EVER BRIGHT PLASTIC WORKS AND ANOTHER Vs. COMMISSIONER OF SALES TAX AND ANOTHER

JUDGEMENT

(1.)

(2.) BOTH the applications under section 8 of the West Bengal Taxation Tribunal Act, 1987 are directed against the notices issued in form 20 under section 41 of the West Bengal Value Added Tax Act, 2003 read with rule 52(1) of the West Bengal Value Added Tax Rules, 2005 directing deposit of sums in respect of the periods quarter ending 9 of 2008 and 12 of 2008 to the petitioner of 258 of 2009 and in respect of the period quarter ending 9 of 2008 to the petitioner of the RN -278 of 2009 the petitioner of the Case No. RN -258 of 2009 states that before the service of the aforesaid notices the Assistant Commissioner of Commercial Taxes, Amratola charge under memo No. 5797 dated January 7, 2009 had sent a notice in respect of quarter ending 6/2008. In this memo citing the decision of the honourable Madras High Court F. Rose Mary Carpentry Works v. State of Madras reported in : (1964) 15 STC 924 (Mad) it was told that the items sold by the petitioner of the Case No. 258 of 2009 were not covered by the serial No. 47 of Part I of Schedule C read with the serial No. 155 of Part III of the same Schedule. Those items would attract sales tax at 12.5 per cent because those were not provided in the Schedules A, B, C and D. In respect thereto the learned advocate of the petitioner of the Case No. RN -258 of 2009 quoting the judgment of the honourable Supreme Court Commissioner of Sales Tax v. Jaswant Singh Charan Singh reported in : (1967) 19 STC 469 (SC), Indo International Industries v. Commissioner of Sales Tax : (1981) 47 STC 359 (SC) and Filterco v. Commissioner of Sales Tax : (1986) 61 STC 318 (SC) under this letter dated March 23, 2009 to respondent No. 2 claimed that the articles manufactured by his client were commonly known as plastic containers, closures, stoppers, caps or lids in the business community and the items were covered by the aforesaid Schedule C. The petitioner of the RN -278 of 2009 made a reply to the notice in form 20 contending that he sold stoppers and different types of caps of plastics which were used only for the packing. His buyers were M/s. Exide Industries Ltd., who used the aforesaid products for the packing. His products were industrial input and packing materials. Both of the petitioners asserted that their replies were not considered. The petitioner's case is that the goods sold by the petitioners of RN -258 of 2009 were containers and lids of plastics. Those were purchased by M/s. Exide Industries Ltd., to accommodate a complete unit consisting of several electrolytic cells including lead plates which was capable of producing electric energy. Those containers and lids were of different sizes depending upon the size of lead plates and cells. These materials were used as a containers. The petitioner of the RN -278 of 2009 asserted that he sold the stoppers lids and caps made of plastic commonly known and traded as stoppers/buffers, caps and lids. Both the petitioners submitted that the above articles sold by them were covered by the item No. 47 of Part I Schedule C read with item No. 155 of Part III of the same Schedule to the West Bengal Value Added Tax Act, 2003 and by the heading No. 39.23 of the Central Excise Tariffs. They pray for setting aside the notices on the ground that the respondent misinterpreted the provisions as regards the rate of tax and erroneously proposed tax at 12.5 per cent instead of four per cent.

(3.) THE learned advocate for the petitioners Mrs. Chandrima Bhattacharyya contended that the articles sold by the petitioners in both the cases are covered by the provision of item 47 and the Schedule C Part I read with item No. 155 of the Schedule C Part III to the West Bengal Value Added Tax Act, 2003. Item 47 reads, "industrial inputs and packing materials as specified in Part III of this Schedule." Item No. 155 reads "articles for the packing of goods, of plastics, namely, boxes, cases, crates, containers, carboys, bottles, gerry canes and their stoppers, lids, caps of plastic but not including insulated wares" read with heading No. 39.23 of the Central Excise Tariff Act, 1985. So the conditions for the goods being taxable at four per cent are : - -(i) the goods are to be specified in Part III of the Schedule C to the Act and (ii) the goods should be industrial input or packing materials. If both the conditions are satisfied, the goods shall be taxable at four per cent. The goods are specified in the item No. 155 of the Schedule C Part III but the debate is whether those are packing materials. The goods sold in the Case No. RN -258 of 2009 were used as battery shells made of plastic. Mrs. Bhattacharyya argued that these were containers of battery. On the other hand the learned State Representative Mr. B. Majumdar appearing for the Revenue argued that those were storage of battery being component of the battery. In support of her contention Mrs. Bhattacharyya cited the judgment of the Division Bench of the Madhya Pradesh High Court in the case of Eastern Air Products (P) Limited v. Commissioner of Sales Tax, M.P. reported in, (1997) 107 STC 90 (MP), of the Division Bench of the honourable Rajasthan High Court in the case of Udaipur Distiller]/ Co. Ltd. v. Rajasthan Taxation Tribunal reported in : (2003) 132 STC 489 (Raj) and of the Division Bench of the honourable Andhra Pradesh High Court in the case of Hedaplast Industries v. Deputy Commissioner (CT), Charminar Division Hyderabad reported in : (2006) 148 STC 49 (AP). Disputing this view the learned State Representative in support of his contention cited the judgment of the Division Bench of the Madras High Court in the Case of F. Rose Mary Carpentry Works v. State of Madras reported in : (1964) 15 STC 924 (Mad).