TaxTMI 
TaxTMI 
2019 (5) TMI 223
X X X X Extracts X X X X
X X X X Extracts X X X X
....osed of by this Court. Facts of Writ Petition No. 8608/2016 are narrated hereunder. 02. The petitioner before this Court, a Company registered under the Companies Act, 1956, has filed this present writ petition challenging the order dated 26/12/2015 passed by the Dy. Commissioner, Commercial Tax, Indore Division III, Indore, imposing tax on Warp Knit Fabrics @ 5% (Value added tax). The contention of the petitioner is that the petitioner is engaged in the business of manufacture of Warp Knit Fabrics which fall under Heading No. 60059000 of the Central Excise Tariff. The said product is listed in the Goods of Special Importance under the additional duty of excise (Goods of Special Importance) Act, 1957. The petitioner has further stated that the Excise Duty payable on Warp Knit Fabrics is leviable @ 12%, however, on account of a Notification dated 9/7/2004 it is exempted from payment of Excise Duty. The petitioner has further stated that a dispute arose in respect of classification of the product and a company registered under the Companies Act - M/s. Neo Corp International Ltd., went in appeal before the Excise Commissioner and the Excise Commissioner by order dated 22/3/2012 has h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....respondents in the return have categorically stated that the Commissioner, Commercial Tax has decided the issue of classification in exercise of powers conferred u/S. 70 of the MP VAT Act, 2002 in the case of M/s. SR Polyimpex and in the case of M/s. Neo Corp International. It has been held that Warp Knit Fabrics cannot be treated under Schedule I, Entry 48 (tax free goods) and it has to be treated under Entry 34 of Schedule II (duty @ 5%) hence, once the Commissioner has classified the goods to fall under Entry 34 of Schedule II of the MP VAT Act, 2002, an appeal before an authority subordinate to the Commissioner is going to be a futile exercise. 06. The sole question before this Court is whether the Warp Knit Fabrics is included under Schedule I, Entry 48 or Schedule II Part 2 Entry 34 of the MP VAT Act, 2002. The relevant statutory provisions relating to the entries in question reads as under : 48. Fabrics specified in the First Schedule to the additional Duties of Excise (Goods of Special Importance) Act, 1957 (No. 58 of 1957) as it stood prior to the date on which the Finance Act, 2011 (No. 8 of 2011) came into force... ... ...". 07. The goods which can be included in Sch....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... tobacco Kg. 10.00% 2401 10 70 - Tobacco for manufacture of cigar and cheroot Kg. 10.00% 2401 10 80 - Tobacco for manufacture of bookah tobacco Kg. 10.00% 2401 10 90 - Other Kg. 10.00% 2401 20 - Tobacco, partly or wholly stemmed or stripped : 2401 20 10 - Flue cured virginia tobacco Kg. 10.00% 2401 20 20 - Sun cured country (natu) tobacco Kg. 10.00% 2401 20 30 - Sun cured virginia tobacco Kg. 10.00% 2401 20 40 - Burley tobacco Kg. 10.00% 2401 20 50 - Tobacco for manufacture of biris Kg. 10.00% 2401 20 60 - Tobacco for manufacture of chewing tobacco Kg. 10.00% 2401 20 70 - Tobacco for manufacture of cigar and cheroot Kg. 10.00% 2401 20 80 - Tobacco for manufacture of hookas tobacco Kg. 10.00% 2401 20 90 - Other Kg. 10.00% 2401 30 00 - Tobacco refuse Kg. 10.00% 2402 CIGARS, CHERROTS, CIGARILLOS AND CIGARETTES OF TOBACCO OR OR TOBACCO SUBSTITUTES 660 55 1 2 3 4 5903 10 - With polyvinyl chloride: 5903 10 10 - Imitation leather fabr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (INCLUDING THOSE MADE ON GALLOON KNITTING MACHINES), OTHER THAN THOSE OF HEADINGS 6001 TO 6004 - Of cotton: 6005 21 00 - Unbleached or bleached Kg. 8.00% 6005 22 00 - Dyed Kg. 8.00% 6005 23 00 - Of yarns of different colours Kg. 8.00% 6005 24 00 - Printed Kg. 8.00% - Of synthetic fibres : 6005 31 00 - Unbleached or cleached Kg. 8.00% 6005 32 00 - Dyed Kg. 8.00% 661 56 1 2 3 4 6005 33 00 - Ofyarns of different colours Kg. 8.00% 6005 34 00 - Printed of artificial fibres : 6005 41 00 - Unbleached or bleached Kg. 8.00% 6005 42 00 - Dyed Kg. 8.00% 6005 43 00 - Of yarns of different colours Kg. 8.00% 6005 44 00 - Printed Kg. 8.00% 6006 OTHER KNITTED OR CROCHETED FABRICS Of cotton : 6006 21 00 - Unbleached or bleached Kg. 8.00% 6006 22 00 - Dyed Kg. 8.00% 6006 23 00 - Of yarns of different colours Kg. 8.00% 6006 24 00 - Printed Kg. 8.00% ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g that the goods are not included in Entry 48 of Schedule I of the MP VAT Act, 2002 is therefore, bad in law. By no stretch of imagination, the goods can be treated to be included under Entry 34 List 2 of the MP VAT Act, 2002 hence, the question of payment of duty @ 5% does not arise. 11. The apex Court in the case of Asstt. Commissioner, Commercial Tax and another Vs. Amara Raja Batteries reported in (2009) 15 STJ 601 (SC) was dealing with an issue of alternative remedy. 12. In the aforesaid case, the issue involved was decided by the higher authority ie., the Tribunal and it was held that the High Court was justified in entertaining the Writ Petition directly against the assessment order as an appeal would have been an idle formality. 13. In the present case, the classification issue has been decided u/S. 70 of the MP VAT Act, 2002 by the Commissioner and appeal to the Addl. Commissioner is certainly going to be an empty formality. 14. A similar view has been taken by this Court in the case of Ratlam Straw Board Mills Pvt. Ltd., Ratlam Vs. Commissioner of Sales Tax and others reported in [1996] 29 VKN 127. In the aforesaid case, there was a Circular issued by the Commissioner....