TaxTMI 
TaxTMI 
TaxTMI 
2018 (5) TMI 1105
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....umstances of the case, the Tribunal has rightly held that permission for lump sum tax under section 14A read with Rule 28(8) (via)( 2) of the Gujarat Value Added Tax Rules, 2006 ?" 3. The sole question in Tax Appeal No.79 of 2014 is the first question in Tax Appeal No.1158 of 2013, arise in similar background. Second question in Tax Appeal No.1158 of 2013 is an independent question. We may record brief facts at the outset. 4. In Tax Appeal No.79 of 2014, the respondent is trading in besides others, interlocking paving blocks and curb stones. The respondent was of the opinion that such interlocking paving blocks and curb stones are bricks falling in entry 10(1) of the scheduleII to the Gujarat Value Added Tax Act ('the VAT Act' for short). However, in order not to raise any future controversy, the assessee applied to the competent authority to determine this issue under section 80 of the VAT Act. The authority by an order dated March, 2009 held that the said product is not brick and should be taxed under the residuary entry at a higher rate. In his order, he relied on following factors: I. Paver blocks are used on the surface for decorative purpose and not for construct....
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....ns of Rule 28(8) of the VAT Rules. 9. We may first deal with the question of composition of tax since the issue is already covered by a recent judgment of this Court in Special Civil Application No.13170 of 2013 in case of BSCPL Infrastructure Limited v. State of Gujarat and ors. It was the case in which the petitioner was awarded a contract for construction of highway. The petitioner was granted permission of composition of tax in terms of section 14A of the VAT Act. The department noticed that in the execution of the works contract, the petitioner utilized besides other material, grit. Such grit was prepared by the petitioner using blacktrap which was extracted by the petitioner through mines taken on lease. According to the department, the petitioner having not paid the tax on grit used for construction of road, the petitioner had breached the condition of composition of tax. The relevant condition being the goods used in execution of the works contract should have borne tax. On such basis, the department had issued notice to the petitioner why the petitioner's permission for composition of tax not be cancelled. 10. In this context, while allowing the petition, the Court o....
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.... the petitioner had failed to disclose its modus of obtaining blacktrap or grit, while applying for composition. Neither the Act nor the Rules require any such declaration. The petitioner cannot be expected to make declaration which was not called for. In this context, the question arises what would have happened had the petitioner made such a declaration while applying for composition or the Department was aware of the petitioners modus, while dealing with such an application. Would the authority be justified in rejecting such an application ? In our opinion, the answer has to be in the negative since there is no provision under the Act or the Rules which debars a dealer from using selfmanufactured inputs in execution of the works contract. The issue can be looked at from yet another angle. Even if the petitioner wanted to pay tax on such goods, there is no provision under the Act under which the petitioner could do so. Since the petitioner had not purchased the goods from market but had selfmanufactured it from the mines taken on lease, there was no occasion to pay the tax. The Department obviously cannot argue that in such a situation, the petitioner cannot avail of composition ....
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....ogy and passage of time, new uses and meanings of the products may come about which must be given effect while interpreting different entries from time to time. Merely because the paver blocks have shapes different than conventional shapes of the bricks, does not mean that two products are entirely different. 14. Both sides have relied on certain materials as well as decisions of the Courts to which reference would be made at the appropriate stage. 15. Entry 10(1) of the scheduleII to the VAT Act reads as under: 10 (i) Bricks of all kinds including fly ash bricks refractory bricks, eco bricks and hollow block bricks (ii) Roofing tiles known as Manglori Nalia Four paise in the rupee 16. This entry thus, includes bricks of all kinds including fly ash bricks, refractory bricks, eco bricks and hollow block bricks. In plain terms, the intention of the legislature is thus to include all kinds of bricks within the fold of this entry. The entry is consciously and advisably worded widely. 17. The bricks as understood in common usage and parlance need not require any description. Use of the paver blocks also in the recent times has become quite common. From the literature provided by....
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....ase [1964] 7 SCR 205. Counsel for the appellant also relied upon the decisions of this Court in the cases of Dy. Commissioner, Sales Tax. v. PIO Food Packed, [1980] 3 SCR 1271 and Indian Carbon Ltd. v. Superintendent of Taxes, Gauhati, [1972] 1 SCR 3 16 in support of his submissions. According to Collins English Dictionary 'brick' means 'a rectangular block of clay mixed with sand and fired in a kiln or baked by the sun, used in building construction'. New Webster's Dictionary carries the meaning of the word as: 'a block of clay usually rectangular, hardened by the sun or by burning in a kiln and used for building, paving etc.' According to the oxford English Dictionary 'brick' means 'a substance formed of clay, kneaded, moulded, and hardened by baking with fire, or in warm countries and ancient times by drying in the sun'. Encyclopaedia Britannica indicates that 'after the bricks are formed, they must be dried to remove as much free water as possible. Drying, apart from sundrying, is done in drier kiln with controlled, draft and humidity'." 20. From such materials, it could be seen that the paver blocks are also sometimes refer....
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....on by the specific heading cannot cover the goods in question. The language of Entry 97 (b) clearly shows, by use of the phrase "other than those specified elsewhere" that it is not only a residuary entry but also that electronic systems, instruments etc. may be classified under other entries. Entry 90 on the other hand does not contain any words of limitation. The items mentioned therein would cover every species thereof irrespective of the mode of their operation. Cash registering machines are specifically mentioned. In the absence of any limitation or qualification as to the different kinds of cash registering machines, there is no reason to read in any such qualification and limit the entry to particular kinds of cash registering machines. It is significant that by contrast, data processing machines have expressly excluded computers. Were it not so excluded, computers would have also fallen within Entry 90. In fact computers are separately dealt with Entry 97(a). But the exclusion of computers from data processing machines would indicate that the items mentioned in Entry 90 are generic covering all species of such items. Given the language of the two entries we fail to understa....