Commissioner Trade Tax, U.P. ... vs M/S Gudex Class Industries Pvt. ...
2013 Latest Caselaw 6339 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A    F   R
 
Court no.10
 
Case :- SALES/TRADE TAX REVISION No. - 1560 of 2007
 
Applicant :- Commissioner Trade Tax, U.P. Lucknow
 
Opposite Party :- M/S Gudex Class Industries Pvt. Ltd., Meerut
 
Counsel for Applicant :- C.S.C.
 
With
 
Case :- SALES/TRADE TAX REVISION No. - 1510 of 2007
 
Applicant :- Commissioner Trade Tax, U.P. Lucknow
 
Opposite Party :- M/S Gudex Glass Industries Pvt. Ltd., Meerut
 
Counsel for Applicant :- C.S.C.
 
With
 
Case :- SALES/TRADE TAX REVISION No. - 1511 of 2007
 
Applicant :- Commissioner Trade Tax, U.P. Lucknow
 
Opposite Party :- M/S Gudex Glass Industries Pvt. Ltd., Meerut
 
Counsel for Applicant :- C.S.C.
 
With
 
Case :- SALES/TRADE TAX REVISION No. - 1518 of 2007
 
Applicant :- Commissioner Trade Tax, U.P. Lucknow
 
Opposite Party :- M/S Gudex Glass Industries Pvt. Ltd., Meerut
 
Counsel for Applicant :- C.S.C.
 
With
 
Case :- SALES/TRADE TAX REVISION No. - 1519 of 2007
 
Applicant :- Commissioner Trade Tax, U.P. Lucknow
 
Opposite Party :- M/S Gudex Glass Industries Pvt. Ltd., Meerut
 
Counsel for Applicant :- C.S.C.
 
and
 
Case :- SALES/TRADE TAX REVISION No. - 1520 of 2007
 
Applicant :- Commissioner Trade Tax, U.P. Lucknow
 
Opposite Party :- M/S Gudex Glass Industries Pvt. Ltd., Meerut
 
Counsel for Applicant :- C.S.C.
 
                     
 
Hon'ble Arun Tandon,J.

The short controversy up for consideration in these revisions is as to whether the toughened glass manufactured by the assessee would be covered within the meaning of glass and glassware including optical glass in all its forms but excluding ornamented or cut glass bangles. In terms of notification no.4519 dated 29.08.1987 issued under Section 4-B of the Trade Tax Act and, therefore, a classified item taxable @ 15 % or toughened glass manufactured by the assessee is to be treated as an unclassified item and, therefore, taxable @ 10 %.

On behalf of the department, it is stated that the controversy with regards to toughened glass manufactured by the assessee being covered by the 'glass in all its forms' as provided for under the notification dated 29.08.1987 stands concluded in favour of the Department under the judgment of the Apex Court in the case of Trutuf Safety Glass Industries vs. Commissioner of Sales Tax, U.P. reported in 2007 (215) E.L.T. 14 (S.C.). He refers to paragraph 13 of the said judgment.

According to the counsel for department, the Tribunal has committed an error in dismissing the revision filed by the Department while holding that in view of the judgment of the Apex Court in the case of Atul Glass Industries Pvt Ltd vs. Collector of Central Excise reported in 1985 S.T.C. 322 wherein it was held that the glass screens manufactured for fitting in motor vehicles cannot be prescribed as glass or glassware and, therefore, the Tribunal has held that the toughened glass manufactured by the petitioner was not covered by the notification dated 29.08.1987 referred to above and was an unclassified item. According to the counsel for the department, the Tribunal has lost sight that the language of the tariff notification up for consideration in the case of Atul Glass Industries Pvt Ltd (supra) was entirely different and that the judgment will have no application in view of the language of notification dated 29.08.1987 wherein 'glass and glassware in all its form' has been included. The words "in all forms" have been explained by the Apex Court to mean same commodity in different forms. It widens the scope of the entry. He further points out that the orders passed in the case of the petitioner under Section 22 of the Act holding that the toughened glass shall not fall within the category of glass and glassware as well as the orders passed in that respect during earlier assessment year proceedings will not have the effect of res judicata, in as much as, every assessment year is a new case and the principle of res judicata has no application in tax matter. He further submits that the legal proposition has since been stayed by the Apex Court in the case of Trutuf Safety Glass Industries (supra) is binding upon all the authorities including tax authorities in view of Article 141 of the Constitution of India. It is, therefore, submitted that the order of the Tribunal be set aside and the order of the Assessing Authority be maintained.

Counsel for the assessee submitted that the recognition certificate was earlier granted in his favour treating toughened glass as a classified item taxable @ 15 % under notification dated 29.08.1987 had been rectified in proceedings under Section 22 of the Act vide order dated 24.11.1993. The appeal filed against the rectification order was dismissed on 28.01.1994. The issue, therefore, stands concluded that the toughened glass manufactured by the assessee was an unclassified item and taxable accordingly. According to him consistency has to be maintained on year to year basis in respect of a good as has been held by the Apex Court in the case of Radha Soami Satsang vs. CIT repoted in (1992) 193 ITR 321 (SC) at Page 329.

Counsel for the assessee has also made reference to the judgment of the High Court in the case of Hindustan Safety Glass Works vs. Commissioner of Sales Tax reported in NTN 1998 (Vol.13)-587 which in turn followed the law laid down in the case of Atul Glass Industries Pvt Ltd (supra).

I have heard counsel for the parties and perused the records of the present revisions.

From a reading of the order of the Tribunal it is apparently clear that it has placed heavy reliance upon the judgment of the Apex Court in the case of Atul Glass Industries Pvt Ltd (supra) for coming to the conclusion that the toughened glass manufactured by the petitioner also known as glass screen to be used in motor vehicles etc cannot be treated to be 'glass or glassware' and that a new commodity substantially different from its original good came into existence after manufacture of toughened glass. The said judgment had been followed by the High Court in the case of Hindustan Safety Glass Works (supra).

The law so laid down in the case of Atul Glass Industries Pvt Ltd (supra), is not in dispute, but the language of the notification under consideration in the facts of this case is much wider. The relevant clause as already been quoted above shows that it includes glass and glassware in all forms. The word "in all forms" has been interpreted by the Apex Court in the case of Trutuf Safety Glass Industries (supra) and it has been held in paragraph 13 as follows :

'13. The expression used is "in all forms". The Entry contains an expansive description i.e. "glass" and "glasswares" in all forms". There is no dispute that the articles manufactured by the assessee are articles made of glass. The word 'form' connotes a visible aspect such as shape or mode in which a thing exists or manifests itself, species, kind or variety. The use of the word 'in all forms' is different from the expression 'all kinds'. The conceptual difference between the words "all kinds' and 'in all forms' is that the former multiplies items of the same kind while the latter multiplies the same commodity in different forms. The use of the word 'in all forms' widens the scope of the Entry.'

In paragraph 15 of the same judgment the Apex Court has taken note of the judgment in the case of Atul Glass Industries Pvt Ltd (supra) and it has been held as follows :

"15. It is to be noted that the entry which was under consideration in Atul Glass's case (supra) was "glass and glass wares" and not the entry to which this case relates. In the amendment made by Notification dated 1.9.1987 certain specified articles which otherwise fall within the definition of glass and glass wares were excluded i.e. ornamented or cut glass bangles. But no such exclusion was made in respect of articles manufactured by the assessee."

In view of the aforesaid and in view of the notification applicable in the facts of the case it cannot be disputed that toughened glass falls within the definition of 'glass in all forms'. The issue in that regard stands settled in favour of the Department under the judgment of the Apex Court in the case of Trutuf Safety Glass Industries (supra). The law having been settled by the Apex Court in favour of the department, the decision of the Tribuanl to the contrary cannot be permitted to stand.

Now turning to the second issue canvassed on behalf of the petitioner namely that in the proceedings under Section 22 of the Act relating to the certificate the department itself had maintained that toughened glass did not answer the description of glass and, therefore, it is not open to the department to now turn around and contend otherwise. The contentions has only been raised to be rejected. Orders passed under Section 22 of the Act do not operate as res judicata in the matters of assessment, more so in the circumstance when the legal proposition with regards to the interpretation of the word "in all forms" has been done by the Apex Court in the case of Trutuf Safety Glass Industries (supra) and the law laid down in the case of Atul Glass Industries Pvt Ltd (supra) has been explained.

The law declared by the Apex Court is binding upon all Court authorities and Tribunal throughout the country in view of Article 141 of the Constitution of India. The plea has no substance. The Department is right in insisting that the toughened glass manufactured by the petitioner has to be treated as a classified item being covered by 'glass in all forms'.

In view of the aforesaid, this Court finds that the order passed by the Tribunal is legally not sustainable and is hereby quahsed. The order of the Assessing Authority is maintained.

All these revisions are accordingly allowed.

Order Date : 7.10.2013

M. Himwan