- (1.) THESE three revision petitioner raise a common question of law and, therefore, I propose to decide all these revision petitions by a common judgment. For the proper understanding of the case, the facts of S. B. . Sales Tax Revision No. 963/87 M/s. Mukesh Prathisthan vs. Commercial Taxes Officer are taken into consideration.
(2.) THE assessee petitioner is a dealer dealing in packing material, stationery, medicine, straw board etc at Jasol, Balotra. For the assessment year 1976-77 and 1977-78 the petitioner's sales for kesophane packing material was initially assessed at the rate of 4% while completing the assessment under section 10 of the Rajasthan Sales Tax Act. THE assessing authority thereafter reopened the assessment of the assessee petitioner for these 2 years under section 12 of the Act after issuing notice to the petitioner, and while completing the assessment, came to the conclusion that the kesophene packing material is chargeable at the rate of 7% under the residuary clause and cannot be charged as packing material at the rate of 4%. THE assessing authority also charged the interest under Section 113 of the Rajasthan Sales Tax Act on the enhanced tax so levied. Dissatisfied with the order passed by the Assessing Authority the assessee preferred appeals before the Deputy Commissioner (Appeals) Commercial Taxes Jodhpur who by his judgment dated 8th of June, 1984 allowed both the appeals filed by the assessee, set aside the demand raised by the assessing authority as well as the interest charged under section 11 of the Sales Tax Act. While deciding the appeals the Deputy Commissioner (Appeals) came to the conclusion that kesophane packing material is covered under entry 'g' of the entries which contain polythene and alkathaene packing material. Aggrieved with the order passed by the Deputy Commissioner (Appeals) allowing the appeals of the assessee the Revenue preferred appeals before the Rajasthan Salex Tax Tribunal Ajmer and the Tribunal by its judgment dated 30. 10. 1987 allowed both the appeals filed by the Revenue and set aside the order passed by the Deputy Commissioner (Appeals) and restored the order passed by the Assessing Authority and held that tax on kesophene packing material is leviable at the rate of 7% under the residuary clause and it is not covered under entry 'g', relating to the packing material. I have heard learned counsel for the parties. The main contention of Shri Vineeth Kothari, counsel for the petitioner is that kesophene packing material falls under entry 'g' of the entry relating to the packing material. According to him, entry 'g' is sufficiently wide and covers the kesophene packing material also. According to the learned counsel for the petitioner, kesophene is a product name given buy its manufacturer in a trade but actually it is a cell-phone. In support of his contention, the learned counsel for the petitioner has placed reliance over Shri Ram Trading Co. Vs. State of Kerala (1 ). He has also placed reliance over the definition of the word "cell-phone" given in Encyclopaedia Britannia Micro Vol. 2 page 673. The other contention of the counsel for the petitioner is that interest under section 118 of the Act cannot be charged in the present case. In support of this contention, he has placed reliance over the judgment, of the Rajasthan High Court in Commercial Taxes Officer vs. Malwaya Minerals and Motor Parts (2 ). Mr. P. K. Bhansali, appearing before the Revenue on the other hand, has supported the judgment passed by the Tribunal and according to him no question of law arises in the present case and as such the revision petition is not maintainable. His submission is that the judgment of the Sales Tax Tribunal is based on the Division Bench judgment of the Rajasthan High Court in Century Ecko vs. State of Rajasthan (3 ). According to him the list issued with the notification containing the packing material is exhaustive and it is. not an illustrative one and, therefore, whatever the names have been included in the list only those items are to be changed at the rate of 4% and the items which are not included in the list are to be charged under the residuary clause at the rate of 7%. The entry regarding the kesophene packing material has been included for the first time in the year 1979 and, therefore, prior to that sales tax on kesophene packing material is to be charged at the rate of 7%. i. e. under the residuary clause. Now I take up the history of the imposition of tax by the State Government of packing materials. The State Government by its notification. F. 5 (21) FD (CT) 71-3 dated March 27, 1971, in exercise of its powers under section 5 of the Rajasthan Sales Tax Act notified with immediate effect the rate of tax payable by the dealer at the rate of 3% in respect of packing material i. e. to say. . . . . . . polythene and alkathene packing material Again by notification No. F. 2 (8) F. D. Gr. IV/75/9 dated July 1, 1975 the State Government issued a fresh notification providing the list of rate of tax payable by a dealer in respect of goods specified in column No. 2 of the list and providing the rate of tax payable thereon as in column No. 3 of the list. The notification issued by the Government is as under :-- S. No. 285 F. 2 (8) FD. Gr. IV/75-9 dated 1. 7. 75. S. D. 52 : In exercise of the powers conferred by S. 5 of the RST Act, 1954 the Govt. of Rajasthan being of the opinion that it is expedient in the public interest to do so, hereby provides that the rate of tax payable by a dealer in respect of the goods specified in column 2 of the list annexed hereto shall be as shown against them in column 3 of the said list. S. No. Description of goods Rate of tax. 1. . . . . 2. . . . . 3. . . . . 4. . . . . 5. . . . . . . . .
(3.) . . . . Packing material, that is to say ,-- 4% (a) Gunny bags and hession. 193 (b) Jute twins. (c) Craft paper and craft bags. (d) Empty tins and empty barrels. (e) Empty bottles and corks. (f) Wooden boxes (khokhas) and tin boxes. (g) Polythene and alkathene packing material. (h) Bituminised packing material. 4% . ;