- (1.) This revision petition has been filed by the petitionerRevenue against the order of the learned Tax Board dated 31.03.2004 whereby the learned Tax Board dismissed the Revenue's appeal No.1046/2003/Bhilwara upholding the order of the Deputy Commissioner (Appeals) dated 26.12.2002. The learned Tax Board held for assessment year 1996-97 that the rate of sales tax applicable on the sale of aluminum conductors manufactured by the respondentassessee M/s Amit Conductors, Gulabpura was correctly applied @ 10% under the residuary entry No.81 of Notification SO No.1037 dated 15.03.1996; and the learned Assessing Authority was not justified in invoking rectification powers under Section 37 of the RST Act, to impose difference tax of 2% by holding that such aluminum conductors (wires) would be taxable @ 12% for the relevant period under Entry No.81 of the aforesaid notification dated 15.03.1996. The entry No.81 of the said notification is reproduced herein below for ready reference: "81. (a) All kinds of electrical goods, including casing, electric fans, lighting bulbs, electric earthenware, electric porcelain ware and parts and accessories thereof; (b) Electrically operated anti-mosquito devices and repellents used therein, room freshners including those operated electrically or with manual sprayers; (c) Electronic home appliances including parts and accessories thereof." 12%
(2.) Learned counsel for the petitioner-Revenue, Mr. Sharad Tatiya for Mr. V.K. Mathur, submitted that aluminum conductors being electrical goods, were correctly taxable @ 12% and the Assessing Authority was justified in relying upon the Division Bench decision of this Court in the case of State of Rajasthan Vs. Jaipur Metal & Electricals Ltd., 1981 48 STC 66. Therefore, he submitted that the learned Tax Board has erred in rejecting Revenue's appeal.
(3.) On the other hand, Mr. Sanjeev Johari, learned counsel for the respondent-Assessee submitted that the order of the Tax Board deserves to be upheld on the following counts viz.: (i) that powers of rectification under Section 37 of the Act could not be invoked to impose difference rate of tax on a issue, which was highly debatable. Whether the goods in question fall under entry 81 or not, requires a debate and same could not be said to be an error apparent on the face of record in the original assessment order, and therefore, the rectification under Section 37 of the Act was not possible. (ii)that the Division Bench decision of this Court in the case of Jaipur Metals and Electricals Ltd. (supra) has not even laid down that the aluminum conductors along with copper category wires/conductors were electrical goods of type contained in Entry 81 in the notification dated 15.03.1996 applicable to the present assessment year 1996-97. On the other hand, the Entry No.29 dealt with by the Division Bench of this Court reads as under, which was held applicable for applying the rate of tax on 5% as against the 10% imposed by the Assessing Authority treating such conductors as electrical goods. "29. All plants and equipments and their accessories (including service meters) required for generation, transmission or distribution of electric power." 5% He, therefore, submitted that the learned Assessing Authority completely misapplied the said Division Bench decision while invoking powers under Section 37 of the Act to impose such difference rate of tax. (iii)Thirdly, he submitted that in absence of any specific entry in the notification dated 15.03.1996 covering the sale of aluminum conductors (wires), used for transmission of power was rightly taxed in the original assessment @ 10% under the residuary entry of the said notification dated 15.03.1996 and difference rate of tax of 2% under Entry 81, quoted above, could not be imposed on the respondent-Assessee. ;