TaxTMI 
TaxTMI 
2017 (4) TMI 1241
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....and certain specified series of products of Dr. Fixit Series used in building activity for water proofing, binding agent & bonding material and is supplying the product in the country. 3. The assessee furnished its return declaring the product being sold classifiable @ 4% of Schedule-IV of the Rajasthan Value Added Tax Act, 2003, however, the Assessing Officer was of the view that the products are not classifiable @ 4% rather they fall in residuary Schedule-V where the rate of 12.5% is applicable. Accordingly, show cause notice was given to the assessee. 4. Initially it appears that the assessee did not give bifurcation of the sale product-wise and after granting several opportunities, the assessee gave details as also literature of the various products. It appears from the assessment order that despite opportunities having been granted thereafter too, the assessee did not produce the relevant records / details and justify its claim that the product being sold fell in which category of Schedule-IV. The assessee at a later stage gave details with entry as under :- 5. The AO went into detail of the products being sold and after analysing the entries vis-a-vis the product classifie....
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....hedules-I to IV as claimed by the assessee, and accordingly upheld the levy of tax @ 12.5% and also upheld levy of interest. However, insofar as the penalty u/s 61 is concerned, was satisfied that it is not a case where the AO could prove that the assessee really evaded tax or there was any concealment on the part of the assessee, and accordingly deleted the penalty. 10. This court admitted the following questions of law :- "(i) Whether the products of Dr. Fixit Series viz. water proofing materials, binding material and bonding agents used in civil construction industry and related works are industrial inputs classifiable under entry 69 as "industrial inputs" of Schedule-IV or the residual entry no.1 of Schedule-V? (ii) Whether the learned Tax Board and lower authorities were legally justified in deciding the issue as to whether Dr. Fixit Series of Products are pure and simple chemicals having a composition of several constituents inter alia including those of chemical nature and ignoring the test reports on National Test House of Government of India which certified the product as chemicals?" 11. Learned counsel for the assessee vehemently contended that Dr. Fixit Series of pro....
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....xcise Tariff, the items of the petitioner are classified as under Category-3824, which prescribes as:- "Prepared Binders for Foundry Moulds or Cores; Chemical Products and Preparations of the Chemical Or Allied Industries (including those consisting of mixtures of Natural Products), Not elsewhere specified or Included 3824 10 00 - Prepared binders for foundry moulds Kg. 12.5% or cores 3824 30 00 - Non-agglomerated metal carbides mixed kg. 12.5% together or with metallic binders 3824 40 - Prepared additives for cements, mortars or concretes: 3824 40 10 --- Damp proof or water proof compounds kg. 12.5% 3824 40 90 --- Other" 13. Learned counsel also relied on Dhian Singh v. Municipal Board, Saharanpur (1969) 2 SCC 371, Amar Chandra Chakraborty v. The Collector of Excise, Govt. of Tripura, Agartala & Others (1972) 2 SCC 442, Collector of Customs, Madras v. Lotus Inks 1996 (87) E.L.T. 580 (S.C.), Poulose & Mathen v. Collector of Central Excise 1997 (90) E.L.T. 264 (S.C.), Assistant Commissioner (Intelligence) v. Nandanam Construction Co. (1999) 8 SCC 69, Commissioner of Central Excise, Calcutta v. Sharma Chemical Works (2003) 5 SCC 60, Quinn India Ltd. v. Commissioner of Central....
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....n the assessee to prove that it fell in any of the entries and since it failed, therefore, as a natural corollary it had to be taken in Schedule-V. Learned counsel also laid stress on the common parlance test and contends that these are products for the specified purpose like water proofing, binding material and they cannot be treated as "industrial inputs" and relied on Atul Glass Industries (Pvt.) Ltd. v. Collector of Central Excise (1986) 3 SCC 480, Mukesh Kumar Aggarwal & Co. v. State of Madhya Pradesh & Others [1988] 68 STC 324 (SC), Mauri Yeast India Pvt. Ltd. v. State of U.P. & Another (2008) 5 SCC 680, Raja Brick & Tile Industries v. The Addl. Commissioner of Commercial Taxes, Zone-II & Anr. [2006] 146 STC 124 (Kar), RayBan Sun Optics India Ltd. v. Dy. Commissioner (Appeals), Commercial Tax Department 2015 (1) RLW 669 (Raj.). 15. I have considered the arguments advanced by the learned counsel for the parties and have perused the material on record. 16. It would be appropriate to quote entry 69 of Schedule- IV and Sl. no.268 of Part 'B', Schecule-V, while the claim of the assessee is that it falls in item 69 of Part 'B' Sl. no.268 but the claim of the Reven....
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....d cementitious substrates. It also serves as a bond coat to repair sections." "Dr. Fixit Pidiseal It is a two-part elastomeric PS sealant based on liquid polysulfide polymer, which when mixed with accelerator (curing agent) cures by chemical reaction to from a tough, flexible rubber seal. This sealant has excellent adhesion to different surface like, masonary, concrete, timber, glass, aluminium etc., with excellent movement accommodation." Dr. Fixit Pidiseal "It is a semi viscous, non safe hardening type of sealant. The product meets BS 5920 as safe sealant for potable water." "Dr. Fixit Pidipoxy Is a self leveling epoxy ESL topping over cementitious substrates applied from 1.5 mm to 3 mm thickness, providing a hard-waring attractive floor, chemical resistant, seamless, and extremely easy to clean." 21. Having noticed some of the products and earlier also highlighted, in my view, these products have direct bearing on the water proofing and cement binding activities relating to building/civil works and cannot be treated to be "industrial inputs" under Part 'B' of Schedule-IV of the Act. Once the products do not fall in specific entry 69 as cla....