Allahabad High Court
The Commissioner,Commercial ... vs S/S Star ... on 31 July, 2014
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 4
Case :- SALES/TRADE TAX REVISION No. - 423 of 2014
Applicant :- The Commissioner,Commercial Tax,U.P.Lucknow
Opposite Party :- S/S Star Tax,98/07,Bekanganj,Kanpur
Counsel for Applicant :- S.C.
Counsel for Opposite Party :- Shubham Agarwal
Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri B.K.Pandey, learned Standing Counsel for the applicant and Sri Bharat Ji Agarwal, learned Senior counsel, assisted by Sri Shubham Agarwal, learned counsel for the respondent.
2. This revision arises from the order of the Tribunal dated 27th June, 2014 passed in a proceeding arising from an order of seizure under Section 48(7) of the U.P. VAT Act, 2008. Seizure was made on the ground that the commodity in question is a taxable commodity falling under Entry-196 of Part-C of Schedule-II to the Act. The stand of the dealer is that it is an exempt commodity falling under Entry-21 of Schedule-I. The Seizing Authority prima facie found the goods to be taxable, and therefore, demanded security of Rs.4,72,309/- on the estimated value of goods Rs.11,80,772/- the security was demanded @ 40%. The respondent moved an application under the proviso to Section 48(7) which was rejected by the Joint Commissioner.
3. Aggrieved with that order, the respondent preferred an Appeal No.210/2014 (Year-2014-15) before the member Commercial Tax Tribunal, Kanpur Bench-I, Kanpur which has been allowed by the impugned order dated 27th June, 2014. The Tribunal came to the conclusion that the commodity in question is covered by Entry-21 of Schedule -I.
4. Thus the only question which requires consideration is as to whether prima facie the commodity in question is covered under Entry-21 of Schedule-I of the Act?
5. Entry-21 of Schedule-I is reproduced below : -
Silk Fabrics ; Handloom cloth of all kinds ; handloom shawls & lois whether plain, printed, dyed or embroidered; Dhoties and Saries; textiles of following varieties manufactured on powerloom excluding the items described in Schedule-II : -
(a) cotton fabrics of all varieties ;
(b) rayon or artificial silk fabrics, including staple fibre fabrics of all varieties ;
(c) woolen fabrics of all varieties ;
fabrics made of a mixture of any two or more of the above fibres, viz., cotton, rayon, artificial silk, staple fibre or wool, or of a mixture of any one or more of the said fibres with pure silk fibre ;
(e) canvas cloth.
6. Sri B.K. Pandey submit that the Tribunal has relied upon a Division Bench judgment of this Court dated 4th August, 2010 in Writ Tax No. 410/2007 ( Northern India Fisihing Material Company Vs. State Of U.P. & Others), wrongly assuming that the judgment of this Court in the case of M/s Gaurav Traders, Gorakhpur Vs. Commissioner of Trade Tax, 2007 UPTC 914 has been overruled. He further submits that the decision in the case of M/s Gaurav Traders (supra) dealing with the similar commodity was followed in Sales/Trade Tax Revision No.1756 of 2006 (Commissioner of Trade Tax, U.P., Lucknow Vs. S/S Mahabir Textiles), decided on 28th May, 2014. He, therefore, submits that the view taken by this Court with respect to the commodity in question clearly establish that the commodity in question is not an exempt commodity.
7. Learned Standing counsel has also referred to the meaning of the words "rayon" and 'cellulose' as given in "Oxford Dictionary & Thesaurus" which gives the meaning of these two words as under : -
"rayon/renon/noun textile fibre or fabric made from cellulose.
cellulose/......./ noun 1 carbohydrate forming plant-cell walls. 2 paint or lacquer consisting of cellulose acetate or nitrate in solution."
8. Thus only those textiles as described in sub Items a, b, c, d and e of Entry-21 shall qualified for exemption which are manufactured on power goods.
9. Sri Bharat Ji Agarwal, learned Senior counsel submits that the Tribunal has recorded a prima faice finding of fact looking into the nature of proceeding before it that the goods in question is a textile fabric exempt under Entry-21 of Schedule-I which contains the list of exempt items.
10. Learned counsel for the parties wants to make further submission. As prayed, put up on Saturday, i.e., on 2nd August, 2014 for further hearing on which date learned Standing Counsel shall also produced the original record relating to seizure .
Order Date :- 31.7.2014
Mukesh
