COMMISSIONER OF COMMERCIAL TAX, U.P. Vs. M/S. A.R. THERMOSETS (PVT.) LTD.
SUPREME COURT OF INDIA
Commissioner Of Commercial Tax, U.P.
M/S. A.R. Thermosets (Pvt.) Ltd.
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DIPAK MISRA,J. -
(1.) In this appeal, by special leave, the Revenue has called
in question the legal sustainability of the judgment and
order passed by the High Court of Judicature at Allahabad
in Commercial Tax Revision no. 1156 of 2009 preferred by
the assessee -respondent under Section 11 of the U.P. Trade
Tax Act, 1948 (for brevity, 'the 1948 Act') read with Sections
81 and 58 of the VAT Act, 2008 (for short, 'the VAT Act') whereby the learned Single Judge has allowed the revision
negativing the stand put forth in opposition by the State to
the stance highlighted by the assessee.
(2.) The facts on which the controversy rests is in a narrow compass. The respondent manufactures "bitumen
emulsion". It filed an application before the Commissioner,
Commercial Taxes, Lucknow, U.P. under Section 59 of the
VAT Act seeking a clarification about the rate of tax
applicable to the sales of bitumen emulsion. The
Commissioner of Commercial Taxes, vide order dated
23.1.1999 opined that bitumen emulsion is an unclassified commodity and, therefore, is excisable to tax at the rate of
12.5% as it would fall under the residuary Entry.
(3.) Being aggrieved by the order dated 23.1.1999, the respondent preferred Appeal No. 6 of 2009 under the VAT
Act before the Tribunal Commercial Taxes, U.P., Lucknow
(for short 'the tribunal') which was heard by the Full Bench.
It was contended before the tribunal by the
assessee -appellant therein that bitumen as a commodity is
taxed at 4% under Serial no. 22 Part A of Schedule II to the
VAT Act and bitumen is found in solid state and to bring it
in the liquid form, water is added to it and very little
quantity is used in the process. Elaborating the said
submission, it was urged that when bitumen is available in
the liquid form, it is known as bitumen emulsion and is
commonly known as bitumen when it is available in the
solid form; and both the commodities are understood in the
same manner in the commercial world and the end use is
the same and, therefore, the rate of tax to be determined
has to be the same as prescribed for bitumen.;
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