- (1.) The only question mooted in the above revisions is whether the 'coconut oil' sold by the dealer applicant under the branded name 'parachute coconut oil' is liable to be taxed under the entry of 'oils of all kinds' or 'cosmetics and toilet requisites', under the U.P. Trade Tax Act (hereinafter referred as the Act).
(2.) The dispute relates to the assessment years 1981-82, 1982-83, 1983-84 and 1984-85 (provincial). The dealer is carrying on the business of coconut oil, tooth powder etc. The coconut oil which is presently in dispute in these revisions was taxed at the rate of 12% treating it to be cosmetics by the Assessing Officer. The said order was challenged successfully in appeal before the Deputy Commissioner (Appeal) who held that 'parachute branded oil' is liable to be taxed under the category of 'oils of all kinds'. The department challenged the legality and propriety of the order of the first appellate authority by filing second appeals Nos. 147 of 1987, 150 of 1989, 209 of 1989 and 190 of 1990 for the assessment years 1981-82 to 1984-85 respectively. The Tribunal after examining the matter with some detail allowed the appeals by setting aside the order of the first appellate authority and restored back the matter to the Assessing Authority with certain directions contained therein. Challenging the findings recorded by the Tribunal, the present revisions have been preferred by the dealer. In the memo of revisions, the following questions of law have been sought to be raised: (i) Whether the Trade Tax Tribunal is legally justified in law in completely over-looking the relevant Notifications, as also the various decisions and material evidence placed by the applicant Company in support of its case in deciding the issue involved in the present case. (ii) Whether the Trade Tax Tribunal is correct in law, on one hand recording its finding that the product manufactured and sold by the applicant Company, is Coconut Oil which is covered under the various notifications but while concluding the issue, forming its own view on the basis of the Brand Name used by the applicant Company and holding that the goods manufactured is not covered under the head of definition of "Oils of all kinds. (iii) Whether the Tribunal is legally justified in law in expressing its opinion against the applicant Company, as it appears and remanding the matter back to the assessing authority for fresh investigation. (iv) Whether on the facts and circumstances of the case, the finding recorded by the Tribunal is at all correct in the eyes of law. (v) Whether in any view of the matter, the impugned order of the Tribunal is correct in the eyes of law as the Tribunal completely over-looked, even not recorded any finding of own regarding the findings recorded by the Deputy Commissioner, deciding the matter and allowing the appeal of the applicant Company. (vi) Whether the Tribunal is legally correct in law in allowing the appeal filed by the Department, completely overlooking the facts as well as nature of the case and remanding the matter to the Assessing Authority overlooking the material aspect of the matter that the matter relates for the assessment year 1981-82 to 1984-85 i.e. to say, the matter is about 18 years old. (vii) Whether in any view of the matter, the impugned order of the Tribunal is sustainable in the eyes of law. However, the learned Counsel for the applicant confined his argument to the question with regard to the taxability of the commodity in question. The main plank of the argument is that the commodity in question is 'coconut oil' and is liable to be taxed as 'oil of all kinds' notwithstanding the fact that the dealer itself has represented to the public at large through advertisement including in T.V. Channel that the product is meant for use on hair.
(3.) Before proceeding further, it is relevant to notice the relevant entries in two competitive notifications. Entry No. 31 in notification No. 5785 dated 7-9-1981 reads as follows: JUDGEMENT_419_LAWS(ALL)8_2008_1.html;