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Shyam Mini Gas Cylinders v. Commissioner, Trade Tax, U.P., Lucknow - SALES/TRADE TAX REVISION No. 1477 of 2004  RD-AH 613 (23 August 2004)
Court no. 55
Trade Tax Revision no. 1477 of 2004.
M/S Shyam Mini Gas Cylinder, Agra .........................Applicant.
Commissioner of Trade Tax U. P. Lucknow......................Revisionist.
Hon'ble Rajes Kumar, J.
The present revision under Section 11 of U. P. Trade Tax Act (hereinafter referred to as Act), is directed against the order of Tribunal date 22.6.2004 relating to the assessment years 1997-98.
Applicant claimed that he was engaged in the business of purchases and sales of empty Gas Cylinder, Hot Plates and Burner. Applicant claimed that empty Gas Cylinder was liable to tax under the entry of "Container made of Tin, Iron or Steel" @ 5% at the point of manufacturer or importer only and Hot Plates and Burner is liable to tax @ 6% as a Kitchen appliances. Assessing Authority had rejected the books of account and estimated the suppressed turnover of imported mini Gas Cylinder, Gas Stove, Petromax and appliances @ 10%. First Appellate Authority rejected the appeal. Applicant filed Second Appeal before the Tribunal, which was allowed in part. Tribunal allowed the appeal in part and estimated the taxable turnover at Rs.5,00,000/-. Tribunal however, confirmed the levy of tax @ 10%.
Heard Counsel for the parties.
Learned Counsel for the applicant submitted that the books of account had been rejected on the basis of seized Purchas found at the time of survey dated 17.10.1997 and also on the basis of stock found worth Rs.1,11,740/-. He submitted that the Tribunal has estimated the turnover at Rs.5,00,000/- on the basis of stock found at Rs.1,11,740/- which the Tribunal has taken as the value of difference in the stock while Rs.1,11,740/- was the value of entire stock found at the time of survey which includes stock as per the books of account. He submitted that the applicant admittedly not maintained stock register, therefore, there was no question of any difference in the stock. He further submitted that perusal of details of goods found at the time of survey which are mentioned in the order of Assessing Authority shows that a stock of Gas Cylinder, Burner, Gas Cylinder, Stove, Gas Cylinder Light and Gas pipe etc. were found, therefore, assessment of turnover of mini Gas Cylinder Stove/Petromax and appliances, is not justified. He submitted that the applicant had sold Gas Cylinder, Burner, Hot Plates separately and also in the form of Stove and Light. Gas Cylinder Stove and Gas Cylinder Light are liable to tax as Stove and Petromax @ 10%, but Gas Cylinder which has been sold separately are liable to tax @ 6% as a "Container made of Tin, Iron or Steel". He submitted that the Gas Cylinder have been held taxable under the entry of "Container made of Tin, Iron and Steel" by this Court in the case of Commissioner of Sales Tax Vs. S/S Bharat Pump and Compressors, Allahabad reported in 1999 UPTC page 1256. He submitted that Andhra Pradesh High Court has also held Gas Cylinder as a Container in the case of State of Andhra Pradesh Vs. Swapna Mahila Co-Operative Super Bazar, reported in 98 STC page 123, in which, Andhra Pradesh High Court has relied upon decision of Apex Court in the case of Claridge & Company Limited Vs. Collector of Central Excise reported in (1991) 52 Excise Law Time page 341. He further submitted that Hot Plates and Burner, have been held as a "Kitchen appliances in the case of Commissioner of Sales Tax Vs. M/S Agra Gas Company, Agra, reported in 1984 UPTC page 489, therefore, they are liable to tax as a Kitchen appliances @ 6%. He submitted that the Tribunal has not examined the Notification properly, rather misread the Notification no. ST-II-5784 dated 7.9.91 and instead of item Gas Lantern, Tribunal read as Gas Cylinder. He submitted that there is no justification to estimate the entire turnover of Gas Cylinder Stove and Petromax. Learned Standing Counsel supported the order of Tribunal.
I have perused the order of Tribunal and the authorities below. So far as rejection of books of account is concerned, I do not find any force in the argument of learned Counsel for the applicant. Books of account had been rejected on the ground that at the time of survey dated 17.10.1997, certain loose Purchas were found and the entries of such loose Purchas were not found entered into the books of account. So far as estimate of turnover is concerned, there is some force in the argument of learned Counsel for the applicant. Applicant had not maintained any stock register, therefore, total value found, can not be treated as difference in the stock. It appears that value of Rs.1,11,740/- is the value of total stock found at the time of survey which includes stock as per the books of account, therefore, estimate of turnover on the basis of alleged difference found in the stock at Rs.1,11,740/- is arbitrary. Tribunal is directed to estimate the turnover afresh keeping in view the material on record.
So far as rate of tax is concerned, the following Notifications are relevant:-
(I) Notification No. ST-II-5784/X-10(1)/80. U.P. Act 15/48 Order 81, Dated September 7, 1981. Entry reads as follows:
32. Gas lantern petromax and Stoves and Parts, accessories and components thereof."
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(II) Notification No. ST-II-5785/X-10(1)/80. U.P. Act XV/48 Order 81, Dated September 7, 1981. Entry reads as follows:
44. Scissors, nut crackers (Sarauta), ordinary knives and chhuries, razors (Ustare), , Iron made kitchen utensils and appliances, trunks, Post Office letter boxes made of tin or iron or steel and hair clipping machine."
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Perusal of order shows that the Tribunal has misread the entry of serial no. 32 and in place of Gas Lantern Tribunal read Gas Cylinder. In the case of Commissioner of Sales Tax Vs. S/S Bharat Pump and Compressors, Allahabad, reported in 1999 UPTC page 1256 this Court held Gas Cylinder as a Container, liable to tax under the entry of ''Container' made of tin, Iron or Steel, therefore, Gas Cylinder can not be taxed under the entry of Gas Lantern, Petromax and Stove @ 10%, and is liable to tax @ 5% under the entry of "Container' made of Tin, Iron or Steel." In the case of Commissioner of Sales Tax Vs. M/S Agra Gas Company, Agra, reported in 1984 UPTC page 489, reported in 1984 UPTC page 489, Hot plates have been treated as Kitchen appliances. Perusal of assessment order shows that at the time of survey, 4 Kg. Gas Cylinder, Hot Plate, Burner and Stove of 4 Kg. Cylinder Light of 4 Kg. etc. were found. The claim of the applicant was that it had sold Gas Cylinder, Hot plates, Burners individually also as well as Stove and Light. This aspect of the matter has not been examined. If the Gas Cylinders have been sold as a Stove and as light, they may be liable to tax as a Stove and Petromax @ 10%, but if the Gas Cylinder is sold separately being a Container, it is liable to tax @ 6% as a Container. Likewise Hot Plate and Burner if sold separately, is also liable to tax as a Kitchen appliances @ 6%. Since neither the Assessing Authority nor the Tribunal considered this aspect of the matter, therefore, the matter is remanded back to the Tribunal to consider the aforesaid aspect of the matter and estimate the turnover accordingly and to apply correct rate of tax applicable to the goods sold.
In the result, revision is allowed. Order of Tribunal dated 22.6.2004 is set aside and the matter is remanded back to the Tribunal to decide the appeal afresh in the light of observations made above, if possible expeditiously.
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