SAIKH ABDUL, J. -
(1.) IN the above two cases the parties are the same and so also the facts and circumstances of the cases and consequently the determining points are also same and identical and hence both the cases are taken up together for consideration and decision by this common judgment. The petitioner in both the cases is a manufacturer of tanks used in making transformers. It is a company under the Companies Act and is a registered dealer under the West Bengal Value Added Tax (VAT) Act, 2003 and also under the Central. Sales Tax Act, 1956. The petitioner accordingly filed returns for the periods from 2007 -08 to the period of December, 2009 and paid tax at four per cent for the manufactured goods. On assessment a notice dated April 21, 2010 was issued in form 20, by the Sales Tax Officer, Salt Lake Charge (respondent No. 1) informing the petitioner that a sum of Rs. 3,57,044 had to be paid by May 27, 2010 as short -payment was made for the period from April 1, 2009 to December 31, 2009 and/or inviting objection in writing in case of disagreement with the said direction and positively by the date fixed and hence the present application is filed under section 8 of the West Bengal Taxation Tribunal Act, 1987 directly before this Tribunal as it appeared to the petitioner that it would be a mere formality to challenge the said notice and/or the assessment before the appellate and revisional authorities particularly in view of the fact that since the petitioner is regularly manufacturing the tanks for transformers, determination of the rate of tax to be levied for the said goods would arise in every year and for that the matter of rate of tax is required to be settled by this Tribunal.
(2.) It is the contention of the petitioner and submission of Mr. S.K. Chakraborti, learned advocate for the petitioner, that the petitioner uses to manufacture the tanks as per specifications and drawings given by the purchasers and the manufactured tanks are not used for any other purpose but for making the transformers. It is further contended and submitted that inside the manufactured tanks all required parts and accessories of transformers are fitted and without the tank transfer cannot come into existence and, therefore, the manufactured tanks are the essential part of the transformers. It is also contended and submitted that as the manufactured tanks are essential parts and accessories of the transformers and are so manufactured from iron and steel goods specified in section 14(iv) of the Central Sales Tax Act, 1956 and taxable at four per cent and since all the electrical goods, fitted inside the transformer tanks are also chargeable to tax at four per cent, the sale of those tanks are, therefore, also be exigible to tax at four per cent and accordingly with all the returns filed, the petitioner paid tax at four per cent but by the notice in question in form 20 respondent No. 1 has levied and has contemplated to realize the charged tax at 12.5 per cent and hence the question of rate of tax payable on goods is required to be decided by this Tribunal. It is now argued by Mr. Chakraborti that the notice in form 20 so issued under section 41 of the VAT Act, 2003 directing payment of tax at 12.5 per cent instead of four per cent already paid for the period from April 1, 2009 to December 31, 2009 is bad, illegal, erroneous without and/or in excess of jurisdiction and hence it requires to be quashed declaring the tax payable at four per cent. It is further argued that the manufactured tanks of the petitioner, for all practical purposes are transformers and hence, are chargeable to tax at four per cent being the item transformer specified in serial No. 84A of Schedule C, Part I of the VAT Act and as the goods are also manufactured from, iron and steel goods, namely, MS plates, sheets, angles, nuts and bolts, etc., and all those goods are specified under section 14(iv) of the Central Sales Tax Act, 1956 and for that the transformer tanks only cannot be treated chargeable differently at 12.5 per cent. It is also argued by Mr. Chakraborti that as the transformers as goods itself is specified in serial No. 84A of Part I of Schedule C as aforesaid and the electrical goods, out of which the transformers are made are also specified in serial No. 188 of Part III of Schedule C and taxable at four per cent, the manufactured transformer tanks of the petitioner should also be charged at four per cent and not at 12.5 per cent as is determined and is contemplated to realize by respondent No. 1. It is also argued for the petitioner that the transformer tanks being used as containers of metals and articles, namely, electrical goods and being specified in serial No. 190 of Part III of Schedule C to the VAT Act, the manufactured goods of the petitioner are also be assessed to tax at four per cent. On the basis of the above arguments learned advocate prays for quashing the notice by declaring the manufactured goods of the petitioner exigible to tax at four per cent only.
(3.) SINCE the question arises in these two cases is only the rate of tax of the manufactured goods of the petitioner the respondents did not intend to file affidavit -in -opposition disputing the facts and circumstances of these cases but to contest the applications Mr. A.K. Nath, learned State Representative only submitted a written note on the matter for the respondents for consideration in determining the rate of tax in both the cases. Relying on the orders of assessments made by respondent No. 1 and on the written notes it is submitted by Mr. Nath in reply that the manufactured goods of the petitioner, i.e., the tanks of the transformers are not transformers themselves nor those are the cases or boxes of packing or containers of the electrical goods and components used in making the transformers for the purpose of controlling supply of electricity to the machineries used in the industrial manufacturing units. It is further submitted that in view of the above character of the manufactured goods of the petitioner it never comes under serial No. 84A of Part I or under serial No. 188 or 190 of Part III of Schedule C of the VAT Act. Therefore, it is submitted by Mr. Nath that, the manufactured goods of the petitioner can never be treated as goods taxable at four per cent rather contrary to that, i.e., the goods appear to be treated totally a different goods not mentioned in any serial of Part I or Part III of Schedule C and, therefore, those come under Schedule CA and, therefore, exigible to tax at 12.5 per cent. On the basis of the above arguments learned State Representative prays for dismissal of the applications with costs.;