M.M. Kumar, J. - (1.) THIS is assessee's appeal filed under Section 68 of the Punjab Value Added Tax Act, 2005 (as applicable to the Union Territory of Chandigarh)(for brevity, "the VAT Act"), challenging the order dated September 19, 2007, passed by the Value Added Tax Tribunal, Union Territory, Chandigarh (for brevity, "the Tribunal") in Appeal No. 74 of 2007. The appellant -assessee has claimed that the following substantial question of law would arise for determination of this court: Whether HDPE/PP fabrics are covered by entry "textile fabrics" given in entry 52 of Schedule A appended to the Punjab Value Added Tax Act, 2005 (as applicable to the Union Territory, Chandigarh) and, therefore, exempt from payment of tax in the Union Territory of Chandigarh?
(2.) FACTS are not in dispute. The appellant -assessee is a dealer registered under the provisions of the VAT Act. It deals in the sale of high density poly ethylene/propylene (for brevity, "HDPE/PP") poly fabrics. The appellant -assessee was registered as a dealer even before the VAT Act was applied to the Union Territory of Chandigarh, under the provisions of the Punjab General Sales Tax Act, 1948 (as applicable to the Union Territory of Chandigarh) (for brevity, "the Sales Tax Act"). The appellant -assessee filed their return by placing reliance on entry 52 of Schedule "A", which contained the list of tax -free goods. Entry reads "textile fabric including terry towels". It was claimed that the goods were covered by tax -free entry and no tax was payable. However, the departmental authorities raised an objection. The appellant -assessee filed an application under Section 85 of the VAT Act (Al) to the Excise and Taxation Commissioner, Union Territory of Chandigarh, for determination of the question as to whether HDPE/PP fabrics are covered by entry textile fabric given in entry 52 of Schedule "A" appended to the VAT Act. The assessee -appellant, inter alia, placed reliance upon a booklet issued by the Bureau of Indian Standards (A2), claiming that HDPE woven textile was qualified as textile. The Excise and Taxation Commissioner, vide his order dated September 20, 2006 (A3) opined against the appellant -assessee holding that the item dealt with by the assessee -appellant is covered by Schedule "F" of the VAT Act and as such it was taxable at 12.5 per cent. It was further held that HDPE/PP (polypropylene) fabric is not covered under entry 52 of Schedule "A" of the VAT Act. Thereafter appeal was preferred before the Tribunal (A4). The Tribunal after detailed examination of the facts came to the conclusion that the item in dispute was covered by entry 58 of Schedule "B", which is further dealt in "list of industrial inputs and packing materials". The list has mentioned HDPE, at serial No. 162, as "packing material item attracting VAT at four per cent". The view of the Tribunal is discernible from the concluding para, which reads as under: We have gone through Chapter 39 of the Central Excise Act and also the list containing goods listed under various headings appended to item No. 58 of Schedule B of the VAT Act, 2005. These do not tally with each other. There is no entry in the list of headings of VAT Act, 2005 with No. 3926 whereas there is an entry No. 3926.90 in the list of goods appended to the Central Excise Act. The contention of the learned Counsel for the appellant that under repealed Act of 1948 these goods were not taxable is not acceptable because the matter is to be decided under the VAT Act, 2005. We are also of the view that the goods in question are not covered under entry 52 of Schedule A of the Act of 2005 and the clarification given by the Commissioner to that extent is correct. The Commissioner has held it taxable at the rate of 12.5 per cent as he observed that these goods find no place in Schedule A or B of the Act of 2005. But entry 58 of Schedule B has not been considered in its correct perspective. List of goods appended to Schedule B contains an entry at 202 pertaining to packing material of all kinds. During the course of arguments neither party has denied that the goods in question are mainly used as packing material in its present form or even in its changed form, i.e., bags. Schedule "B" appended to the Act contains a "list of industrial inputs and packing materials (see entry No. 58 of Schedule B)" which mentions HDPE at serial No. 162 as packing material item attracting value added tax at four per cent. Both, the appellant as well as respondent agree that the material is HDPE though in the billing it has been written as HDPE/PP. The primary consideration in deciding the category under which the material in question should fall is whether it is a packing material or not. Looking at it from this crucial aspect the goods in question are covered under item No. 58 read with items 202 and 162 of the list containing goods taxable at the rate of four per cent. The order of the Commissioner is thus modified to the extent that tax at the rate of four per cent is leviable upon the goods in question and not at the rate of 12.5 per cent. The appeal is decided in these terms. Mr. K.L. Goyal, learned Counsel for the assessee -appellant, has submitted that the Tribunal has committed grave error in law because HDPE may be covered by entry 58 read with list item No. 162 of Schedule "B" but the product like fabrics made from HDPE would not be covered. According to learned counsel, HDPE in its granular form is different than by -product like fiber and polythene. Learned Counsel has emphasised that the assessee -appellant uses HDPE for the purposes of producing polythene sheets/fabrics. In support of his submission, learned Counsel has placed reliance on a Division Bench judgment of the Madras High Court in the case of State of Tamil Nadu v. Polyweb Private Ltd., [1982] 51 STC 364 and a single bench judgment of the Allahabad High Court in the case of Commissioner of Sales Tax v. Kanpur Plastic Pack (P.) Ltd., [1984] 57 STC 188. He has further submitted that the specification made by the Indian Standard Institute (ISI) like annexure A2, would also be relevant as has been held by the honourable Supreme Court in the case of Union of India v. : 1973ECR56(SC) . According to learned counsel, HDPE, which is in granular form is more like cotton, which can be subjected to various processes to become fabric. He has also stressed that in order to avail the benefit under entry 52 all that is required to be shown is that the goods in question has to be fabric, which would include artificial plastic material, which is pliable and is capable of being rapped, folded or wound around. He has pointed out that it is not necessary that the material should be suitable for making garments because there could be cloth suitable only for industrial purposes in spite of the fact that it possesses the basic feature of pliability. For the aforementioned submission, learned Counsel has placed reliance on a Constitution Bench judgment of the honourable Supreme Court in the case of Filterco v. : 1986(24)ELT180(SC) .
(3.) WE have gone through the paper book and various orders passed by the Excise and Taxation Commissioner and that of the Tribunal and have also reflected on the submissions made by learned Counsel. It would be necessary to first glance through the relevant entries of Schedules "A" and "B" along with lists, relevant portions of which are extracted as under: Schedule A (See Section 16) List of tax -free goods - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Serial No. Name of Commodity - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1 to 51 ... 52 Textile fabric including terry towels 53 to 57 ... - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Schedule B (See Section 8) List of goods taxable at four per cent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Serial No. Name of Commodity - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1 to 57 ... 58 Industrial inputs and packing materials (as per list appended to the Schedule). 59 to 135 ... - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - List of industrial inputs and packing materials (See entry number 58 of Schedule B) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Serial No. Heading No. Description - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (1) (2) (3) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1 to 161 ... ... 162 3901.10.90 High Density Polyethylene (HDPE) 163 to 201 ... ... 202 All packing material including plastic cont - ainers, tin containers and glass containers. 203 to 239 ... ... - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -;