2023 (11) TMI 212

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.... the VAT Act. (10.3) Quashing of the order dated 20.10.2011 Annexure P/6. (10.4) Any other relief, this Hon'ble Court deems fit and proper may also be ordered in the interest of justice." 2. Facts of the case in brief are that petitioner is a registered dealer primarily carrying on the business of manufacturing and sale of HV wires from wire rod and is also engaged in manufacture and selling of wire nails. Petitioner moved an application under Section 70 of the VAT Act for clarification of the rate of tax on wire nails. Further case of the petitioner is that the wire nails have not been kept in any entry but put in residuary entry though it should be kept in entry 79 Part-II of Schedule II which includes nuts, bolts, sc....

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....ied on judgment of the Hon'ble Supreme Court in case of M/s Bharat Forge and Press Industries (P) Ltd. Vs. Collector of Central Excise, Baroda, Gujarat; (1990) 1 SCC 532 and judgment passed by this Court in case of Kesharwani Enterprises Vs. State of Chhattisgarh; 2018 SCC OnLine Chh 988. 3. State in its reply has taken a stand that the "Wire Nails" is nothing else but a hardware item and all other like hardware items are charged under the residuary entry at the rate of tax contemplated therein and therefore even the product "Wire Nails" is to be charged accordingly under the residuary entry. It is further stated that Entry 79 speaks about "Nuts, Bolts, Screws and Fasteners and wire nails cannot be meant to understand to fall within the ....

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....ct between two entries one leading to an opinion that it comes within the purview of the tariff entry and another the residuary entry, the former should be preferred." 6. In case of Bharat Forge and Press Industries (P) Ltd. (supra) the Supreme Court held 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. 7. Hon'ble Supreme Court in yet another decision in the case of Puma Ayurvedic Herbal (P) Ltd. Vs. Commissioner, Ce....

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....will be such as can be absorbed by the human body. The medicament would necessarily be covered by fillers/vehicles in order to make the product usable. It could not be denied that all the ingredients used in Banphool Oil are those which are set out in the Ayurveda text Books. Of course the formula may not be as per the text books but a medicament can also be under a patented or proprietary formula. The main criteria for determining classification is normally the use it is put to by the customers who use it. The burden of proving that Banphool Oil is understood by the customers as an hair oil was on the Revenue. This burden is not discharged as no such proof is adduced. On the contrary we find that the oil can be used for treatment of headac....