Dr. Vineet Kothari, J. - (1.) The present revision petition under Sec. 84 of the Rajasthan Value Added Tax Act, 2003 read with Sec. 86 of the Rajasthan Sales Tax Act, 1994 is directed against the order dated 05.07.2010 passed by the learned Rajasthan Tax Board, Ajmer in Appeal No. 435/2009/JODHPUR - Assistant Commissioner, Anti -Evasion, Rajasthan -III, Jaipur Vs. M/s. P.N. Agarwal & Co., Jodhpur, dismissing the appeal of the Revenue filed against the order dated 30.08.2008 passed by the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur, partly allowing the appeal filed by the Assessee.
(2.) Mr. V.K. Mathur, learned counsel for the Revenue submitted that the controversy involved in the present case is covered by the judgment of this Court in the case of Sister concern of the assessee, namely, M/s. Agarwal Aluminium, Jodhpur Vs. Assistant Commissioner, Commercial Taxes, Anti -Evasion, Rajasthan Circle -III, Jaipur (S.B. Sales Tax Revision Petition No. 136/2010 decided on 22.10.2011).
(3.) In M/s. Agarwal Aluminium, Jodhpur Vs. Assistant Commissioner, Commercial Taxes, Anti -Evasion, Rajasthan Circle -III, Jaipur (supra) on 22.10.2011, this Court passed the following order: - 19. The Rajasthan Value Added Tax Act was enacted in the year 2003 when countrywide all the States were shifting from State Sales Tax legislation to Value Added Tax system popularly known as VAT Regime. The classification of various commodities was adopted from earlier legislations, Central Excise classification based on HSN; classification of goods which is adopted in various developed countries and thus a well designed and defined and minute classification of goods was made in five Schedules attached with the Rajasthan VAT Act, 2003 and, therefore, by and large all commodities of which manufacture or trade takes place in the country were separately defined and included specifically in the said Schedules. Still some terms by their definition are of broad nature and, therefore, the question of interpretation as to whether the commodity which is not specifically mentioned or included in any of the Schedules can be so interpreted to be included in any particular item included in such Schedules or not and if not whether Schedule V containing Residuary Entry and providing for 12.5% tax has to be applied to such commodity in question. Again the legal principle that if a commodity can fall in any specific Entry, the Residuary Entry cannot be resorted to has to be kept in mind and on these legal principles, there is no dispute or debate in the present case from the either side and, therefore, in the light of aforesaid legal principles, this Court would proceed to examine as to whether the commodity in question namely Aluminum Grill or Aluminum Grill Sec. manufactured by the assessee is taxable at 4% under Entry 92.8 of Schedule IV of the Act or at 12.5% in Schedule V containing Residuary Entry of the said Act. 20. The manufacturing process of manufacturing Aluminum Grill or Aluminum Grill Section, namely by slitting and expanding the aluminum section, profiles or metal Ss. has already been explained above and the limited question is whether such 'Aluminum Grill' can fall within the words 'Metal Mesh' along with 'wire Mesh' and 'wire netting' and 'barbed wire' in Entry No. 92.8 or not. 21. Some of the dictionary meaning of Mesh and Grill may be noticed here. Oxford Dictionaries Online defines Mesh as noun in the following terms: (1) material made of a network of wire or thread: mesh for fishing nets the spacing between the individual strands that form mesh: (2) an interlaced structure: As verb 'Mesh' has been defined as make or become entangled or entwined. Webster's Dictionary defines 'Mesh' as (i) one of the opening between threads or cords of a net, one of the similar spaces in a network -often used to designate screen size as the number of openings per linear inch; (ii)(a) the fabric of a net; (b) a woven, knit, or knotted material or open texture with evenly spaced holes; (c) an arrangement of inter locking metal links used specially for jewelry; (iii) an interlocking or intervening arrangement for construction. Oxford English Dictionary defines 'Mesh' as (i) material made of a network of wire or thread (ii) the spacing of strands of a net; (iii) a complex or restricting situation. Oxford Advanced Learner's dictionary defines 'Mesh' as noun as (1) material made of threads of plastic rope or wire that are woven together like a net: wire mesh over the door of the cage (2) a complicated situation or system that it is difficult to escape from. The word 'Grill' has been defined in Webster's Dictionary as noun as (i) a grating forming barrier or screen; an ornamental one at the front end of an automobile; (ii) an opening covered with grille; grill - cooking utensils on parallel bar on which food is expressed to heat (as from charcoal or electricity); food i.e. broiled usually on a grill. Oxford English Dictionary defines 'Grill" as a noun as a grating or screen of metal bars or wires; grill (n)(i) a device on cooker that directs heat down wards for cooking food; (ii) a gridiron used for cooking food on an open fire; (iii) dish of food cooked using grill (n) a frame works of parallel cross bars that cover an opening. Oxford Advanced Learner's Dictionary defines 'Grill' as (1) the part of a cooker that directs heat downwards to cook food that is placed underneath it (2) a flat metal frame that you put food on to cook over a fire, (3) a dish of grilled food, especially meat, (4) a restaurant serving grilled food. 22. The word 'Wire', which is used in three of the descriptions in Entry 92.8 has been defined in the following manner: metal in the form of thin thread; a piece of this; a coil of copper wire, a wire rack/basket. 23. The Entry 92.4 and 92.8 were considered by this Court while considering the submissions made at the bar by learned counsel for the petitioner Mr. Dinesh Mehta. It appears that Entry 92.4 including all kinds of metal sections, including slotted angles, shelves and accessories would not apply in the present case as Metal Ss. are purchased by the petitioner as raw material from M/s. Hindalco Industries Limited and what is manufactured by the petitioner is 'Aluminum Grill Sections' or 'Aluminum Grills' and, therefore, Entry No. 92.4 would not apply to the present case and that is why learned counsel for the petitioner assessee rightly did not press for including the commodity in question in Entry 92.4. 24. Now coming to Entry 92.8 on which full emphasis was placed by the learned counsel for the petitioner as according to him 'Aluminum Grill Sections' or 'Aluminum Grills' manufactured by the petitioner assessee would be covered by Entry 'Metal Mesh' is also not very convincing because the word 'Mesh' necessarily includes the process of weaving or netting of wires with specified sized holes in between and that why the word 'Metal Mesh' has been included in Entry 92.8 along with wire mesh, wire netting and barbed wire as all these categories of goods definitely includes process of netting or weaving of wires. Since wires can be metallic or non -metallic like plastic also, the word 'Metal Mesh' has been separately included in the Entry 92.8. The word 'wire mesh' in Entry 92.8 includes both 'metallic wire mesh' or 'non -metallic wire mesh' and, therefore, the words 'metal mesh' is a further specie of genus 'wire mesh'. Reading of entry 'metal mesh' in ejusdum generis' with other three categories of Entry 92.8 does not leave any manner of doubt that 'Aluminum Grill Sections' or 'Aluminum Grills' manufactured and sold by the petitioner assessee would not be covered by 'Metal Mesh' included in Entry 92.8. Entry 92 itself includes so many items which are used in furniture industries for fitting of doors and windows in houses and are generally saleble at the hardware shops dealing with such hardware items. It may be that even Aluminum Grills manufactured and sold by the petitioner assessee or its sister concern may also be sold at such Hardware stores but that would not determine whether such commodity is covered by this taxable entry or not. Such sister concern, the retailer M/s. P.N. Agarwal & Co. may also be getting benefit of input tax credit of differential tax also paid by the present manufacturer assessee, but that is not relevant to decide the controversy in hand. 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 'Aluminum Grill Sections' and 'Aluminum Grills' in his sale invoices, packing slips, insurance documents and bills and bilty including the statement of partner of said firm himself. No other evidence than the own admission of assessee itself goes in favour of Revenue in the present case. It is only when VAT Act was introduced w.e.f. 1.4.2006 that in order to get the benefit of lower rate of tax of 4% applicable in Schedule IV of the VAT Act, the assessee changed its description of goods from Aluminum Grill or Aluminum Grill Sec. 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 Aluminum Grills of different sizes or shapes with holes would remain the 'Aluminum Grills' or 'Aluminum 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 'Aluminum Grills' or 'Aluminum 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 @ 12.5% 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 the Entry No. 92.8 are possible. The commodity in question was described by the assessee right from the beginning as 'Aluminum Grills' or 'Aluminum Grill Sections' and never the words 'Metal Mesh' occurred to them or so applied in the relevant documents during the contemporary period prior to 1.4.2006, when finding the Entry 92.8 useful and attracting lesser rate of tax, the assessee shifted its stand and changed the description from 'Aluminum Grills' or 'Aluminum 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 @ 4% and was liable to be taxed @ 12.5% 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 Sec. 61 is concerned, the appellate authorities below appear to be justified in holding that the penalty under Sec. 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 Sec. 61 of the Act. Mere raising of contention by the assessee that it was liable to pay lesser rate of tax of 4% 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 Sec. 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.";