low Density Polyethylene (L.L.D.P.E.) bag is absolutely different from H.D.P.E. fabrics or sacks being under species 'bag', resultantly under Entr....