YASHWANT VARMA,J. - (1.) Heard learned counsel for the revisionist and Shri B.K. Pandey, learned Standing Counsel for the opposite party.
(2.) These four revisions raise the issue of taxability of burnt coal under the provisions of the U.P. Value Added Tax Act 20081. With the consent of learned counsel for parties CTR No. 1239 of 2012 is treated as the lead revision. While CTR No. 1239 of 2012 relates to Assessment Year 2002-03, CTR No. 134 of 2016 pertains to Assessment Year 2005-06, CTR 135 of 2016 relates to Assessment Year 200405 and CTR No. 1240 of 2012 pertains to the Assessment Year 2002-03.
(3.) The revisionist is stated to be engaged in the facture of paper. For the purposes of energising its furnace, it uses wood, waste pulp, coal and furnace oil. According to it in the process of facturing paper and at the end of the facturing operation a residue of coal is left over which is then sold by the revisionist. Admittedly this residual article in Assessment Years 1999-2000, 2000-01, 2001-02 was treated to be an article falling under the entry of "coal including coke in all its form.." and thus taxed at the rate of 4%. From Assessment Years 200203, the Department has changed its position and has held that this residual article is liable to be treated as "unclassified" and therefore taxable at the rate of 10%. This shift in the view of the Department is based primarily on two decisions of the Court rendered in Commissioner of Sales Tax v. Modi Spinning and Weaving Mills 2004 NTN (25) 958 and Commissioner of Sales Tax v. British India Corporation Limited 2004 NTN (25) 1230 .;