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2010 DIGILAW 397 (GAU)

Steel Stores v. Commissioner of Taxes

2010-06-03

AMITAVA ROY

body2010
JUDGMENT Amitava Roy, J. 1. The determination made by the Deputy Commissioner of Taxes, Guwahati Zone B, Guwahati, by his order dated October 31, 2003 in exercise of powers under Section 36(1) of the Assam General Sales Tax Act, 1993 (for short, hereafter referred to as, "the Act") construing aluminium plain sheets and extrusions marketed by the petitioner-firm to be items produced and fabricated from aluminium metal and thus not covered by entry 45(b) of Schedule II of the enactment is under assailment in this proceeding. A declaration has also been sought to adjudge the above items to be within the purview of the aforementioned entry for their exigibility under the Act for the period January 1, 2000 to February 18, 2002. At the time of issuance of rule on January 13, 2004, the operation of the order impugned as well as the consequential proceedings had been kept in abeyance. 2. I have heard Dr. A. K. Saraf, senior advocate for the petitioners and Mr. R. Dubey, learned standing counsel, Revenue, for the respondents. 3. The unrebutted pleaded case of the petitioner, in absence of any counter by the respondents, is that the petitioner-firm is a registered dealer under the Act and is engaged in the business of marketing aluminium manufactured by one M/s. Hindalco Industries Ltd. It receives plain aluminium sheets and extrusions in metal form and not finished products on stock transfer basis on behalf of the above company and the same are marketed by it without subjecting the same to any further process of fabrication or processing of any kind. The Government of Assam by Gazette Notification dated December 24, 1999 issued in exercise of its power under Section 8(2) of the Act prescribed a uniform rate of tax of eight per cent for aluminium sheets incorporated as entry 10 to Schedule IV thereof. The incidence of such levy on the aluminium sheets spanned over two stages at four per cent each at the first and the last points of sale in the State. According to the petitioners, this measure to introduce a uniformity in the tax structure introduced by the Government of India met with some reservation of the Government of Delhi which imposed tax at four per cent on all types of aluminium sheets. According to the petitioners, this measure to introduce a uniformity in the tax structure introduced by the Government of India met with some reservation of the Government of Delhi which imposed tax at four per cent on all types of aluminium sheets. The petitioners accordingly submitted a representation before the Chief Minister of the State on January 19, 2001 requesting for a similar reduction in the rate of impost highlighting, inter alia, that in view of the higher rate of tax, various departments and public sector undertakings had started importing aluminium from beyond the State at four per cent Central sales tax instead of resorting to local purchases. Similar representations, according to the petitioners, were also made by others with the same request. The gazette notification dated January 27, 2000 by the Government of Assam followed whereby the following amendments were introduced in Schedule II and Schedule IV of the Act. Schedule II 45 (b) Non-ferrous metal and other alloys, viz., aluminium, copper, 4 paise in zinc and lead but not finished goods made therefrom. a rupee. Schedule IV 10. Aluminium corrugated sheets. 8-4-4 4. As entry 45 (b) did not fully elaborate the items covered by the non-ferrous metal referred to therein, representations from dealers in aluminium followed addressed to the Commissioner of Taxes seeking a clarification amongst others as to whether sheets, plates, semis, i.e., billets, etc., but not finished goods made from them were covered by the said expression. Clarification in the same line was also sought for by the Kamrup Chambers of Commerce from the said authority. No response, however, to the queries did occur. The petitioners in this context have referred to a departmental circular dated July 21, 1987 providing an elucidation with reference to "all non-ferrous metals" exigible to tax under the Delhi Sales Tax Act, 1975. It was clarified that metal with reference to Section 14(iv) of the Central Sales Tax Act, 1956, implied substances of many shapes, inter alia, that of a sheet and that of non-ferrous metals in the said shape was also be deemed to be a non-ferrous metal. While the matter rested at that, the petitioners also submitted a representation before the Chief Minister of the State on February 3, 2000 for the reducing rate of tax on aluminium corrugated sheets from eight per cent to four per cent. While the matter rested at that, the petitioners also submitted a representation before the Chief Minister of the State on February 3, 2000 for the reducing rate of tax on aluminium corrugated sheets from eight per cent to four per cent. Vide gazette notification dated February 15, 2002 of the Government of Assam, a further amendment was effected to entry 10 of Schedule IV of the Act as follows : Schedule IV Entry 10 Aluminium corrugated sheets and plain sheets 8-4-4 5. It is the petitioner's plea that having regard to the import of the notifications in succession, aluminium plain sheet was treated to be covered by entry 45 (b) for the period January 1, 2000 to February 18, 2002, i.e., prior to the amendment brought into effect by the notification dated February 15, 2002. Consequently, according to them, aluminium plain sheets were taxable at four paise in a rupee during this period. As a matter of fact, the petitioners were assessed under Section 17(4) at the said rate by the order dated September 15, 2001 of the Senior Superintendent of Taxes, Guwahati, Unit B, Guwahati, for the period ending March 31, 2001 at four per cent in terms of entry 45 (b) of Schedule II. 6. Inspite thereof, they were served with a notice on March 20, 2002 from the Superintendent of Taxes, Zone B, acting under Section 44(1) of the Act directing them to produce the books of accounts relating to their business for the period 2000-01 and 2001-02, which they complied. The impugned notice dated November 7, 2002 from the Deputy Commissioner of Taxes, Guwahati, Zone B, followed, conveying to them that the assessment made by the Senior Superintendent of Taxes, Guwahati, Unit B, was erroneous and prejudicial to the interest of the Revenue as the aluminium plain sheet for the period in question was not covered by entry 45 (b) of Schedule II of the Act. The notice indicated a possibility of the said assessment being set aside in exercise of the power of the said authority under Section 36(1) of the Act and, an opportunity was thus accorded to them in that regard fixing the date and time of hearing in connection therewith. 7. The notice indicated a possibility of the said assessment being set aside in exercise of the power of the said authority under Section 36(1) of the Act and, an opportunity was thus accorded to them in that regard fixing the date and time of hearing in connection therewith. 7. The petitioners responded by their reply dated November 25, 2002 whereby they asserted in substance that the aluminium sheet for the period January 1, 2000 to February 18, 2002 was included in entry 45 (b) of Schedule II in terms of the gazette notification dated January 27, 2000 whereby the same was liable to be taxed at four per cent and that therefore the assessment made did not warrant any interference or review. The revisionary authority, however, in a proceeding drawn up under Section 36(1) of the Act, by the impugned order dated October 31, 2003 held to the contrary and while setting aside the assessment order dated September 15, 2001 under Section 17(4) of the Act directed the assessment officer to complete the assessment for the period 2000-01 afresh by applying the correct rate of tax and to realise the same from the dealer in accordance with law. The said authority was of the view for the reasons recorded therein that for the period in question, on an interpretation of entry 45 (b) to Schedule II of the Act, aluminium in its primary or original form only was envisaged therein and did not include aluminium plain sheet and extrusions, as those were items produced and fabricated from metal aluminium. To put it differently, according to the revisional authority during January 1, 2000 to February 18, 2002, aluminium sheets were covered by the residuary Schedule III of the Act and thus taxable at eight per cent. 8. Dr. Saraf has argued that the entry 45(b) as the language thereof proclaims contemplates metals referred to therein in various forms and not necessarily limited to their intrinsic state. As aluminium sheets and aluminium corrugated sheets had been included in entry 10 of Schedule IV by the amending notification dated February 15, 2002, by necessary implication aluminium plain sheets were comprehended in entry 45 (b) of Schedule II prior thereto, he urged. As aluminium sheets and aluminium corrugated sheets had been included in entry 10 of Schedule IV by the amending notification dated February 15, 2002, by necessary implication aluminium plain sheets were comprehended in entry 45 (b) of Schedule II prior thereto, he urged. According to the learned senior counsel, the fact that no similar amendment vis-a-vis other metals mentioned in entry 45 (b) such as copper, zinc, etc., had been clearly indicates as well that aluminium per se was not intended to be included therewith only in the primary state. Likewise the incorporation of aluminium plain sheets with aluminium corrugated sheets in entry 10 of Schedule IV of the Act by the notification dated February 15, 2002 also did not decisively signify that aluminium plain sheets had never been contemplated to be within entry 45 (b) of Schedule II of the Act to be resultantly covered by the residuary Schedule III during the interregnum, he urged. Dr. Saraf has maintained that only because aluminium corrugated sheets in the wisdom of the Legislature had been subjected to double point taxation, it ipso facto does not imply that all forms of such metal would also be exigible at the same rate. As the petitioners' firm had been validly assessed for aluminium sheets at four per cent by construing the goods to be included within entry 45(b) of Schedule II, the interference therewith in the purported exercise of powers under Section 36 of the Act is not only unwarranted but also sans jurisdiction, he urged. The learned senior counsel assiduously contended that as the assessment made under Section 17(4) of the Act, in the facts and circumstances of the case does neither suffer from any jurisdictional error nor the conditions precedent for the invocation of Section 36 as engrafted therein exist, the impugned order is per se illegal and is thus liable to be adjudged non est in law. The impugned decision has the effect of entrenching upon the domain carved out for the authority envisaged under Section 18(1) of the Act, in a given case as such an intervention would also overreach the bar of limitation otherwise prescribed as an imperative precondition for an action thereunder he contended. The impugned decision has the effect of entrenching upon the domain carved out for the authority envisaged under Section 18(1) of the Act, in a given case as such an intervention would also overreach the bar of limitation otherwise prescribed as an imperative precondition for an action thereunder he contended. As having regard to the progression of events relating to the lodgement of the item in question in the aforementioned entries in the two Schedules of the Act, the invocation of the revisional power in the teeth of an earlier assessment made on a correct determination of the identity of the item and the rate of levy, is wholly unauthorised rendering the impugned decision null and void, he urged. To reinforce his arguments Dr. Saraf has placed reliance on the following decisions. Collector of Central Excise, Bombay-I v. Parle Exports (P.) Ltd. [1989] 75 STC 105 (SC) : [1989] 1 SCC 345, Kalidas Sheet Metal Industries P. Ltd. v. State of Kerala [2008] 13 VST 313 (SC) : [2008] 3 SCC 785, State of Madhya Bharat v. Hiralal Ji [1966] 17 STC 313 (SC) : AIR 1966 SC 1546 , Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh [1981] 48 STC 411 (SC) : [1981] 3 SCC 578, State of Kerala v. K.M. Cheria Abdulla and Company [1965] 16 STC 875 (SC), Rajendra Singh v. Superintendent of Taxes [1990] 79 STC 10 (Gauhati), Santalal Mehendi Ratta (HUF) v. Commissioner of Taxes [2006] 143 STC 511 (Gauhati), Bongaigaon Refinery and Petrochemicals Ltd. v. Union of India [2006] 287 ITR 120 (Gauhati), State of Orissa v. Titaghur Paper Mills Co. Ltd. [1985] 60 STC 213 (SC) : [1985] (Supp) SCC 280. 9. Mr. Dubey has refuted the above contending, inter alia, that aluminium sheets for the period January 1, 2000 to February 18, 2002 are evidently beyond entry 45 (b) of Schedule II of the Act. As there was an apparent error of jurisdiction on the part of the assessing authority under Section 17(4) in assessing the petitioners' tax liability at four per cent the impugned decision is valid and sustainable in law. The decision of the assessing authority being erroneous for which the interest of Revenue has suffered, the revisional authority was perfectly justified and within his jurisdiction to intervene under Section 36, he contended. The decision of the assessing authority being erroneous for which the interest of Revenue has suffered, the revisional authority was perfectly justified and within his jurisdiction to intervene under Section 36, he contended. Referring to entry 45 (b) of Schedule II to the Act as it existed prior to January 1, 2000, the learned standing counsel has urged that the absence of any reference of aluminium as well as the words "not finished goods" patently signify that aluminium sheets were not comprehended therein. This, Mr. Dubey has pleaded is amply testified by inclusion of aluminium sheets in entry 10 to Schedule IV to the Act as it existed before the gazette notification dated December 27, 1999. Mr. Dubey has, therefore, insisted that withdrawal of aluminium sheets from entry 10 of Schedule IV vide the notification dated January 24, 2000 and non-placement thereof in specific terms in entry 45(b) of Schedule II clearly suggested that it was intended to be covered by residuary Schedule III. While asserting that the petitioners have in their pleadings admitted aluminium sheets to be a finished product, the learned standing counsel contended that non-ferrous metal in entry 45(b) connoted the mentioned varieties in their virgin state and not otherwise and as aluminium sheets demonstrably are not so, were beyond the compass thereof. Contending that Sections 18(1) and 36(1) are not mutually exclusive, the learned standing counsel has maintained that the exercise of suo motu power by the revisional authority in the facts of the case was urgently essential. The insertion of aluminium sheets in entry 10 of Schedule IV along with aluminium corrugated sheets vide notification dated February 15, 2002 is a clear index of the legislative intendment that for the intervening period, the same was included in the residuary entry in Schedule III, he insisted. The conditions precedent as inscribed in Section 36(1) of the Act did exist and thus the plea of want of authority or jurisdiction is wholly untenable, he pleaded. He sought to buttress his arguments by relying on the following decisions : Aluminium Corporation of India Ltd. v. Union of India [1975] 2 SCC 472, Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh [1981] 48 STC 411 (SC) : [1981] 3 SCC 578, Commissioner of Central Excise v. Indian Aluminium Co. He sought to buttress his arguments by relying on the following decisions : Aluminium Corporation of India Ltd. v. Union of India [1975] 2 SCC 472, Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh [1981] 48 STC 411 (SC) : [1981] 3 SCC 578, Commissioner of Central Excise v. Indian Aluminium Co. Ltd. [2006] 8 SCC 314, Kalidas Sheet Metal Industries P. Ltd. v. State of Kerala [2008] 13 VST 313 (SC) : [2008] 3 SCC 785, Union of India v. Belgachi Tea Co. Ltd. [2008] 304 ITR 1 (SC) : [2008] 12 SCC 450, G.E. Lightings (India) Ltd. v. State of Assam [2009] 20 VST 361 (Gauhati) : [2007] 3 GLT 916. 10. Dr. Saraf in reply referred to para 2 of the writ petition to controvert the assertion that the petitioners had admitted that aluminium sheets marketed by them are manufactured and/or finished products. 11. I have accorded my anxious consideration to the pleadings and the documents on record as well as the submissions made. Admittedly prior to the notification dated December 24, 1999, entry 45 (b) of Schedule II and entry 10 of Schedule IV read as hereunder : Schedule II 45 (b) Non-ferrous metals, namely 8 paise in rupee. Coating material in the manufacture of corrugated iron sheets. Schedule IV Entry 10 Aluminium sheets 4-2-2 12. As the above extracts would depict, the non-ferrous metals included in entry 45 (b) of Schedule II which apparently did not include aluminium were to be taxed at four paise in the rupee. Aluminium sheets on the other hand in entry 10 of Schedule IV were to be taxed at two per cent each at the first and last points of sale in the State. By the notification dated December 24, 1999 published in the issue dated December 27, 1999 of the Assam Gazette whereas the rate of tax for the articles/goods included in entry 45 (b) of Schedule II was enhanced to 8 paise in the rupee, the same for aluminium sheets in entry 10 of Schedule IV was also raised to eight per cent with four per cent each at the two aforementioned points of sale. As the said notification would reveal the same was to come into force on and from January 1, 2000. 13. As the said notification would reveal the same was to come into force on and from January 1, 2000. 13. The fact that the petitioner-firm amongst others had represented before the State Government for reduction of the rate of tax for aluminium sheets to four per cent citing, inter alia, the trend of the various Departments and the public sector undertakings to import aluminium from outside the State at four per cent Central sales tax is a matter of record and not refuted by the official respondents. The issuance of the notification dated January 27, 2000 with effect from February 1, 2000 bringing about changes in the above-mentioned entries, is of considerable significance in this background. Not only thereby aluminium was incorporated in entry 45 (b) of Schedule II with an obvious modification in the language of the text excluding from the purview thereof "finished goods" made from the non-ferrous metals mentioned therein and the rate of tax was reduced to four paise in the rupee, aluminium sheet was withdrawn from entry 10 of Schedule V and replaced by aluminium corrugated sheets. The rate of levy at eight per cent therefor, however, was retained. In spite of the above, aluminium sheet was not ordained in specific terms a place in any of the two entries in the Schedules above-mentioned. By the notification dated February 15, 2002 to be effective from February 19, 2002, entry 10 of Schedule IV was further modified whereby aluminium plain sheets were added to aluminium corrugated sheets while maintaining the same rate of tax. Aluminium plain sheets were vide the said amendment thus integrated in entry 10 of Schedule IV of the Act. 14. The emerging conundrum pertains to location of aluminium plain sheets during January 1, 2000 to February 18, 2002 for the correct assessment of tax therefore under the Act. Whereas the petitioners in the background of the procession of events contend that aluminium plain sheet during this period was obviously lodged in entry 45 (b) of Schedule II, the Revenue asserts that it was so in entry II of the residuary Schedule III. The key to the poser, therefore, unerringly lies in the discernment of synonymy, if any between aluminium and aluminium plain sheets. The key to the poser, therefore, unerringly lies in the discernment of synonymy, if any between aluminium and aluminium plain sheets. To put it differently if the non-ferrous metal aluminium mentioned in entry 45 (b) of Schedule II of the Act during the interregnum can be construed to be inclusive of aluminium plain sheets not being a finished product, the same would be taxed at four paise per rupee till brought in entry 10 of Schedule IV by the notification dated February 15, 2002 with effect from February 19, 2002. The answer being assuredly contingent on the scheme of the legislation involved, it would be appropriate first to notice the judicial opinion cullable from the authorities cited at the bar. 15. In State of Madhya Bharat v. Hiralal Ji [1966] 17 STC 313 (SC) : AIR 1966 SC 1546 , the question posed before the apex court was whether iron bars, flats and plates were included within "iron and steel" within the meaning of item 39 of the related notification issued by the Government of Madhya Bharat under the enactment involved therein. Rejecting the contention advanced on behalf of the State that "iron and steel" envisaged would only be in the original condition and not in the shape of bars, flats and plates, their Lordships held that so long these continued to be raw materials and were processed only to render them attractive and acceptable, these did not lose their primary character. Bars flats and plates were thus held to be included within "iron and steel". 16. The facts in Aluminium Corporation of India Ltd. [1975] 2 SCC 472, divulged that the appellant therein manufactured aluminium plates, etc., as end-products in its composite factory and with ingots, bars, etc., as intermediate ones. The matter related to a notification under the Central Excise Rules, 1944, which provided a qualified exemption to certain types of aluminium manufactured, for the purpose of excise duty. The relevant notification furnishing the description of goods maintained a clear distinction between aluminium plates, sheets, etc., and aluminium ingots, bars, etc., with varying rates of duty. In the facts of the case, aluminium sheets were held to be finished products. The relevant notification furnishing the description of goods maintained a clear distinction between aluminium plates, sheets, etc., and aluminium ingots, bars, etc., with varying rates of duty. In the facts of the case, aluminium sheets were held to be finished products. This decision per se does not signify that independent of any manufacturing process that may be undertaken in any factory, aluminium sheets whether plain or otherwise would inevitably be a finished product irrespective of scheme of the enactment classifying the goods for the purpose of their exigibility. This decision therefore cannot be construed to be an authority on the proposition that aluminium sheet for all intents and purposes under any circumstance has to be identified as a finished product. 17. In Hindustan Aluminium Corporation Ltd. [1981] 48 STC 411 (SC) : [1981] 3 SCC 578, the initial notification under Section 3A of the Uttar Pradesh Sales Tax Act, 1948, enjoined, inter alia, that all kinds of mineral, ores, metals and alloys except copper, tin, zinc, nickel or alloys thereof would be liable to tax at all points of sale at 3 1/2 per cent. By a later notification under the same enactment, this notification stood modified prescribing a lower rate of tax of two per cent for the above goods. The subsequent notification was thereafter amended by a State legislation whereby sheets and circles used in manufacture of brassware and scrapes were included in the aforementioned goods. In response to a representation made by the appellant that aluminium ingots, billets, rolled products, extrusions, etc., manufactured by it were covered by the first notification prescribing the rate of taxability as 3 1/2, the concerned revenue authority was of the view that aluminium ingot should only be taxed as metal under the said notification but rods, bars and rolled products, extrusions at seven per cent as unclassified items. Later, in view of the impugned notification aluminium ingots were assessed for tax at the rate of two per cent while the rest of the products as above were charged at seven per cent. The appellant having unsuccessfully contended before the jurisdictional High Court that rolled products including plates, coils sheets, etc., also were within the purview of metals and alloys to avail of the lower rate of levy, the issue was taken to the apex court. The appellant having unsuccessfully contended before the jurisdictional High Court that rolled products including plates, coils sheets, etc., also were within the purview of metals and alloys to avail of the lower rate of levy, the issue was taken to the apex court. Their Lordships while recalling that a word describing a commodity in a sales tax statute should be interpreted, according to its, popular sense and not in its scientific or technical connotation observed that the expression seeking elucidation was to be construed with reference to the arrangement to the entries in the notifications so much so that the intent of the authors thereof would be derived from the contextual scheme. Their Lordships, on a consideration of the framework of the basic notification noticed that whereas one clause thereof envisaged metals, the other included amongst others scrapes, sheets, circles meant for making brassware, etc., and concluded that an apparent distinction between metal involved in its original saleable form and its fabricated forms as a new commodity had been consciously maintained by the framers of the notification. It was determined in this premise that aluminium rolled products and extrusions were commercial items distinguishable from aluminium ingots and billets as contemplated in the notifications. 18. Not only the materials on record in the case in hand do not disclose any manufacturing process yielding aluminium plates from the primary metal and accepted in the commercial world as a finished product, the dichotomy discernible in the notifications in the decided case was the decisive factor therein. This decision being contingent on the foundational facts does not clinch the issue in favour of the Revenue. 19. While proceeding to describe the characteristic features of timber and logs, the apex court in State of Orissa v. Titaghur Paper Mills Co. Ltd. [1985] 60 STC 213 : [1985] (Supp) SCC 280, after an exhaustive survey of various judicial pronouncements as well as on elaborate allusion to the dictionary meanings of these two words enounced that logs were nothing more than wood cut up or sawn and thus would be timber. In arriving at this conclusion their Lordships observed that in any endeavour to discover the meaning of a term not otherwise statutorily defined or judicially interpreted, aid of the dictionary and common parlance use ought to be resorted to. In arriving at this conclusion their Lordships observed that in any endeavour to discover the meaning of a term not otherwise statutorily defined or judicially interpreted, aid of the dictionary and common parlance use ought to be resorted to. It was reiterated that where the question is whether a certain process has resulted in a manufacture, the resultant product must be a different commercial commodity and merely because certain articles are known by different names, it would not mean that they are different commercial products, if in fact they are merely different forms of the same commodity. 20. In Collector of Central Excise, Bombay-I v. Park Exports (P.) Ltd. [1989] 75 STC 105 (SC) : [1989] 1 SCC 345, involving an interpretation of an exemption notification under the Central Excise Rules, 1944, their Lordships reiterated that when two views are possible the one in favour of the subject ought to be adopted. It was held that an exemption clause ought to be interpreted liberally provided no violence is done to the language employed. 21. The pleaded facts in Commissioner of Central Excise v. Indian Aluminium Co. Ltd. [2006] 8 SCC 314, disclosed that the respondent therein manufactured aluminium sheets, the raw materials whereof was aluminium oxide. In the process of discerning the impost on aluminium dross, their Lordships reiterated that every change of an article may be the result of some treatment, labour and manipulation but manufacture would imply a transformation so much so that a new and different article emerges having a distinct name, character or use. This decision understandably has been introduced by the Revenue to underline that aluminium sheets is a finished product. The decision, however, does not in authoritative terms declare it to be so in the generic sense. 22. In challenge in Kalidas Sheet Metal Industries P. Ltd. [2008] 13 VST 313 (SC) : [2008] 3 SCC 785, was the finding of the jurisdictional Tribunal and that copper sheets and brass sheets in which the appellant dealt fell within the ambit of entries 116A and 116D which prescribed tax at eight per cent on the total turnover of copper and brass, respectively. The appellants' contention that copper sheets and brass sheets are distinguishable from copper and brass and are taxable at five per cent as unclassified items was rejected. The appellants' contention that copper sheets and brass sheets are distinguishable from copper and brass and are taxable at five per cent as unclassified items was rejected. The relevant entries in Schedule I of the Kerala General Sales Tax Act, 1963, being of formidable relevance deserve to be quoted: Non-ferrous metals 116A. Copper At the point of first sale in the State by a dealer 8 who is liable to tax under Section 5. 8 116D. Brass -do- 23. Their Lordships noticed that copper and brass are metals and that admittedly these are produced in rolling mills in the form of sheets, circles, ingots, stripes or rods and that copper and brass in solid form are also available in the market in one of the above forms only. Their Lordships while maintaining the determination distinguished the rendering in Hindustan Aluminium Corporation Ltd. [1981] 48 STC 411 (SC) : [1981] 3 SCC 578, observing that the notifications involved therein clearly indicated that the expression "metal" was used to connote it in its primary sense and that its subsequent forms as distinguished marketable commodities were regarded as new commercial goods. 24. The apex court in Hawkins Cookers Limited v. State of Kerala [2008] 14 VST 375 : [2008] 12 SCC 447, distinguished satilon coated cookware from aluminium house hold utensils for determining the correct classification thereof for the purpose of assessment under the Kerala General Sales Tax Act, 1963. This decision as well is of not much relevance vis-a-vis the issue seeking adjudication. 25. The deductible preponderant judicial comprehension as is pellucid from the pronouncements in State of Madhya Bharat v. Hiralal Ji [1966] 17 STC 313 : AIR 1966 SC 1546 (quorum of three honourable judges) and Kalidas Sheet Metal Industries P. Ltd. [2008] 13 VST 313 (SC) : [2008] 3 SCC 785 is that if a raw material/metal is marketed after according to it an attractive shape and form retaining its inherent features and is not regarded as an independent commercial product totally transformed from the virgin state through a process of manufacture, it would not be construed to be a finished commodity. Mere change in the form and shape of a metal in a primary state without undergoing a metamorphosis shedding the unique features thereof would not render the resultant yield a finished product. Mere change in the form and shape of a metal in a primary state without undergoing a metamorphosis shedding the unique features thereof would not render the resultant yield a finished product. Unless a particular form of a primary metal has been statutorily defined for its identification amongst others for ascertaining its exigibility and the rate therefor, common parlance test and dictionary definition would be safe guides. Two views, if possible, one in favour of the assessee ought to be adopted unless a visible violence to the language ensues. 26. To reiterate, prior to the issuance of the notification dated January 27, 2000, aluminium sheets were entered in entry 10 of Schedule IV of the Act. Entry 45 (b) in Schedule II did not mention aluminium therein. It was only by the notification dated January 27, 2000 with effect from February 1, 2000 that aluminium was incorporated in entry 45 (b) as one of the non-ferrous metals and their alloys as referred to therein excluding, however, the finished goods made therefrom. Significantly aluminium sheets were withdrawn from entry 10 of Schedule IV and were substituted by aluminium corrugated sheets. No specific entry for aluminium sheets was provided. Whereas entry 45 (b) under Schedule II remained the same, aluminium plain sheets were added to aluminium corrugated sheets in entry 10 of Schedule IV vide the notification dated February 15, 2002 with effect from February 19, 2002. 27. The statutory intendment of the precise location of aluminium sheets during the legislative hiatus for the purpose of levy under the Act is to be essentially disinterred from the scheme thereof and the purport of the amendments caused during the relevant time. Accommodation of any taxable commodity as a residuary item for impost under an enactment is neither a matter of routine nor an act of inferential indulgence but is an inevitable consequence impelled by the legislative layout and textual imperatives. Such a course is permissible only if determined to be indispensible, the item or commodity being unamenable to any other precise classification. 28. The withdrawal of aluminium sheets from entry 10 in Schedule IV and assimilation of aluminium in entry 45 (b) in Schedule II by the notification dated January 27, 2000 proclaims a conscious step of the lawmakers to strike a distinction between aluminium plain sheets and aluminium corrugated sheets. 28. The withdrawal of aluminium sheets from entry 10 in Schedule IV and assimilation of aluminium in entry 45 (b) in Schedule II by the notification dated January 27, 2000 proclaims a conscious step of the lawmakers to strike a distinction between aluminium plain sheets and aluminium corrugated sheets. It cannot be gainsaid that aluminium corrugated sheets and aluminium plain sheets though varying in species are traceable to the same genus aluminium. Noticeably no specific entry was sanctioned for aluminium plain sheets by the notification dated January 27, 2000, though aluminium was added to entry 45 (b). As aluminium plain sheets were exigible at eight per cent prior to January 27, 2000, the same could have been retained with aluminium corrugated sheets in entry 10 of Schedule IV carrying the same rate of tax by the notification dated January 27, 2000. Further if aluminium sheet was construed to be located in the residuary Schedule III for all intents and purposes, there was no necessity of incorporating it in clear terms along with aluminium corrugated sheets in entry 10 of Schedule IV by the notification dated February 15, 2002. Deficiency in legislation in non-allocation of an exact entry to the aluminium plain sheets resulting in loss of revenue as the plausible reason for the notification dated February 15, 2002 cannot thus readily be inferred. Selecting a specie of a commodity for taxation at a particular rate at some point of time would not necessarily lead to the irresistible conclusion that it was suggestive of the denudation of all the characteristic attributes of its primary state. 29. Having regard to the successive notifications prescribing the situs of aluminium plain sheets and in absence of any overwhelming evidence that the same on the basis of the inputs available can be decisively held to be a finished product emanating from the primary metal aluminium, this Court is of the view that for the intervening period February 1, 2000 to February 18, 2002 it ought to be regarded as included in entry 45(b) of Schedule II and taxable at four per cent. The finding of the learned revisional authority to the contrary is unsustainable in law and on facts and is thus adjudged as such. 30. The finding of the learned revisional authority to the contrary is unsustainable in law and on facts and is thus adjudged as such. 30. The decisions cited at the bar bearing on the scope and ambit of Section 36(1) of the Act accentuate the conditions precedent for the invocation thereof to be (i) erroneous order of lower authority vitiated by jurisdictional infirmities and (ii) resultant prejudice to the interest of the revenue. In the face of the determination that aluminium plain sheets during the period in question were installed in entry 45(b) of Schedule II of the Act and encompassed in "aluminium", the intervention of the revisional authority, when judged by the parameters judicially recognised as peremptory pre-requisites therefore cannot be upheld. The authorities cited are so obviously consistent on the view as noticed hereinabove that no dilation based on individual facts is warranted. 31. In the result the petition is allowed. The impugned notice dated November 7, 2002 and the order dated October 23, 2003/October 31, 2003 of the Deputy Commissioner of Taxes, Guwahati, Zone B, are quashed. The parties are left to bear their own costs.