TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THESE revision petitions preferred by the Revenue involve same questions of law and, therefore, all these revision petitions are heard together and are being decided by this common order. These revisions petitions were taken up for hearing and after hearing the learned counsel for the parties, this Court, with the assistance of the learned counsel for the parties, formulated following questions of law by order dated 13. 10. 2006 :- 1. Whether Rajasthan Tax Board was right in holding that 'aluminium foils' are covered within expression 'non-ferrous sheets' used in the Notification dated 31. 12. 1975 issued by the State Govt. , under Section 8 (5) of Central Sales Tax Act, 1956, and therefore, taxable at concessional rate of 1% during the period in question ? 2. Whether the 'aluminium foil' is a commodity different from 'aluminium sheets' in commercial and common parlance or whether 'aluminium foil' is also known in common parlance as a thin sheet and hence falls within the expression 'sheets' used in the Notification dated 31. 12. 1975? 3. Whether 'aluminium foils' even after lamination and printing would continue to be covered under said Notification dated 31. 12. 1975 and hence taxable at the concessional rate of 1%? 4. Whether in view of determination made by the Commissioner, Commercial Taxes, under Section 12-A of the Rajasthan Sales Tax Act, 1954, holding that aluminium foils even after lamination and printing remains aluminium foils and would, therefore, attract Central Sales Tax @ 1% under Notification dated 13. 6. 1985, having attained finality, is it open to the Department to agitate that interstate sale of laminated and printed aluminium foils would be taxable as packing material and not as aluminium foil? 5. Whether the Notification dated 13. 6. 1985, prescribing the rate of tax on 'aluminium foil' only clarifies the earlier Notification dated 31. 12. 1975? 6. Whether the functional character/end-use of a commodity is relevant for consideration as to under which entry of the tax schedule the commodity falls for the purpose of levying the tax? 7. Whether the 'aluminium foil' is neither sheet nor packing material, and therefore, would be taxable under residuary entry? 8. Whether Rajasthan Tax Board was right in relying upon the additional evidence produced before it on behalf of the assessee without passing specific order admitting such additional evidence on record, more so, when according to the Department, the copies of the said additional evidence were not made available to them and they were not given opportunity to rebut the same. 9. Whether the Department has waived objection about the consideration of additional evidence produced by the assessee before Rajasthan Tax Board, while deciding appeals No. 8 to 11 of 1995 by judgment dated 8. 2. 1999, by not raising such objection later on, either before the Tax Board or the lower authorities or in Revision Petitions filed before this court against the Judgment dated 8. 2. 1999 or in revisions filed by them against subsequent judgments passed by the Tax Board following the judgment dated 8. 2. 1999? 10. Whether the finding recorded by the learned Tax Board are contrary to law and facts and perverse? Before that, the record from the Tax Board in relation to these revisions were called. It will be useful to narrate facts in relation to the earlier round of litigation leading to the decision of this Court dated 12. 9. 1994 because of the reason that for the question whether the aluminium foil is covered under the notification dated 31. 12. 1975 (S. No. 302) and is taxable at the rate of 1%. The matter came up before this Court and same question is core question in these revision petitions because of reason that second round is due to remand order which was upheld by the High Court. The notification dated 31. 12. 1975 (S. No. 302) is as under :- " S. No. 302 : F. 5 (25) FDCT/72-79 dated 31. 12. 1975 S. O. 243.-In exercise of the powers conferred by S. 8 (5) , CST Act, 1956, the State Govt. hereby directs that with effect on and from 1. 1. 1976, the tax payable under sub-section (1) of the said section by any dealer having his place of business in the State, in respect of the sale by him from any such place of business in the course of inter-State Trade, of the goods specified in column number 2 of the list appended hereto, to which sub-section (1) applies, shall be calculated at the reduced rate shown against it in column number 3 of the said list on furnishing of a declaration in Form "c" or a Certificate in Form "d", as the case may be. S. No. Description of goods Rate of tax 1. Non-ferrous rods, pipes, strips, sections, sheets, circles, and tubings. 1% For this dispute, an application was submitted by the assessee M/s. PG Foils Ltd. under Section 12a of the Rajasthan Sales Tax Act, 1954 (for short 'rst Act, 1954') for obtaining decision from the Additional Commissioner, Commercial Taxes, Rajasthan, Jaipur. The Additional Commissioner vide his order dated 18. 7. 1984 held that the aluminium foils are not covered by the notification dated 31. 12. 1975. Meanwhile, the assessing authority passed separate provisional assessment orders under Section 9 of the RST Act against the assessee for the years from 1982 to 1986 which were challenged by the assessee by preferring appeals before the Deputy Commissioner (Appeals) , Commercial Taxes, Jodhpur. The Deputy Commissioner (Appeals) dismissed the appeals vide orders dated 26. 9. 1988 (one appeal) and 31. 12. 1988 (3 appeals ). The assessee preferred further appeals against both the matters - one arising out of the application under Section 12a and another against the provisional assessment orders passed by the assessing authority which were upheld by the appellate authority. These five appeals were partly allowed by the Rajasthan Sales Tax Tribunal, Ajmer vide order dated 26. 2. 1991 and the matter was remanded to the assessing authority for deciding the issue whether the sheet of specific measurement of thickness is covered under the notification dated 31. 12. 1975 or not, after giving opportunity to both the parties to produce evidence.
(3.) THE assessee being aggrieved by the order of remand passed by the Sales Tax Tribunal dated 26. 2. 1991 preferred revisions before this Court which were decided by this court vide judgment dated 12. 9. 1994. THE relevant portion of the order of this Court in judgment dated 12. 9. 1994 is as under :- " THE word used sheet is not technical in expression or a word of art but the word of everyday use. It is relevant to look as to how the goods is known in the trade and treated in the trade literature, are the relevant and significant and rather decisive factor. If special type of goods is subject matter of a fiscal entry then that entry must be understood in the context of that particular trade, bearing in mind that particular word. THE trade meaning is one which is prevalent in that particular trade where the goods is known or traded. THErefore, in the absence of any definition of the word "sheet", whether it would include all types of foils, depends as it is understood in a common parlance, that is, how the public in general conversant with the subject matter has dealt with it and understood. THE word is being required to be given a popular meaning. In the present case, the Tribunal has observed that no evidence has been led by the parties so as to understand the popular meaning of "sheet" by the persons carrying on business in non-ferrous metal and thus, remanded the matter giving opportunity to the parties to lead evidence on that point. In my considered opinion, the approach of the Tribunal is correct. Whether the foil is included in the commodity mentioned in the notification depends on the facts proved in this case. I do not find any illegality committed by the Tribunal in remanding the matter, where both the parties will have opportunity to lead evidence and establish the fact as to how the commodity "foil" is understood by the persons dealing with the commodity. " At this juncture, it will be relevant to mention here that Section 12a of the RST Act, 1954 provides that if any question arises otherwise than in the proceedings before a Court or under Sections 7a, 7b, 10, 10a, 10b or 12, any person or firm etc. may submit application to the Commissioner, Commercial Taxes for determination of the questions upon which the Commissioner is required to determine such question. It appears from the facts of the case that initially the assessee sought determination of the disputed question about the liability of tax on sale of aluminium foils under Section 12a but subsequently, after the decision of this Court dated 12. 9. 1994, the assessee withdrew this application filed under Section 12a obviously because of the reason that the same question became subject matter before the authorities in regular course and was brought before this High Court by the assessee by filing revisions and the determination of question by the Commissioner, Commercial Taxes would be an exercise in futility. ;