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Allahabad High Court · body

2004 DIGILAW 2498 (ALL)

Commissioner, Trade Tax v. Nayeem Steel Trunk Works

2004-12-13

RAJES KUMAR

body2004
RAJES KUMAR, J. ( 1 ) THESE three revisions under Section 11 of U. P. Trade Tax Act (hereinafter referred to as "act") are directed against the order of Tribunal dated 13. 09. 1995 relating to the assessment years 1986-87, 88-89 and 90-91. ( 2 ) IN all the three revisions, following common question has been raised: "whether on the facts and in the circumstances as stated above the Trade Tax Tribunal was legally justified to hold that trunks made of tin or iron steel are taxable at the rate of 4% and falls under the entry No. 12 of the notification No. 5785 dt. 7-9-81 containers made of tin or iron or steel despite the fact that the notification No. 3557 dt. 31-5-85 it was removed from the entry No. 44 of the Notification No. 5785 dt. 7-9-81 thus becoming an unclassified item, taxable at the rate of 8%. ?" ( 3 ) DISPUTE relates to the taxability of trunk made of iron steel. Tribunal treated it taxable under the entry of "container made of tin, iron or steel (a) 4%". According to the revenue, it is liable to be taxed (2) 8% as an unclassified item. ( 4 ) HEARD learned counsel for the parties. ( 5 ) LEARNED Standing Counsel submitted that in the notification No. 5785 dated 07. 09. 1981 "containers made of tin, iron or steel" is classified at Sl. No. 12 taxable @ 4% at the point of manufacturer or importer and there is one more entry at Sl. No. 44 which classifies "trunk made of tin or iron or steel" taxable @ 6% at the point of manufacture or importer and subsequently vide notification No. 3557 dated 31. 05. 1985 in the entry No. 44 "trunk" has been deleted and, therefore, "trunk" should be taxed as an unclassified item. Learned counsel for the dealer/opposite party (hereinafter referred to as "dealer") relied upon the order of the Tribunal and further submitted that in the case of State of Andhra Pradesh v. Swapna Mahila co-operative Super Bazar, reported in 98 STC, 123, Division Bench of the Andhra Pradesh has held iron trunk as containers. ( 6 ) IN my opinion, argument of learned Standing counsel has no force. Entry No. 12 and 44 of notification No. 5785 dated 07. 09. ( 6 ) IN my opinion, argument of learned Standing counsel has no force. Entry No. 12 and 44 of notification No. 5785 dated 07. 09. 1981 reads as follows: ( 7 ) NOTIFICATION No. No. ST-II-5785/x-10 (1)-80-UP Act XV/48-Order-81 dated 7. 9. 1981 reads as follows: "in exercise of powers under the proviso to Clause (e) of Sub-section (1) of Section 3-A of the u. P. Sales Tax Act, 1948 (U. P. Act No. XV of 1948), read with Section 21 of the U. P. General clauses act, 1904 (U. P. Act No. 1 of 1904), and in supersession of all previous notifications issued under the proviso to Sub-section (2-A) of Section 3-A of the said Act as it stood before its amendment by the U. P. Sales Tax (Amendment and Validation) Ordinance, 1981 (U. P. Ordinance No. 12 of 1981), the Governor is pleased to order that, with effect from September 7, 9181, the turnover in respect of the goods specified in column 2 of the list below shall be liable to tax at the point specified in column 3 at the reduced rate specified against each in column 4 thereof: 12. Containers made of tin, iron or steel. M or i 4% 44. Scissors, nut-crackers (Sarauta), ordinary m or i 6% knives and chhuries, razors (Ustare), ironmade kitchen utensils and appliances, trunks, post Office letter boxes made of tin or iron or steel and hair clipping machine. ( 8 ) NOTIFICATION No. No. ST-II-5785/x-10 (1)-80-UP Act XV/48-Order-81 dated 7. 9. 1981 reads as follows: "in exercise of powers under the proviso to Clause (e) of Sub-section (1) of Section 3-A of the u. P. Sales Tax Act, 1948 (U. P. Act No. XV of 1948), read with Section 21 of the U. P. General clauses act, 1904 (U. P. Act No. 1 of 1904 the Governor is pleased to make, with effect from june 1, 1985, the following amendments in Government Notification No. ST-II-5785/x-10 (1)-80-U. P. Act XV/48-Order-81, dated September 7, 1981, as amended from time to time: amendments in the list to the aforesaid notification: (1) the entries in columns 2, 3 and 4 against Serial No. 46 shall be omitted; and (2) for the existing entries in columns 2, 3 and 4 against Serial Nos. 23, 31, 36, 44 and 48, the following entries shall respectively substituted:23. . . 31. . . 36. . . 23, 31, 36, 44 and 48, the following entries shall respectively substituted:23. . . 31. . . 36. . . 44. Scissors, nut-crackers (Satauta), ordinary knives and chhuries, razors (ustara), kitchen utensils made of iron or tin and hair-clipping machines. ( 9 ) FOR the assessment year notification No. ST-3557 dated 31. 05. 1985 is applicable. For the year under consideration, admittedly, there was no specific entry for the trunk and the entry available was of "containers made of tin, iron or steel. " If the trunk made of tin is covered under the entry of "containers made of tin, iron or steel, in my opinion, it is liable to tax under the said entry. Prior to 31. 05. 1985 it may be argued that since there was specific entry of trunk made of iron or steel, it would be liable under the said entry, instead of under the entry of "containers made of tin, iron or steer but after 31. 03. 1985 entry relating to the trunk has been deleted from the entry at Sl. No. 44 and there was only one entry available of "containers made of tin, iron or steel" ( 10 ) IN the case of State of Andhra Pradesh v. Swapna Mahila Co-operative Super Bazar, reported in 98 STC, 123, iron trunk has been treated as containers. The observations of the Division bench are as follows: "in G. Claridge and Company Limited v. Collector of Central Excise (1991) 52 ELT 341 , the supreme Court considered the meaning of the expression "container" for the purpose of classification under the Central Excise Tariff Act. After referring to the meaning of the said expressions given in Websters New Collegiate Dictionary (1975) and Chambers 20th Century dictionary, the Supreme Court has observed that a "container" is used in three different senses: viz. , (1) in a broad sense, (2) in a narrow sense, and (3) in a more limited sense. In a broad sense, it means a receptacle which contains and in that sense it includes a "tray" because it is a receptacle which contains articles. In the narrow sense, it means receptacle in which articles are covered and enclosed and transported. In a more limited sense, the meaning was given as an enclosure used in shipping or railway for transport of goods. In the narrow sense, it means receptacle in which articles are covered and enclosed and transported. In a more limited sense, the meaning was given as an enclosure used in shipping or railway for transport of goods. Whether the expression is taken in the narrow sense or broad sense, for the purpose of the above entry, having regard to the context in which the expression is used, in our view, it includes iron trunk boxes because articles are placed in it which are covered or enclosed for the purpose of transportation. In this view of the matter, we confirm the order of the Tribunal and dismiss the tax revision cases but without costs. " ( 11 ) RESPECTFULLY following the aforesaid decision, in my opinion, Tribunal has rightly held trunk made of iron liable to tax under the entry of "containers made of tin, iron or steel. " Order of tribunal is accordingly, upheld. ( 12 ) IN the result, all the revisions fail and are accordingly, dismissed. . .