Kalyan Jyoti Sengupta, J. - (1.) THIS writ petitioner abovenamed has impugned judgment and order of the West Bengal Taxation Tribunal (hereinafter in short as the learned "Tribunal") dated July 12, 2011 (Anatech Instruments Pvt. Ltd. v. CTO : [2012] 54 VST 319 (WBTT)) by which the Tribunal refused to grant desired relief to the petitioner. The short fact leading to filing of this application is as follows: The petitioner has been carrying on the business of retail distribution amongst others for resale of glass, glassware, optical and scientific equipment. While carrying on this business the petitioner manufactures, processes or extracts in mining the following class of goods or generates or distributes the above materials. As such the petitioner has not only been duly registered under the West Bengal Value Added Tax Act ("the VAT Act") but also under the Central Sales Tax Act as being dealer of glass, glassware, optical and scientific equipment. The petitioner in recent past filed returns for sale of the goods, namely, diesel smoke meters and gas analyzer describing the same sometimes as a scientific equipment or aforesaid goods themselves, and paid requisite amount of tax according to the petitioner's own classification under the VAT Act at the rate of four per cent. However, it was the contention all along of the petitioner that the above items would fall under entry 54B of Schedule C under item No. (xxviii), however the assessing officer concerned refused to accept such classification and held that the above materials will fall within Schedule CA to the VAT Act to attract the higher rate of levy of tax. This contention was sought to be resolved by bringing action before the Tribunal instead of preferring appeal in recent past. The learned Tribunal did not accept the contention that the aforesaid materials are to be classified within entry 54B, Schedule C of the VAT Act under item No. (xxviii) and rejected the same. Hence the petitioner on earlier occasion came before this court by filing a writ petition in this court, being No. WPTT 38 of 2010 (Anatech Instruments Pvt. Ltd. v. Commercial Tax Officer : [2012] 54 VST 315 (Cal)), this court having, found that the judgment of the learned Tribunal was not on proper application of mind with regard to the contention raised by the petitioner as such operation of the same was kept in abeyance and the learned Tribunal was asked to rehear the matter taking note of the description of the goods given in the registration certificate as well as in the returns filed. The learned Tribunal was also given an option to call for any material that is as literal meaning of the goods and description of the goods in some of the returns as scientific instruments. In terms of the said judgment and order learned Tribunal decided the matter afresh and passed the impugned judgment as above.
(2.) THE learned counsel, Mr. S.K. Chakraborty while repeating his argument made before this court on earlier occasion and also made before the learned Tribunal at the time of fresh hearing that smoke meter and gas analyzer would come within the description of "plant and machinery" and will fall within entry 54B of Schedule C of the VAT Act, according to him the aforesaid equipments are essential machines for manufacturing automobile and without the same the vehicles and cars cannot be put on road in use. Hence the nature and character of the machines and also user thereof would fall without the above classification. His alternative argument is that if it is a fact then the same should come within the meaning of tools as mentioned in entry 83(c) of Schedule C of the VAT Act. In both the cases chargeable rate is four per cent.
(3.) MR . Abhrotosh Majumder, learned counsel appearing for the State, submits that the judgment and order of the learned Tribunal does not call for any interference as it has been held on examining not only the nature and character of the machine and user thereof but also components thereof. On fact -finding the learned Tribunal concluded that automobile in any stretch of imagination cannot be described as plant and machinery as mentioned in item No. 54B, Schedule C of the VAT Act. In support of his contention he has relied on two Supreme Court decisions rendered in cases of Royal Hatcheries Pvt. Ltd. v. State of Andhra Pradesh : [1994] 92 STC 239 (SC) : [1994] Supp 1 SCC 429 and Grasim Industries Ltd. v. Collector of Customs, Bombay : [2002] 128 STC 349 (SC) : [2002] 4 SCC 297, respectively.;