COMMISSIONER OF SALES TAX, MADHYA PRADESH v. MAHESH RAM DEVANGAN AND BROTHERS
2010-07-26
I.M.QUDDUSI, N.K.AGRAWAL
body2010
DigiLaw.ai
JUDGMENT I.M. Quddusi, J. The following similar question of law has been raised in S.T.R. Nos. 52 and 54. "Whether, in the facts and circumstances of the case, the Tribunal was justified in holding that the entry tax was not leviable on the plant and machinery including dumpers, trucks and dozers, etc., as they are not incidental goods ?" Similar question has been raised in S.T.R. No. 155 of 1998 regarding imposition of tax on purchase of air-conditioner and car. Since the questions involved in all the references are one and the same, they are being disposed of by this common judgment. The assessees are dealers in mining operations that is for extracting and raising of coal. The tax assessing officer levied the entry tax under the M.P. Entry Tax Act, 1976 on plant and machinery including dumpers, tippers and dozers, etc., and other goods like cars and air-conditioners. Before proceeding further it is necessary to peruse section 3 of the C.G. Entry Tax Act, which is quoted below : "3. Incidence of taxation. - (1) There shall be levied an entry tax, - (a) on the entry in the course of business of a dealer of goods specified in Schedule II, into each local area for consumption, use or sale therein; and (b) on the entry in the course of business of a dealer of goods specified in Schedule III, into each local area for consumption or use of such goods as raw material or incidental goods or as packing material or in the execution of works contract but not for sale therein, and such tax shall be paid by every dealer liable to tax under the Vanijyik Kar Adhiniyam, who has effected entry of such goods :" At the relevant time, the definition of "incidental goods" was given in sub-section (bb) of section 2 as under : "'Incidental goods' means goods other than raw material and packing material for use by a dealer in the manufacture or processing of goods or in mining or in the generation or distribution of electricity or any other form of power." The words "raw material" has been clarified by the honourable Supreme Court in the case of Collector of Central Excise, New Delhi v. Ballarpur Industries Ltd. [1990] 77 STC 282; AIR 1990 SC 196 .
However, the Legislature intended to subject the goods, which are incidental in nature, to entry tax under the Act. In other words, all goods are not so subjected to entry tax. The goods must be incidental to the main goods. Plant and machinery are the goods employed for manufacture of the commodity and not used in the manufacture of commodity are the incidental goods. Therefore, the goods such as plant and machinery employed for manufacture are the main goods which are not incidental in nature. In case of Commissioner of Sales Tax, M.P. v. Vippy Solvex Products Pvt. Ltd. [1997] 105 STC 394; 23 CTJ 301; [1996] 29 VKN 516, the Division Bench of the M.P. High Court had held that plant and machinery are the goods employed "for the manufacture" and not used "in the manufacture" of goods and cannot be classified as "incidental goods". In paras 16 and 17 it has been held as under : "16. In our view, real meaning is not far to seek. For exigibility, it is required to be shown whether the goods, excepting raw material and packing material, were brought in the local area for use by the dealer 'for' the manufacture or 'for' mining or 'for' the generation or distribution ? The key to open the lock and unknot the problem is the meaningful use of the word 'in' at all the places in the definition rather than 'for' before the words 'the manufacture' or 'mining' or 'the generation or distribution'. By use of the word 'in' and omission of the word 'for', the Legislature in its wisdom desired to emphasise that incidental goods, exposed to entry tax, would cover only those goods capable of being used 'in' the specified activities and not 'for' such activities. In other words, goods used for such activities are immune from imposition of tax whereas goods used in such activities are exigible as incidental goods. Same is the position as regards processing. 17. The dictionary meaning of the word 'in' is within, inside of, during, by, through, by means of and of the word 'for' is in support of, because of, as regards, concerning, etc. Likewise, the dictionary meaning of the word 'incidence' is event, extent, range, etc., and of the word 'incidental' is accidental, casual, unimportant. This makes it clear that casual, not usual, and unimportant, not important, goods are taxable, others are not.
Likewise, the dictionary meaning of the word 'incidence' is event, extent, range, etc., and of the word 'incidental' is accidental, casual, unimportant. This makes it clear that casual, not usual, and unimportant, not important, goods are taxable, others are not. This is the inbred answer to the question like 'to tax or not to tax' with which we began this order as prolegomenon." It is pertinent to note that the special leave petition filed against the said judgment before the apex court was dismissed. In view of what has been stated above, we feel that dumpers, dozer and trucks are necessary "for" (that is "in support of" the plant and machinery) carrying out mining operations in the local area without which the mining operation cannot be said to be complete and therefore, they cannot be termed as incidental goods. However, the air-conditioner and the motor car can be termed as incidental and are liable to entry tax. In the result, the substantial question of law are answered accordingly.