High Court of Judicature at Allahabad
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The Commissioner Trade Tax,U.P. v. S/S Infant Milk Food Factory - SALES/TRADE TAX REVISION No. 677 of 1999  RD-AH 18923 (8 November 2006)
TRADE TAX REVISION NO.677 of 1999
The Commissioner, Trade Tax, U.P. Lucknow. Applicant
S/S Infant Milk Food Factory, Moradabad. Opp.Party.
Hon'ble Rajes Kumar, J.
Heard learned counsel for the parties.
The only dispute involved in the present revision relates to the rate of tax on coal ash. Assessing authority held that the coal ash is not a coal and liable to tax as an unclassified item. First appellate authority held that it is not capable to use as coal for burning purposes. Tribunal by the impugned order held that it is capable to use for burning purposes and contains the burning capacity, therefore it is held liable to tax at the rate of 4 percent.
Learned Standing Counsel submitted that the finding recorded by the Tribunal is based on no material. He submitted that this Court in the case of Commissioner of Sales Tax Versus S/S British India Corporation Ltd., Kanpur reported in 2004 UPTC 898 has considered the matter and relying on the decision of this Court in Sales Tax Revision No. 1537 of 1992 Commissioner of Sales Tax Versus Modi Spinning and Weaving Mills decided on 21st May, 2004, held that Coal ash is not a coal.
Learned counsel for the dealer submitted that in the present case, Tribunal recorded the finding that coal ash is capable for use of burning purposes as it contains the burning capacity and, therefore, it had treated as coal is finding of fact.
Having heard the learned counsel for the parties, I have perused the order of the Tribunal and the authorities below.
Finding of the Tribunal that the Coal ash is capable to use for burning purposes and contains the burning capacity is based on no material. Tribunal has not considered the finding recorded by the first appellate authority in this regard. This Court in the case of Commissioner of Sales Tax Versus S/S British India Corporation Ltd., Kanpur (supra) held that the coal ash is not a coal.
Respectfully, following the aforesaid decision the view of the Tribunal is held to be erroneous and it is held that the coal ash is not liable to tax as coal.
In the result, revision is allowed. The order of the Tribunal is set aside and the Tribunal is directed to pass appropriate orders under section 11 (8) of the U.P. Trade Tax Act.
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