TaxTMI 
TaxTMI 
2018 (6) TMI 1661
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....y on the ground that the correct rate of tax applicable with respect to bitumen emulsion purchased by the petitioner outside the State is covered by residual entry of schedule annexed with the Act and rate of tax would be 12.5% and would not be 4% as per Entry-23 of Schedule-II of Part II of the Chhattisgarh Value Added Tax Act, 2005 and accordingly, additional tax liability was imposed upon the petitioner which was challenged in revision under Section 49(1) of the Chhattisgarh Value Added Tax Act, 2005 (for short, 'the VAT Act'). The revisional authority partly allowed the revision reducing the additional tax liability. Feeling aggrieved and questioning that order, this batch of writ petitions have been filed. 2. Since common question of law and fact is involved in this batch of writ petitions, they are heard analogously and are being disposed of by this common order. 3. Mr. Siddharth Dubey, learned counsel appearing for the petitioner, would submit that bitumen emulsion is covered by Entry-23 under Part II of Schedule-II of the VAT Act and the correct rate applicable would be 4% as per Entry-23 of schedule annexed with the VAT Act. He would further submit that while....
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....s made herein-above and went through the record with utmost circumspection. 6. It is the case of the petitioner that he is paying purchase tax on purchase of bitumen emulsion from unregistered dealers outside the State and using the same / bitumen in execution of works contract. Section 9 of the VAT Act pertaining to purchase tax is reproduced below: - "9. Levy of Purchase Tax - (1) Every dealer who in the course of his business purchases any goods specified in schedule II from any person other than a registered dealer or from a registered dealer in the circumstances in which no tax under Section 8 is payable by that registered dealer on the sale price of such goods except where the goods are tax-paid goods within the meaning of clause (x) of Section 2, shall be liable to pay tax on the purchase price of such goods if,- (a) after their purchase, the goods are not sold within the State of Chhattisgarh or in the course of inter-State trade or commerce or in the course of export out of the territory of India but are sold or disposed of otherwise, or consumed or used in the manufacture of goods declared tax-free under Section 15 and Section 15(b) which are disposed....
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....ok "Principles of Statutory Interpretation" (14th Edition) at page 874 has held that the taxing entries have to be construed with clarity and precision so as to maintain this exclusivity. 10. In the matter of M/s Bharat Forge and Press Industries (P) Ltd. v. Collector of Central Excise, Baroda, Gujarat (1990) 1 SCC 532, the Supreme Court has held in no uncertain terms that only such goods which cannot be brought under the various specific entries in the tariff schedule should be attempted to be brought under the residuary entry. In other words, unless the Department can establish that the goods in question can by no conceivable process of reasoning be brought under any of the tariff items, resort can be had to the residuary item. 11. Likewise, in the matter of Commissioner of Central Excise, Calcutta v. Sharma Chemical Works (2003) 5 SCC 60, the Supreme Court has held authoritatively that it is the primary and paramount responsibility of the State to first convincingly prove and establish that the item under no circumstances can be brought under any of the tariff items under the schedule of the Act. It has been further held that classification of goods and the onus of proof l....
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....ade to find out as to whether the same answers the description of the contents of the basic entry and only in the event it is not possible to do so, recourse to the residuary entry should be taken by way of last resort." 14. Recently, in A.R. Thermosets Private Limited's case (supra), Their Lordships of the Supreme Court have held that residuary entry is made to cover only those category of goods which clearly fall outside the ambit of the main entry. It has been further held as under: - "20. ... In State of Maharashtra v. Bradma of India Ltd. (2005) 2 SCC 669, the Court had observed that the general principle is that specific entry would override a general entry. Referring to the decision in CCE v. Wood Craft Products Ltd. (1995) 3 SCC 454, it has been ruled that resort can be made to a residuary heading only when by liberal construction the specific entry cannot cover the goods in question. ..." 21. A similar opinion has been expressed in Hindustan Poles Corpn. v. CCE (2006) 4 SCC 85 stating that residuary entry is made to cover only those category of goods which clearly fall outside the ambit of the main entry. The opinion proceeds further to state....
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.... PART IV S.No. Description of Goods Rate of tax u/s 8 (percent) (1) (2) (3) 1. All other goods not included in Schedule I and in Part I, II and III of this Schedule 12.5 (12.5% enhanced to 14% by Notification No.(44-A) dt. 26-12-2009 with effect from 1-1-2010.) 19. At this stage, it would be appropriate to notice whether use of bitumen and bitumen emulsion is one and same or both are different commodities. It is no more res integra and stand decided by the Supreme Court. 20. The Supreme Court in A.R. Thermosets Private Limited's case (supra) considered the question as to whether bitumen and bitumen emulsion are one and the same commodity for the purposes of interpretation of Entry 22 of Part A of Schedule II to the U.P. Value Added Tax Act, 2008 as was originally enacted and whether "bitumen emulsion" is covered within Entry 22 of Part A of Schedule II to the U.P. Value Added Tax Act, 2008 which only refers to "bitumen". Their Lordships after detailed analysis of various dictionaries as well as Encyclopedia of Science and Technology defining "bitumen" held that the entry in question uses the word "bitumen" without any furth....
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..... In the instant case, even the end-use test is satisfied. There is nothing in the entry to suggest and show that the entry is required to be given a restrictive and a narrow meaning." 21. Following the principle of law laid down by the Supreme Court in A.R. Thermosets Private Limited's case (supra), in the instant case, it is held that bitumen as used in Entry 23 under Part II of Schedule-II appended to the VAT Act, bitumen emulsion is nothing but bitumen. But here the submission is, in the said Entry, bitumen is conditioned by word coal-tar (in front of the word bitumen), therefore, the word inside the brackets i.e. coal-tar would control the meaning of the word "bitumen". 22. As per the dictionary meaning, bracket is usually called as parenthesis. The question would be whether the words inside the parenthesis / brackets would control the scope of the words outside it. To put it differently, whether the words within the parenthesis are merely illustrative or it is exhaustive. 23. The Merriam-Webster's Collegiate Dictionary, Eleventh Edition, defines the word 'parenthesis' as under : "parenthesis- act of inserting, to insert, to place 1a : an ampl....
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....se words or figures so as to separate them from the context. 46. Oxford Advanced Learner's Dictionary, Seventh Edition, defines 'bracket' to mean- 'either of a pair of marks, ( ) placed around extra information in a piece of writing or part of a problem in mathematics.' (emphasis supplied) 47. The New Oxford Dictionary of English, 1998 Edition, gives the meaning and use of parenthesis as: 'Parenthesis-noun (pl. parentheses) a word, clause, or sentence inserted as an explanation or afterthought into a passage which is grammatically complete without it, in writing usually marked off by brackets, dashes, or commas. -(usu. Parentheses) a pair of round brackets ( ) used to include such a word, clause, or sentence.' (emphasis supplied) 48. Oxford Advanced Learner's Dictionary, Seventh edition, defines the meaning of parenthesis as: 'a word, sentence, etc. that is added to a speech or piece of writing, especially in order to give extra information. In writing, it is separated from rest of the text using brackets, commas or dashes.' 49. The Complete Plain Words by Sir Ernest Gowe....
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....no less than what is stipulated in section 50 of the 1996 Act. But there may be a different reason to contend that section 39 of the 1940 Act or its equivalent section 37 of the 1996 Act are fundamentally different from section 50 of the 1996 Act and hence, the decisions rendered under section 39 of the 1940 Act may not have any application to the facts arising under section 50 of the 1996 Act. But for that we need to take a look at the basic scheme of the 1996 Act and its relevant provisions." 27. At this point, another decision of the Supreme Court in the case of Dozco India Private Limited v. Doosan Infracore Company Ltd. (2011) 6 SCC 179 may also be taken note of in which the question was of interpreting the arbitration agreement between the parties. The Supreme Court set out the clause being interpreted in paragraph 4 of the aforesaid decision which reads as under: - "4. The petition is countered on behalf of the respondent who opposes the same on account of maintainability. According to the respondent, only the rules of arbitration of the International Chamber of Commerce would apply in accordance with the agreement between the parties. It is contended by the resp....
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....Bhatia International v. Bulk Trading S.A. (2002) 4 SCC 105 must apply holding (SCC page 123, para 32) : '32. ... In cases of international commercial arbitrations held out of India provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case the laws or rules chosen by the parties would prevail. Any provision, in Part I, which is contrary to or excluded by that law or rules will not apply'." 29. From the above-stated clear pronouncement of the Supreme Court in aforesaid two judgments, it is quite vivid that the utility of a bracket is only as an illustration, explanation or extra information. It is thus clarificatory. It is not always exhaustive of the terms outside the bracket. It cannot curtail or limit the scope of the terms outside the bracket. The Supreme Court in the aforesaid judgments has clearly held that ordinarily, words appearing in brackets are illustrative and not exhaustive. Therefore, everything would depend upon the context and purpose with which in an individual statute the words in the bracket are inserted by the appropriate Legislature. 30. The above-stated two jud....