- (1.) Having lost concurrently before all the appellate authorities below, namely, Deputy Commissioner (Appeals) and Rajasthan Tax Board, Ajmer, the petitioner-Revenue is before this court in the present revision petition being aggrieved by the Tax Board order dated July 5, 2010 by which the Tax Board held against the assessee that the goods manufactured and sold by it, namely, aluminium grill or aluminium grill section was not taxable under the Rajasthan Value Added Tax Act, 2003, which came into force with effect from April 1, 2006, as "metal mesh" at four per cent under Schedule IV of the Act but at 12.5 per cent under the residuary entry in Schedule V of the said Act but set aside the penalty imposed on the assessee under section 61 of the Act. The controversy involved in the present revision petition has already been decided by this court, at principal seat, while dismissing revision petitions filed by the assessee as well as Revenue being S.B.C.S.T.R. No. 136 of 2010 (Agarwal Aluminium v. Asst. Commissioner A/E, Circle-III, Jaipur) dismissed the revision petitions of the assessee and Revenue both vide judgment dated October 22, 2011 and held as under: 25. The common parlance test or trade parlance test when applied in the present case, the assessee himself has been describing the commodity in question as 'aluminium grill sections' and 'aluminium grills' in his sale invoices, packing slips, insurance documents and bills and bilty including the statement of partner of the said firm himself. No other evidence than the own admission of the assessee itself goes in favour of the Revenue in the present case. It is only when VAT Act was introduced with effect from April 1, 2006 that in order to get the benefit of lower rate of tax of four per cent applicable in Schedule IV of the VAT Act the assessee changed its description of goods from aluminium grill or aluminium grill section to 'metal mesh'. Such a change of description has neither changed the production process nor the understanding of people dealing in the trade or common man and aluminium, grills of different sizes or shapes with holes would remain the 'aluminium grills' or 'aluminium grill sections' but would not become 'metal mesh' merely because there are holes in the same created by the process of slitting and expanding. 26. As held above, since, the word 'mesh' necessarily implies and includes the process of netting or weaving of the wires which may be of different widths, but since no such weaving or netting process is admittedly carried out by the assessee in its manufacturing process, it is not possible to include 'aluminium grills' or 'aluminium grill sections' manufactured by the assessee within the ambit and scope of words 'metal mesh' in entry 92.8 of Schedule IV along with words wire mesh, wire netting and barbed wire. The same has to be therefore held to be taxable in the residuary entry at 12.5 per cent in Schedule V of the Act. 27. Even if two views were possible, the benefit could be given to the assessee but, it does not seem to this court that two views for interpretation of those goods and apply entry No. 92.8 are possible. The commodity in question was described by the assessee right from the beginning as 'aluminium grills' or 'aluminium grill sections' and never the words 'metal mesh' occurred to them or so applied in the relevant documents during the contemporary period prior to April 1, 2006, when finding the entry 92.8 useful and attracting lesser rate of tax, the assessee shifted its stand and changed the description from 'aluminium grills' or 'aluminium grill sections' to 'metal mesh'. Such a change of stand, which may or may not be bona fide, does not change the legal position for the assessee. 28. Therefore, the authorities below concurrently and rightly held in the case of the assessee that the commodity in question could not fall under any specific entry particularly entry 92.8 of Schedule IV of the Act and, therefore, the same could not be taxed at four per cent and was liable to be taxed at 12.5 per cent under the residuary entry in Schedule V of the Act. Such concurrent findings, therefore, deserve to be confirmed and revision petitions filed by the assessee to this extent deserve to be dismissed. 29. So far as question of penalty under section 61 is concerned, the appellate authorities below appear to be justified in holding that the penalty under section 61 of the Act could not be imposed upon the assessee since the assessee had disclosed all the relevant particulars in its returns and relevant documents, vouchers and books of accounts and has not withheld any vital information from the Department nor furnished any inaccurate particular to the assessing authority, which is sine qua non for imposition of penalty under section 61 of the Act. Mere raising of contention by the assessee that it was liable to pay lesser rate of tax of four per cent treating the commodity as 'metal mesh', which contention has not found favour at all with the Departmental authorities or even this court, it does not necessarily mean that the assessee was guilty of concealing any material information or furnishing inaccurate particulars in its returns. Therefore, the deletion of penalty by the appellate authorities under section 61 of the Act deserves to be upheld and for this reason the revision petitions filed by the Revenue are also liable to be dismissed. 30. Accordingly, the revision petitions filed by the assessee as well as Revenue are hereby dismissed. Costs easy. Sd/- (Dr. Vineet Kothari J.)
(2.) Accordingly, the present revision petition filed by the petitioner-Revenue is also disposed of in terms of the aforesaid decision rendered in the case, of Agarwal Aluminium v. Asst. Commissioner A/E, Circle-III, Jaipur, decided on October 22, 2011. No costs. Copy of this order be sent to the respondent-assessee forthwith.;