Allahabad High Court
The Commissioner, Commercial Tax ... vs M/S Harsh Traders on 11 September, 2013
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 10
Case :- SALES/TRADE TAX REVISION No. - 635 of 2013
Applicant :- The Commissioner, Commercial Tax U.P.
Opposite Party :- M/S Harsh Traders
Counsel for Applicant :- S.C.
Hon'ble Arun Tandon,J.
The service upon the assessee is deemed sufficient in view of the office report dated 09.09.2013.
Nobody is present on behalf of the assessee even in the revised reading of the cause list.
Department has filed this revision against the order of the Tribunal dated 11th March, 2013 passed in second appeal no. 06 of 2012 connected with second appeal no. 129 of 2012.
The Tribunal under the order impugned has held that in the schedule to the U.P. Tax on Entry of Goods in the Local Areas Act, 2007 (hereinafter referred to as 'Act, 2007') 'coal' is mentioned at item no. 9 but the schedule does not include 'Charcoal'. The Tribunal has held that Charcoal does not answer the description of 'coal' and is therefore not within the schedule to the aforesaid Act, 2007 and accordingly no entry tax can be charged.
Counsel for the department points out that there has been complete non-consideration of the law laid down by the Apex Court in the case of Commissioner Sales Tax, Madhya Pradesh, Indore v. Jaswant Singh Charan Singh, reported in A.I.R. 1967 SC 1454, wherein, after noticing the dictionary meaning of the 'coal' and 'charcoal' and after applying common parlance test, the Supreme Court has gone on to hold that the coal would include charcoal also and accordingly went on to uphold the levy of tax on charcoal on the same rate as was provided for the coal.
The Tribunal has completely ignored the aforesaid law laid down by the Apex Court and has wrongly placed reliance upon the Division Bench judgment of the High Court in the case of Carbon Crafts Pvt. Ltd., Varanasi vs. State of U.P. and another, reported in 2006 U.P.T.C.-186, where the dispute was with regard to the Coke and Coal and with reference to those goods that the High Court has held that both of commodities were distinct commodities.
In the opinion of the Court the Division Bench judgment of the High Court in the case of Carbon Crafts Pvt. Ltd.(supra) is clearly distinguishable in the facts of the case. Suffice is to refer to paragraph 16, 17 and 18 of the judgment in the case of Carbon Crafts Pvt. Ltd.(supra) wherein the Division Bench has taken note of the judgment in the case of Commissioner of Sales Tax, Madhya Pradesh, Indore v. Jaswant Singh Charan Singh (supra) and has held that the same was distinguishable as the matter involved before the Supreme Court was in respect of the commodities, namely Coal and Charcoal.
In view of the aforesaid, the order of the Tribunal appears to the totally misconceived. It is hereby set aside.
In view of the judgment of the Apex Court it is held that the Charcoal and Coal are one and the same commodities and therefore the State has the competence to levy entry tax on Charcoal.
For the other purposes the matter is remanded to the Tribunal for decision afresh of the second appeal filed by the assessee.
The second appeal is restored to its original number.
Let the second appeal be decided afresh within three months from today.
Revision is allowed subject to the observation made.
Order Date :- 11.9.2013
Pkb/
