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2016 DIGILAW 19 (GAU)

Ozone Pharmaceuticals Ltd. v. State of Assam

2016-01-08

M.R.PATHAK, T.VAIPHEI

body2016
JUDGMENT : T. Vaiphei, J. Heard Mr. Ashok Saraf, learned Senior Counsel assisted by Mr. A. Goyal, learned counsel for the petitioner. Also heard Mr. M. Nath, learned Standing Counsel Finance & Taxation Department appearing for the State respondent Nos. 1 to 3. 2. The petitioner company, namely, Ozone Pharmaceuticals Limited, a Limited Company under the Company Act, 1956 having its registered office at New Delhi and a Drug License holder issued by the Drugs Controller of India under the Drugs and Cosmetics Act, 1940 is involved in manufacturing of medicines. It has set up its Industrial unit at EPIP Complex, Amingaon, Guwahati-31 in the district of Kamrup (Rural) and for the said purpose the petitioner company imports raw materials and other ancillaries including eligible and permissible chemicals and other ingredients like flavor, essence, maize starch, packing materials like corrugated box, caps, bottles etc. from the places outside the State of Assam for use in manufacture of medicine and for its sale, in the course of Intra-State as well as in the course of Inter-State Trade or commerce in the course of their said business. 3. As endorsed by the petitioner company during the year 2005-06 the petitioner Company imported 112 items of raw materials from outside the State amounting to Rs. 8,42,12,433/- and further incurred transportation charges of Rs. 25,00,486/- to bring those raw materials into its industrial unit. But the petitioner company while endorsing the said value excluded the inward freight, transit insurance etc. 4. To levy entry tax on import of specified goods imported in to the local area of the State of Assam from outside the local area including outside that of the State of Assam for consumption, use and sale therein, the State Government enacted the Assam Entry Tax Act, 2008 and the schedule attach to the said 2008 Acts includes a list of the specified goods for import of which from outside the State of Assam and the importers of such enlisted goods are required to pay entry tax in those items. 5. It is submitted that the petitioner Company paid entry tax to the Govt. of Assam on the enlisted imported items as required under the said 2008 Act. 6. 5. It is submitted that the petitioner Company paid entry tax to the Govt. of Assam on the enlisted imported items as required under the said 2008 Act. 6. It is alleged that in spite of paying such tax on the imported items noted above, the respondent No.3, the Assistant Commissioner, Taxes, Guwahati, Unit-C vide its notice No. CTVA-4/2009/13 dated 25.03.2011 issued a show cause notice to the petitioner company under the subject-'Best Judgment Assessment' with imposition of penalty for 2005-06 under the Assam Entry Tax Act, 2008', which is re-produced as below : "Government of Assam Office of The Commissioner of Taxes: Assam: Guwahati No. CTVA-4/2009/13 dated Dispur the 25th March, 2011 To M/s. Ozone Pharmaceuticals Ltd. EPIP, Amingaon, Guwahati. Sub. Best judgment assessment with imposition of penalty for 2005-2006 under the Assam Entry Tax Act, 2008. Whereas as per Annual Return and Audit Report in Form-47 & 48 of the Assam Value Added Tax Act, 2003, during the year 2005-2006, your imported chemicals to the tune of Rs.8,42,12,433/- from outside the State of Assam and used such chemicals as raw materials in manufacturing of medicines. Whereas chemical is taxable @ 2% under the Assam Entry Tax Act, 2008 as per entry No. 51 of the Schedule appended to the Act. Whereas in spite of liability under the Assam Entry Tax Act, 2008 you have failed to submit return and pay tax @ 2% on the import of chemicals against Rs. 4,42,12,433/-. Whereas on failure to pay tax, you have made yourself liable to pay penalty u/S. 37(2) of the Assam Value Added Tax Act read with Section 8 of the Assam Entry Tax Act, 2001. Therefore, you are now hereby asked to show cause in writing by appearing before the undersigned on 30/03/2011 at 11.00 A.M. as to why assessment shall not be made to the best of my judgment u/S. 37 of the Assam Value Added Tax Act, 2003 read with Section 8 of the Assam Entry Tax Act, 2008 with imposition of penalty equal to 25% of the Tax. Sd/- Illegible (K. Lahary) Assistant Commissioner of Taxes Central VAT Audit Team Attached to the Office of the Commissioner of Taxes, Assam Dispur, Guwahati-6" 7. Sd/- Illegible (K. Lahary) Assistant Commissioner of Taxes Central VAT Audit Team Attached to the Office of the Commissioner of Taxes, Assam Dispur, Guwahati-6" 7. On 31.03.2011 the said respondent No. 3 under the provisions of the Section 8 of the Assam Entry Tax Act and Section 37 of the Assam Value Added Tax Act passed an assessment order against the petitioner's company for the period of 2005-06 on aggregate amount of import value of Rs. 8,67,12,919/- levying tax on the import value of raw materials amounting to Rs. 8,42,12,433/- treating the same to be chemicals falling under Entry No. 51 of the Schedule attached to Assam Entry Tax Act, 2008 and also determined freight element amounting to Rs. 25,00,486/-. The said assessment order dated 31.03.2011 also reveals that the case of the dealer, i.e. the petitioner company was selected for assessment under Section 36 of the Assam Value Added Tax Act read with Rule 22 of the Assam Value Added Tax Rules, 2005 read with Section 8 of the Assam Entry Tax Act, 2008 read with Rule 6 of the Assam Entry Tax Rules, 2008 and in spite of time & opportunity given to the said dealer, it failed to comply with the terms of the notice and as such having no other alternative, the Assistant Commissioner of Taxes, the respondent No.3 completed the assessment to the best of his judgment under Section 37 of the Assam Value Added Tax Act, 2003 read with Section 8 of the Assam Entry Tax Act, 2008. The said assessment also reveals that under the principles of natural justice, an opportunity of hearing was given to the said dealer i.e. the petitioner company, by issuing show cause notice dated 25.03.2011. In spite of that the petitioner company failed to give any reason in its defence against the said show cause notice but submitted a petition on 30.03.2011 seeking 15 days more time, which was rejected. 8. Being aggrieved with the said assessment order dated 31.03.2011; the Petitioner Company through its authorised representative submitted a revision petition before the Commissioner of Taxes, read with Section 8 of the Assam Entry Tax Act, 2008 with the following issues : (i) Import value was determined arbitrarily without any materials on record. (ii) Statutory notice in Form 21 as prescribed under Rule 23 of the Assam Value Added Tax Rules, 2005 was not served upon the revisionist. (ii) Statutory notice in Form 21 as prescribed under Rule 23 of the Assam Value Added Tax Rules, 2005 was not served upon the revisionist. (iii) The revisionist was denied the Principle of Natural Justice and (iv) While levying Entry Tax, tax was levied irrespective of schedule of specified goods embodied under Sec 2(j)(c) of the Assam Entry Tax Act, 2008. 9. Section 2(f) of the Assam Entry Tax Act, 2008 defines the "Import Value" as the value of goods specified in the Schedule as ascertained from the original invoice and includes the charges paid or payable for insurance, excise duty, freight charges and all others charges incidentally levied on the purchase of such goods. 10. As per the Assessment Proceedings of the Assessing Officer, i.e. the Assistant Commissioner of Taxes, Central Vat Audit, Assam and the Certificate of Audit & Audit Report in Form 47 & 48; it is found that the petitioner company neither submitted return in Form ET-4 & ET-5 for the year 2005-06 nor paid entry Tax for the said year, in spite of having liability to pay such tax under the Assam Entry Tax Act, 2001, that was declared unconstitutional on 17.11.2006 only, whereas the assessment year was up to 31.03.2006. 11. The revisional authority, i.e. the Joint Commissioner of Taxes, Assam vide order dated 26.06.2013 passed under Memo No. CVAT-1/2011/(39) while disposing of the revision petition of the petitioner Company under Section 82 of the Assam Value Added Tax Act, 2003, against the assessment order dated 31.03.2011 passed by the Assessing Officer, found that the notice issued vide CTVA-4/2009/13 dated 25.03.2011 was elaborately described, whereas Form 21 does not have such point to describe elaborately. The revisional Court also found that the said notice under Section 37 was the consequence of non-compliance of the notice issued in Form 20 as prescribed under Rule 22 of the Assam Value Added Tax Rule 2005 and that except the four goods mentioned in the Statement of imported goods by the petitioner company (Serial Nos. 49, 68, 91, 98) all are chemicals and is taxable @ 2% as per entry at Sl. No. 51 of the Schedule of the specified goods w.e.f. 28.02.2005 as per Govt. Notification No. FTX. 146/2006/121 dated 28.02.2005. 49, 68, 91, 98) all are chemicals and is taxable @ 2% as per entry at Sl. No. 51 of the Schedule of the specified goods w.e.f. 28.02.2005 as per Govt. Notification No. FTX. 146/2006/121 dated 28.02.2005. The revisional Court vide order dated 26.06.2013 came to the conclusion that the Assessment order dated 31.03.2011 passed by the Assistant Commissioner of Taxes Central VAT Audit Cell, Assam is in conformity with the provision of the Assam Entry Tax Act 2001/2008 and accordingly directed the Assessing Officer to reduce the total import value by deducting there from the value of maize starch amounting to Rs. 3,22,972/-, rose essence for Rs. 19,285/-, talcum for Rs. 7,311/- and gelatin for Rs. 8,106/- and inward freight for an amount of Rs. 17,478/- from the determined import value of Rs. 8,67,12,919.00/- and to draw a fresh assessment in view of the observations made in the said order. 12. Against the said order of Joint Commissioner, Taxes, Assam, the revisional authority dated 26.06.2013, the petitioner company preferred an appeal before the Assam Board of Revenue (ABR, in short) being Case No. 85 STA/2013 with the following grounds : (a) Section 37 of the AVAT Act, 2008 lays a pre-condition that notice should be issued in Form 21 to give the Assessee a reasonable opportunity of being heard and the notice issued by the assessing authority being self designed, is not per prescribed format in Form 21. (b) Reasonable opportunity was not given to the petitioner company-appellant to respond as the notice was issued on 25.03.2011 directing to appear on 30.03.2011 within a span of three working days. (c) The entry in the Scheduled of the Assam Entry Tax Act, 2008 has the word 'chemical'. The Assessing Authority excluded four items brought by the petitioner Company out of 112 items to be falling not within the definition of chemical and assessed the remaining the 108 items and contended that these 108 items having specific names and cannot be included under the general heading 'chemicals'. 13. The Assessing Authority excluded four items brought by the petitioner Company out of 112 items to be falling not within the definition of chemical and assessed the remaining the 108 items and contended that these 108 items having specific names and cannot be included under the general heading 'chemicals'. 13. The appellate authority i.e. the ABR found that the Assessing Officer issued a very elaborate notice to the petitioner company on 25.03.2011 containing more information in comparison to the prescribed Form 21 and as such came to the finding that the notice that contains all the facts which are necessary to understand what is being questioned, cannot be said to have violated the law just on the ground that the notice that was issued to the petitioner company did not adhere to the laid down format. But the ABR found that the Assessing Officer granted only three working days to the petitioner company to reply to the said notice dated 25.03.2011 directing it to appear 30.03.2011 and rejected the prayer of the appellant petitioner company for fifteen days more time to respond the said notice. The said appellate authority also observed that the notice to show cause is given not only to fulfil a mere technicality but to enable the assessee to present his case with proper details and to defend the same. 14. In view of the above, the appellate authority i.e. the ABR by its judgment dated 26.06.2014, without going into the merit of the case against the said order of the revisional authority, dated 26.06.2013 came to the conclusion that the Assessing Officer did not adhere to the basic tenets of the provisions of the natural justice enabling the assessee to present his case to defend him properly. Accordingly, the ABR allowed the appeal preferred by the petitioner company and remanded back the matter to the Assessing Officer to pass a fresh order, by giving a reasonable opportunity to the assessee to present his case, with the observation that the entire exercise shall be done expeditiously and in any case within two months time. 15. Thereafter, pursuant to the two notices bearing Nos. 15. Thereafter, pursuant to the two notices bearing Nos. 1714 dated 20.11.2014 and No. 675 dated 11.06.2015 of the Assessing Officer, with regard to the re-assessment under the Assam Entry Tax Act for the year 2005-06, the petitioner company on 21.06.2015 submitted its written reply before the Assessing Officer for the said purpose, with a detail list of 112 items/raw materials that it made inter-state purchase during 2005-06 including the classification of the items purchased, its quantity, the unit and also the amount of those enlisted items along with its remarks against each of those said 112 items. The petitioner company submitted that those 108 items are not chemicals and the Revisional Authority in its order dated 26.06.2013 did not make any enquiry and produced any evidence that those items fall under the specified category of chemicals as specified in the Assam Entry Tax Act, 2008 and that the said goods are not taxable as per the provision of the said 2008 Act. The petitioner company contended that as per Section 3 of the Assam Entry Tax Act, 2008, entry tax can be levied on the entry of specified goods and the term specified goods as defined under Section 2(j) means - 'goods specified in the Scheduled of the said Act'. Sl. No. 51 of the scheduled appended to the said 2008 Act contains chemicals and submitted that the said specified goods/chemicals must be construed properly and if a wide meaning of the said term is given the entry of such chemical will not mean any specified goods. According to the petitioner company only 12 items out of 112 items for the total value of Rs. 11,35,075/- falls under the scope of chemicals and as such the entry tax could have been levied only on the said amount of Rs. 11,35,075/- and on the amount of freight and the insurance on them and accordingly prayed before the assessing authority to make a fresh assessment by considering only those items which are actually classifiable as chemical. By the said representation dated 21.06.2015 the petitioner company also requested the assessing authority to inform them for any documents/information to place on records for classification of the items in question in the manner otherwise then as claimed by it to rebut the same before any adverse order is passed. 16. By the said representation dated 21.06.2015 the petitioner company also requested the assessing authority to inform them for any documents/information to place on records for classification of the items in question in the manner otherwise then as claimed by it to rebut the same before any adverse order is passed. 16. The Assessing Officer i.e. the Assistant Commissioner of Taxes, Guwahati, Unit-C the respondent No. 3, in terms of the judgment and order dated 26.06.2014 passed by the learned Assam Board of Revenue in case No. 85 STA/2013, noted above, passed fresh assessment order dated 28.08.2015 with regard to the petitioner company for the assessment year 2005-06 under the Assam Entry Tax Rules determined total value of goods imported at Rs.8,63,37,767/- and tax @2% assessed at Rs. 17,26,755/- and also assessed the interest @ Rs 9,56,996/- w.e.f. 28.02.2011 and total sum due of Rs.22,50,151/-. Being aggrieved with said re-assessment order dated 28.03.2015 of the concerned assessing officer preferred this petition on the ground that such determination of Assessing Officer was purely mechanical without discharging the burden cast upon him to prove that the said items were classifiable under Entry 51 of the Schedule attached to Assam Entry Tax Act, 2008. The petitioner reiterated that the bulk raw materials that the petitioner company made inter-State purchase during the year 2005-06 were mainly drugs which were to be used in the manufacture of medicines and some of them were vitamins and the Assessing Officer without considering the materials produced by the petitioner levied entry tax on 107 nos. of items out of 112 items imported by the petitioner treating the same to be chemicals on the ground that the petitioner failed to produce documentary evidence to show that the said items were not chemicals. The petitioner submitted that the onus or burden is on the Assessing/Taxing Authority to show that a product falls within a particular class of goods or items is taxable in a manner claimed by them and mere assertion in that regard is of no avail and it is the Department concerned who has to produce proper evidence and discharged the burden to classify the goods under particular entry different from one assessed. According to the petitioner, 107 items involves in this case upon which tax has been levied, are not classified items under entry 51 of the Schedule to the Assam Entry Tax Act, 2008. 17. Mr. According to the petitioner, 107 items involves in this case upon which tax has been levied, are not classified items under entry 51 of the Schedule to the Assam Entry Tax Act, 2008. 17. Mr. M. Nath appearing for the taxation Department of the State submitted that re-assessment has been done on the basis of best judgment assessment as the assessee, the petitioner company failed to file his return within the prescribed time in spite of due notice and relying upon the judgment of the Hon'ble Apex Court in the case of the Commissioner of Sales Tax, Madhaya Pradesh v. H.M. Esufali, H.M. Abdulali reported in AIR 1973 SC 226 submitted that it is the duty of assessee to place all facts truthfully before the assessee authority and if the assessee failed to do his duty, he cannot be permitted to take advantage of his own illegal acts. 18. From the perusal of the impugned order dated 28.08.2015 it is seen that the importer, i.e. the petitioner company was asked to present his case vide No. 1714 dated 20.11.2014 and on the said date the petitioner prayed for re-fixing the date of hearing accordingly it was re-fixed on 22.06.2015 when the authorised representative of the petitioner submitted a written submission and prayed for further time for submission of document/information placed on records for classification of items in question in the manner otherwise as they claimed. From the impugned order it is seen that the assessing officer asked the assessee, i.e. the petitioner to submit the supporting document in support of its contention that most of the items are not chemicals those were found to be chemicals but the assessee failed to appear on the date of hearing and the assessing officer came to the conclusion that the importer/assessee/the petitioner has nothing to say in respect the case and accordingly proceeded to assess the said importer. 19. In the case of HPL Chemicals Limited v. Commissioner of Central Excise, Chandigarh reported in 2006 (5) SCC 208 , the Hon'ble Supreme Court have held as follows : "28. This apart, classification of goods is a matter relating to chargeability and the burden of proof is squarely upon the Revenue. 19. In the case of HPL Chemicals Limited v. Commissioner of Central Excise, Chandigarh reported in 2006 (5) SCC 208 , the Hon'ble Supreme Court have held as follows : "28. This apart, classification of goods is a matter relating to chargeability and the burden of proof is squarely upon the Revenue. If the Departments intends to classify the goods under a particular heading or sub-heading different from that claimed by the assessee, the Department has to adduce proper evidence and discharge the burden of proof. In the present case the said burden has not been discharged at all by the Revenue. On the one hand, from the trade and market enquiries made by the Department, from the report of the Chemical Examiner, CRCL and from HSN, it is quite clear that the goods are classifiable as "denatured salt" falling under Chapter Heading 25.01. The Department has not shown that the subject product is not bought or sold or is not known or is dealt with in the market as denatured salt. The Department's own Chemical Examiner after examining the chemical composition has not said that it is not denatured salt. On the other hand, after examining the chemical composition has opined that the subject-matter is to be treated as sodium chloride. 29. It has been held by this Court in a number of judgments that the burden of proof is on the Revenue in the matter of classification. In Union of India v. Garware Nylons Ltd. (1996) 10 SCC 413 ) in para 15 this Court held as under : (SCC pp. 419-20) "15. In our view, the conclusion reached by the High Court is fully in accord with the decisions of this Court and the same is justified in law. The burden of proof is on the taxing authorities to show that the particular case or item in question is taxable in the manner claimed by them. Mere assertion in that regard is of no avail. It has been held by this Court that there should be material to enter appropriate finding in that regard and the material may be either oral or documentary. It is for the taxing authority to lay evidence in that behalf even before the first adjudicating authority. Mere assertion in that regard is of no avail. It has been held by this Court that there should be material to enter appropriate finding in that regard and the material may be either oral or documentary. It is for the taxing authority to lay evidence in that behalf even before the first adjudicating authority. Especially in a case as this, where the claim of the assessee is borne out by the trade enquiries received by them and also the affidavits filed by persons dealing with the subject-matter, a heavy burden lay upon the Revenue to disprove the said materials by adducing proper evidence. Unfortunately, no such attempt was made. As stated, the evidence led in this case conclusively goes to show that nylon twine manufactured by the assessee has been treated as a kind of nylon yarn by the people conversant with the trade. It is commonly considered as nylon yarn. Hence, it is to be classified under Item 18 of the Act. The Revenue has failed to establish the contrary. We would do well to remember the guidelines laid down by this Court in Dunlop India Ltd. v. Union of India ( (1976) 2 SCC 241 : AIR 1977 SC 597 ) in such a situation, wherein it was stated : (SCC p. 254, AIR p. 607, para 35) 'When an article has, by all standards, a reasonable claim to be classified under an enumerated item in the Tariff Schedule, it will be against the very principle of classification to deny it the parentage and consign it to an orphanage of the residuary clause.' "(emphasis in original) 30. Similarly, in Hindustan Ferodo Ltd. v. CCE [ (1997) 2 SCC 677 ] it is held in para 4 as under : (SCC p. 679) "4. It is not in dispute before us, as it cannot be, that the onus of establishing that the said rings fell within Item 22-F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assuming therefore, that the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal should, nonetheless, have been allowed." " 20. In the case of Voltas Ltd. v. State of Gujrat reported in (2015) 7 SCC 527 the Hon'ble Supreme Court has held that : "26. The onus was not discharged. Assuming therefore, that the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal should, nonetheless, have been allowed." " 20. In the case of Voltas Ltd. v. State of Gujrat reported in (2015) 7 SCC 527 the Hon'ble Supreme Court has held that : "26. Qua the issue of classification of goods to determine the chargeability thereof and the rates of levy applicable, it is no longer res-integra that the burden of proof is on the taxing authority to demonstrate that a particular class of goods or item in question is taxable in the manner claimed by them and that mere assertion in that regard is of no avail as has been enunciated by this Court in U.O.I. & Ors. v. Garware Nylones Ltd. etc. (1996) 10 SCC 413 and relied upon with approval in HPL Chemicals Ltd. v. Commissioner of Central Excise, Chandigarh (2006) 5 SCC 208 ". 21. In the case of the State of Kerala v. C. Velukutty reported in (1966) 60 ITR 239 with regard to best judgment assessment the Hon'ble Apex Court have held that : "9. What is the scope of Section 12(2)(b) of the Act? The expression "to the best of his judgment" in the said clause is presumably borrowed from Section 23(4) of the Income Tax Act. The said expression in the Income Tax Act was subject of judicial scrutiny. The Privy Council in CIT v. Laxminarain Badridas [1937 (5) ITR 170, 180] has considered those words. Therein it observed : "He (the assessing authority) must not act dishonestly, or vindictively or capriciously because he must exercise judgment in the matter. He must make what he honestly believes to be a fair estimate of the proper figure of assessment, and for this purpose he must, Their Lordships think, be able to take into consideration local knowledge and repute in regard to the assessee's circumstances, and his own knowledge of previous returns by and assessments of the assessee, and all other matters which he thinks will assist him in arriving at a fair and proper estimate; and though there must necessarily be guess work in the matter, it must be honest guess work. In that sense, too, the assessment must be to some extent arbitrary." The Privy Council, while recognizing that an assessment made by an officer to the best of his judgment involved some guess work, emphasised that he must exercise his judgment after taking into consideration the relevant material. The view expressed by the Privy Council in the context of the Income Tax Act was followed when a similar question arose under the Sales Tax Act. A Division Bench of the Calcutta High Court in Jagadish Prosal Pannalal v. Member, Board of Revenue, West Bengal [1951 (2) STC 27] confirmed the assessment made by the Sales Tax authorities, as in making the best judgment assessment the said authorities considered all the available materials and applied their mind and tried their best to come to a correct conclusion. So too, a Division Bench of the Patna High Court in Doma Sahu Kishun Lal Sao v. State of Bihar [ 1951 (2) STC 37 ] refused to interfere with the best judgment assessment of a Sales Tax Officer as he took every relevant material into consideration, namely, the situation of the shop, the rush of the customers and the stock in the shop and also the estimate made by the Assistant Commissioners in the previous quarters. 10. Under Section 12(2)(b) of the Act, power is conferred on the assessing authority in the circumstances mentioned thereunder to assess the dealer to the best of his judgment. The limits of the power are implicit in the expression "best of his judgment". Judgment is a faculty to decide matters with wisdom truly and legally. Judgment does not depend upon the arbitrary caprice of a Judge, but on settled and invariable principles of justice. Though there is an element of guess work in a "best judgment assessment", it shall not be a wild one, but shall have a reasonable nexus to the available material and the circumstances of each case. Though sub-section (2) of Section 12 of the Act provides for a summary method because of the default of the assessee, it does not enable the assessing authority to function capriciously without regard for the available material." 22. Though sub-section (2) of Section 12 of the Act provides for a summary method because of the default of the assessee, it does not enable the assessing authority to function capriciously without regard for the available material." 22. It is seen that though the written submission of the petitioner dated 21.06.2015, that was submitted pursuant to the Notice of the Assessing Officer dated 20.11.2014 & 11.06.2015, was available before him, but the Assessing Officer did not consider the same while passing the impugned order of 'best judgment assessment' dated 28.08.2015, considering it to be incomplete or incorrect. 23. Moreover, the impugned assessment order dated 28.08.2015 do not disclose that the items/raw materials that the petitioner company made inter-state purchase during 2005-06, upon which tax has been levied by the impugned order, is taxable being classified items under Entry 51 of the Schedule to the Assam Entry Tax Act, 2008 in the manner claimed by the departmental authority. Further, the said impugned order also does not reflect that the departmental authority adduced proper evidence and discharge the burden of proof with regard to such finding. 24. For the reasons above, we are of the considered opinion that the impugned assessment order dated 28.08.2015 is vitiated in law and accordingly the same is set aside, leaving it open to the authority concerned to complete the assessment in accordance with law. 25. Writ petition stands allowed in terms of the direction indicated above.