Allahabad High Court
M/S Hamdard (Wakf) Laboratories vs Commissioner Of Commercial Taxes on 3 August, 2022
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 38
Case :- SALES/TRADE TAX REVISION DEFECTIVE No. - 38 of 2022
Revisionist :- M/S Hamdard (Wakf) Laboratories
Opposite Party :- Commissioner Of Commercial Taxes
Counsel for Revisionist :- Atul Gupta
Counsel for Opposite Party :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Prakhar Shukla, learned counsel holding brief of Sri Atul Gupta, learned counsel for the assessee and learned Standing Counsel for the revenue.
2. Present revision has been filed against the order of the Commercial Tax Tribunal, Ghaziabad dated 26.02.2022 in Second Appeal No.385 of 2016 for the A.Y. 2007-08 (UP). By that order, the Tribunal has dismissed the appeal filed by the assessee and confirmed the classification of the commodity 'Sharbat Rooh Afza' as an unclassified commodity chargeable to tax @ 12.5%.
3. Arising from that decision, the present revision has been filed raising the following question of law :
"Whether the Hon'ble Commercial Tax Tribunal was legally justified in passing the impugned order classifying the impugned product under the residuary entry (Entry 1 of Schedule V of UPVAT Act) when there exists a specific entry (Entry 103 of Part A of Schedule II) ?"
4. Revision has been filed carrying a delay of 61 days. Considering the prevailing circumstances and the nature of explanation offered, the delay has been satisfactorily explained. Delay condoned.
5. On merits, it is noted, the controversy raised in the present revision had earlier reached this Court by means of a batch of revisions filed at the instance of the present assessee. Thus, Sales/Trade Tax Revision No.617 of 2012 along with the connected matters was decided vide judgment dated 02.07.2018. In those revisions, the following questions were pressed :
"A- Whether the Commercial Tax Tribunal was legally justified in passing the impugned order classifying the product "Rooh Afza" under the residuary entry (Entry 1 of Schedule V) and not under the Entry 103 of Part A of Schedule II of the U.P. VAT Act?
B. Whether the Tribunal was legally justified to give the finding based on common parlance test that the product "Rooh Afza" is known as 'sharbat'?
C. Whether the Tribunal was legally justified in classifying the impugned product under the residuary list without considering the 'essential character' test which is a cardinal principle in classification of goods under taxation law?"
6. The above questions were answered on the following terms.
"30. In view of the above discussion, I do not find any infirmity in the impugned orders of the Tribunal. The Tribunal has correctly held that the commodity "Sharbat "Rooh Afza" is an unclassified item falling under Schedule-V of the Act and liable to tax @ 12.5%. It is neither fruit juice nor fruit drink nor processed fruit. In common parlance it is known as Sharbat. Since the commodity "Sharbat Rooh Afza" does not fall under any Entry in Schedule I, II, III and IV, therefore, it shall fall under the residuary entry in Schedule-V of the Act. All the three questions are answered accordingly i.e. in favour of the Revenue and against the Assessee."
7. Against the above decision, the assessee has proposed Special Leave Petition (Civil) Diary No.38580 of 2018. Copy of the order dated 22.02.2019 passed in that proceeding reveals, it is engaging the attention of the Supreme Court, at the stage of delay condonation.
8. In absence of any contrary decision, I find the controversy squarely covered by the earlier pronouncement of the Court (noted above).
9. In view of the above, the questions of law raised is answered on the same terms as it was answered in Sales/Trade Tax Revision No.617 of 2012 vide order dated 02.07.2018.
10. Consequently, the revision lacks merit and is dismissed.
Order Date :- 3.8.2022
S.Chaurasia
