Rajasthan High Court - Jodhpur

M/S Rohit Enterprises vs Assistant Commercial Taxes ... on 9 January, 2023

Bench: Vinit Kumar Mathur

(1 of 7)

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Sales Tax Ref./rev. No. 17/2020

M/s Rohit Enterprises, 179, Ram Bhavan, Dalle Khan Ki Chakki, Pal Road, Jodhpur, Through Its Proprietor Shri Nand Kishor Jangid S/o Shri Patta Ram Jangid, Aged About 47 Years, R/o 179, Ram Bhavan, Dalle Khan Ki Chakki, Pal Road, Jodhpur (Rajasthan)

----Petitioner Versus Assistant Commercial Taxes Officer, Anti - Evasion, Jodhpur (Rajasthan)

----Respondent Connected With S.B. Sales Tax Ref./rev. No. 13/2020 M/s Rohit Enterprises, 179, Ram Bhavan, Dalle Khan Ki Chakki, Pal Road, Jodhpur Through Its Proprietor Shri Nand Kishor Jangid S/o Shri Patta Ram Jangid Aged About 47 Years, R/o 179, Ram Bhavan, Dalle Khan Ki Chakki, Pal Road, Jodhpur (Rajasthan)

----Petitioner Versus Assistant Commercial Taxes Officer, Anti - Evasion, Jodhpur (Rajasthan)

----Respondent S.B. Sales Tax Ref./rev. No. 14/2020 M/s Rohit Enterprises, 179, Ram Bhavan, Dalle Khan Ki Chakki, Pal Road, Jodhpur Through Its Proprietor Shri Nand Kishor Jangid S/o Shri Patta Ram Jangid, Aged About 47 Years, R/o 179, Ram Bhavan, Dalle Khan Ki Chakki, Pal Road, Jodhpur (Rajasthan)

----Petitioner Versus Assistant Commercial Taxes Officer, Anti - Evasion, Jodhpur (Rajasthan)

----Respondent S.B. Sales Tax Ref./rev. No. 15/2020 M/s Rohit Enterprises, 179, Ram Bhavan, Dallek Khan Ki Chakki, Pal Road, Jodhpur Through Its Proprietor Shri Nand Kishor Jangid S/o Shri Patta Ram Jangid, Aged About 47 Years, R/o 179, Ram

(2 of 7)

Bhavan, Dalle Khan Ki Chakki, Pal Road, Jodhpur (Rajasthan)

----Petitioner Versus Assistant Commercial Taxes Officer, Anti- Evasion, Jodhpur (Rajasthan)

----Respondent S.B. Sales Tax Ref./rev. No. 16/2020 M/s Rohit Enterprises, 179, Ram Bhavan, Dalle Khan Ki Chakki, Pal Road, Jodhpur Through Its Proprietor Shri Nand Kishor Jangid S/o Shri Patta Ram Jangid Aged About 47 Years, R/o 179, Ram Bhavan, Dalle Khan Ki Chakki, Pal Road, Jodhpur (Rajasthan)

----Petitioner Versus Assistant Commercial Taxes Officer, Anti - Evasion, Jodhpur (Rajasthan)

----Respondent S.B. Sales Tax Ref./rev. No. 18/2020 M/s Rohit Enterprises, 179, Ram Bhavan, Dalle Khan Ki Chakki, Pal Road, Jodhpur Through Its Proprietor Shri Nand Kishor Jangid S/o Shri Patta Ram Jangid Aged About 47 Years, R/o 179, Ram Bhavan, Dalle Khan Ki Chakki, Pal Road, Jodhpur (Rajasthan)

----Petitioner Versus Assistant Commercial Taxes Officer, Anti-Evasion, Jodhpur (Rajasthan)

----Respondent

For Petitioner(s) : Mr. Sanjay Jhanwar, Sr. Advocate assisted by Mr. Prateek Gattani For Respondent(s) : Mr. Hemant Dutt

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

09/01/2023

Heard learned counsel for the parties.

(3 of 7)

Since the question involved in the present Sales Tax

Ref./Revisions is similar, therefore, they are being heard and

disposed of by this common order.

For brevity, the facts of Sales Tax Ref./Revision

No.17/2020 (M/s Rohit Enterprises V/s Assistant

Commercial Taxes Officer, Anti - Evasion, Jodhpur) are

taken into consideration for deciding the controversy in hand.

The petitioners are involved in carrying the business of the

product called 'Sino Crack Expansive Mortar', which is the subject

matter of the commodity in the present case. The Assessing

Authority vide order dated 08.01.2018 has classified this product

in the residual category which attracts R-VAT duty of 14.5% and,

therefore, aggrieved of the order dated 08.01.2018, the

petitioners preferred the appeal before the First Appellate

Authority. The First Appellate Authority vide order dated

20.06.2018 has allowed the appeal of the petitioners and

remanded the matter back to the Assessing Authority for deciding

afresh after taking the expert opinion in the matter. Aggrieved

against the order dated 08.07.2018, the Department preferred a

Second Appeal before the learned Tax Board and the learned Tax

Board vide judgment dated 27.12.2019 allowed the appeal

preferred by the Department setting aside the order of the First

Appellate Authority and affirming the order passed by the

Assessing Authority/Officer on 08.01.2018. Hence, the present

Sales Tax Ref./Revision Petitions have been filed.

Learned Senior counsel for the petitioners submits that the

product in question i.e. 'Sino Crack Expansive Mortar' is nothing

but a form of lime and since the same is classified in Entry No.81

of Schedule IV of the Rajasthan Value Added Tax Act, 2003,

(4 of 7)

therefore, it is chargeable of tax @ 5%/5.5%. He further submits

that the expert opinion placed on record before this Court

categorically shows that the product in question is nothing but a

form of lime and, therefore, the Assessing Officer has incorrectly

placed the same in the residual category which attracts tax @

14.5%. Learned senior counsel also submits that when the First

Appellate Authority has rightly examined the matter and has

remanded the matter back to the Assessing Officer for

readjudicating the same after adducing the expert opinion on the

product in question. He further submits that neither the Assessing

Officer nor the Authorities including the First and Second Appellate

Authorities who have decided the appeals are expert on the

subject, therefore, learned Tax Board was not right in treating the

product in question i.e. 'Sino Crack Expansive Mortar' as a form of

lime and classifying the same in the residual category attracting

higher rate of duty. He also submits that the learned Tax Board

has incorrectly allowed the appeal preferred by the Department.

He, therefore, prays that the present Sales Tax Ref./Revisions may

be allowed and the matter may be remanded back to the

Assessing Officer for examination of the product in question

through an expert body and then deciding the duty which is

leviable to the product in question.

Mr. Hemant Dutt, learned counsel for the respondents

vehemently opposed the submissions made by the learned senior

counsel for the petitioner and submits that the learned Tax Board

as well as Assessing Officer have rightly considered the matter

and after a detailed discussion has come to the conclusion that the

product in question is not a simple form of lime and since its use

is different and it is a demolition agent and thus, it will have to be

(5 of 7)

classified in the residual category on the ground that the common

use of product in question is not for the construction or other

activity for which the lime is being used. He, therefore, prays that

the order of the learned Tax Board is not required to be interfered

with.

I have considered the submissions made at the Bar and gone

through the entire record of the case.

The product in question is 'Sino Crack Expansive Mortar'

which is used for the blasting purposes. Further, the chemical

composition of the product in question largely comprises of lime

but the same cannot be treated as lime for all intents and

purposes. Since the First Appellate Authority has rightly noticed

that whether this particular product can be classified as lime or

not, an expert opinion is required in the matter which will help the

authorities in better understanding the type of product. If a

report of the expert on the subject is taken in the matter, then the

Assessing Authority will be in a better position to classify the

nature of the product. The same will also help in placing that

product in the appropriate category for the purpose of levying tax.

The overall assessment of the product and the material placed

before this Court clearly show that although the product in

question is largely having lime as its raw material but whether it

can be classified as lime or not, an expert opinion is required in

the matter.

For brevity, the operative part of the order of First Appellate

Court has reproduced as under:-

"gLrxr izdj.k esa fookfnr oLrq ,d fof'k"V izdkj dk jklk;fud mRikn gS ftl ij fof'k"V fo'ks"kK gh vf/kd`r :i ls er O;Dr dj ldrs gSA vr% dj fu/kkZj.k vf/kdkjh dks bl dk;kZy; }kjk pkj ckj i= fy[k dj oLrq fLFkfr Li"V djus dk volj fn;k x;k Fkk ijUrq u rks dj fu/kkZj.k vf/kdkjh mifLFkr

(6 of 7)

gq, ,oa u gh dksbZ fVIi.kh izLrqr dhA fookfnr oLrq ds jklk;fud xq.kksa ds ckjs esa u rks dj fu/kkZj.k vf/kdkjh fo'ks"kKrk j[krs gS] u gh tkap vf/kdkjh] u gh foHkkxh; izfrfuf/[email protected]/kd`r izfrfuf/k ,oa u gh fuEu gLrk{kjdrkZA blds vfrfjDr ;gkW ;g Hkh mYys[kuh; gS fd fooknkLin oLrq ij dj nj fookn fuLrkj.k dk vkjosV ,DV dh /kkjk 36 esa {ks=kf/kdkj vk;qDr Lrj dk gS ,oa dj njsa jkT; ljdkj }kjk fu/kkZfjr dh tkrh gSA ,slh fLFkfr esa ekuuh; U;kf;d fu.kZ;ksa esa ls ekuuh; jktLFkku mPp U;k;ky; dk fu.kZ; izHkko'khyrk j[krk gS fd ,slh rduhdh izd`fr ds fof'k"V jklk;fud mRikn ij dj nkf;Ro fu/kkZj.k djus ls iwoZ fof'k"V vf/kd`r fo'ks"kK dh jk; yh tkos vkSj clinical examination djk;k tkosA vr% mijksDr leLr rF;] foosfpr fcUnq ,oa ekuuh; U;kf;d fu.kZ;ksa ,oa vk;qDr }kjk /kkjk 36 esa izfrikfnr fl)kUr ,oa ekuuh; dsjyk gkbZdksVZ }kjk N. Sooppy haji v. State of Kerala esa izfrikfnr fl)kUr fd lime esa Ca0 ds lkFk

esa nwljs vU; dsfedYl ds feJ.k ds ckotwn izkWMDV lime gh jgus rFkk Ca0 dks lkekU; Hkk"kk esa lime, quick lime ,ao burnt lime ds uke ls tkuus ckcr fu.kZ; esa funsZ'kksa ds vkyksd esa foLr`r ,oa lEekuiwoZd v/;;u djus ds i'pkr~ ;g fu.kZ; fd;k tkrk gS fd gLrxr izdj.k esa fcuk fdlh vf/kd`r fo'ks"kK dh jk; ,oa ysc VsfLVax fjiksVZ ds fcuk djkjksi.k fd;k tkuk U;k;ksfpr ugha gS vr% izdj.k dks bu funsZ'kksa ds lkFk izfrizsf"kr fd;k tkrk gS fd ,sls mRikn ij 'kh"kZ laLFkk }kjk fu.kZ; u gksus vFkok ;fn mPpkf/kdkjh }kjk fof'k"V funsZ'k u gks rks ,slh fLFkfr esa mDr nksuksa vkbVe dk clinical examination djk;k tkosa ,oa vf/kd`r fo'ks"kK dh fjiksVZ yh tkos ,oa izkIr ijh{k.k ,oa fjiksVZ ds fu"d"kZ ds vk/kkj ij rn~uq:i djkjksi.k fd;k tkosA"

I endorse the view taken by the First Appellate Authority

which has remanded the matter back to the Assessing authority

for getting an expert opinion on the product involved in the

present case.

In view of the discussions made above, the order passed by

the Second Appellate Authority i.e. Tax Board dated 27.12.2019 is

not sustainable, the same is quashed and set-aside and the order

dated 20.06.2018 passed by the First Appellate Authority is

upheld. The matter is remanded back to the Assessing Authority

(7 of 7)

for deciding it afresh after taking the expert opinion on the

product involved in the present case before placing the same in a