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2017 DIGILAW 489 (RAJ)

Godrej and Boyce Manufacturing Company Limited v. Commercial Taxes Officer, Anti Evasion, Zone 1

2017-02-10

J.K.RANKA

body2017
JUDGMENT : J.K. Ranka, J. 1. Heard finally. 2. All these petitions at the instance of the assessee are directed against the order dt. 18.10.2013 passed by the Rajasthan Tax Board, Ajmer (in short 'the Tax Board'). It relates to the assessment years 2006-07, 2007-08, 2008-09, 2009-10 & 2010-11 respectively. 3. The brief facts noticed are that the assessee is a limited company having its registered office at Mumbai and having branches in several States of the Country including at Jaipur and effecting sales of computer parts and accessories, hardware articles, hydraulic door closers, UPS, furniture spares, handles etc. and paying tax @ 4%. A survey came to be conducted at the business premises of the assessee on 26.04.2011 where the Officer gathered certain information and after investigation, limited its enquiry to "hydraulic door closers" and it was noticed that insofar as Schedule (iv) is concerned, there being no specific entry of "hydraulic door closers" and though in the said Schedule under entry 92 "fitting for doors" does find place but there is no specific entry of "hydraulic door closers". The assessee however had stated to be falling in the said entry 92 of the Schedule (iv) as falling in the nature of fitting for doors. However, taking into consideration the judgment of the Karnataka High Court in the case of State of Karnataka Vs. Sanjiv Mehra and Another (1990) 79 STC 372 wherein door closer has been held to be machinery and also taking into consideration the other material, the Assessing Officer was of the view that the "hydraulic door closers" would fall under VAT Schedule (v) where a rate of 12.5% is applicable and accordingly show cause notice was served to the assessee. 4. The assessee-respondent while contending that "hydraulic door closers" is fitted in a door and thus it is a part thereof, it should certainly be covered under entry 92 of the Schedule (iv) only. It was further contended that the door closer is fitted in a door, and thus, would not fall in Schedule (v). However, the Assessing Officer being not satisfied, levied differential tax as also interest as well as penalty u/Sec. 61 of the VAT Act. 5. The matter was assailed before the Dy. Commissioner (A), before whom the same pleas were reiterated by the assessee, however, Dy. However, the Assessing Officer being not satisfied, levied differential tax as also interest as well as penalty u/Sec. 61 of the VAT Act. 5. The matter was assailed before the Dy. Commissioner (A), before whom the same pleas were reiterated by the assessee, however, Dy. Commissioner (A) also did not agree with the contentions raised by the assessee and upheld the rate of 12.5% as well as interest, However, insofar as the penalty u/Sec. 61 is concerned, it was deleted. 6. The matter was further assailed by the assessee before the Tax Board, who also upheld the finding of both the lower authorities. 7. Learned counsel for the assessee vehemently contended that "hydraulic door closers" control/retard speed of the door to avoid any harm to the glass or wood in the door and thus would clearly fall within the specific entry 92 of the Schedule (iv) alone which is the entry known as "fitting for doors". Counsel also contended the there is no "hydraulic door closer" and it is simple door closer and it is merely a device fitted in a door and all the authorities have gone wrong in taking it to the residuary entry in Schedule (v) when it is certainly covered under entry 92 of Schedule (iv). Counsel also tried to distinguish the judgment of the Karnataka High Court in the case of State of Karnataka Vs. Sanjiv Mehra and Another (supra) and also contended that definition as given in Wikipedia cannot be relied upon, and thus, contended that question of law arise out of the order of the Tax Board and relied on judgment of the Apex Court & the other authorities in the case of Ponds India Ltd. (Merged with H.L. Ltd.) Vs. Commissioner of Trade Tax, Lucknow (2008) 15 VST 256 (SC), Commissioner of Central Excise Vs. Sharma Chemical Works (2003) 132 STC 251 (SC), Commissioner of Central Excise, Nagpur Vs. Vicco Laboratories 2005 (179) E.L.T. 17 (SC), Commissioner of Central Excise & Custom (Appeals), Ahmedabad Vs. Narayan Polyplast 2005 (179) E.L.T. 20 (SC), Commissioner of Central Excise, Mumbai Vs. Mahindra & Mahindra Ltd. 2005 (179) E.L.T. 21 (SC), Union of India Vs. Garware Nylons Ltd. 1996 (87) E.L.T. 12 (SC), Polestar Electronic (PVT) Ltd. Vs. Additional Commissioner, Sales Tax, and Another (1978) 41 STC 409 , Pepsico India Holdings Pvt. Ltd. Vs. Commissioner of Commercial Taxes, Chennai and Others. Mahindra & Mahindra Ltd. 2005 (179) E.L.T. 21 (SC), Union of India Vs. Garware Nylons Ltd. 1996 (87) E.L.T. 12 (SC), Polestar Electronic (PVT) Ltd. Vs. Additional Commissioner, Sales Tax, and Another (1978) 41 STC 409 , Pepsico India Holdings Pvt. Ltd. Vs. Commissioner of Commercial Taxes, Chennai and Others. (2010) 29 VST 214 (Mad) & M.K. Industries Vs. State of Gujrat (1993) 90 STC 207 . 8. Per-contra, ld. counsel for the respondent contended that all the three authorities in unison have found that "hydraulic door closers" is entirely a different product and its use is also different and it cannot fall within the entry 92 of Schedule (iv). Counsel also contended that the "hydraulic door closers" even as per the assessee is a mechanical device and it contains 16 components namely; hydraulic Oil filling and spring and other parts. Counsel contended that fitting for doors would mean Hinges-butt, Handle & latch etc. Counsel also contended that Karnataka High Court in the case of State of Karnataka Vs. Sanjiv Mehra and Another (supra) has considered the same product and had come to the conclusion that "hydraulic door closers" is not a part of the door and detailed reasoning has been given by the Court in coming to the said conclusion. Counsel also contended that even the Apex Court has held that Wikipedia can reasonably be considered to be one of the basis for ascertaining and relied upon the judgment of the Gauhati High Court in the case of Sterlite Optical Technologies Ltd. Vs. Oil India Limited and Ors. (2008) 14 VST 9 (Gauhati). 9. I have considered the arguments advanced by the counsel for the parties and have perused the material available on record. In my view, the finding reached by all the three authorities in unison appears to be just and proper and is not required to be interfered with. 10. It would be appropriate to quote the specific entry 92 of the Schedule (iv) which reads as under:- 92. In my view, the finding reached by all the three authorities in unison appears to be just and proper and is not required to be interfered with. 10. It would be appropriate to quote the specific entry 92 of the Schedule (iv) which reads as under:- 92. Nuts, bolts, screws, fasteners, Fitting for doors, window and furniture including (1) hinges-butt, piano, narrow, tee, handles for locks, furniture handles, furniture knobs, drawer Channel, furniture fitting, furniture hinges, furniture catchers, (2) nails, rivets, cotter pins, staples, panel pins, blue cut takes, hob nails, stars, studs, iron heels, bullock and horse shoes and nails, (3) chains of all kinds, (4) all kinds of metal sections, including slotted angles, shelves and accessories, (5) rods, rails, channels and curtain fittings, (6) tower bolts, handles, aldrops, window stay, gate hook, door stopper, brackets, card clamp, clips, corners, washers, eyelets, hooks and eyes, hangers, hasps, pegs, pelmet fittings, sliding door fittings, stoppers, suspenders, springs, magic eyes, trolley wheels, pulleys and holdfasts, (7) wire brushes, (8) wire mesh, metal mesh, wire netting and barbed wire. 11. The above shows various parts of door fittings namely'; Stoppers, Suspender, Springs, Magic Eye, Trolley Wheels, Pulleys & Holdfasts etc but "hydraulic door closers" does not find place in it. "Hydraulic door closers" appears to be a mechanical device and as submitted by the counsel for the petitioner, it stops the speed of the door or retard the speed. Even if, one takes into consideration the common parlance test which even the Apex Court time and again in the case of classification has taken into consideration it prima-facie appears that if a person asks from the dealer about part of fitting of doors, it would certainly mean to be Stoppers, Suspender, Springs, Magic Eye, Trolley Wheels, Pulleys & Holdfasts & Channels etc. but none would give "hydraulic door closers" as fitting for doors. It is only if one requires "hydraulic door closers" then the shop-keeper may give. In my view, aid of Wikipedia can certainly be taken into consideration by both the sides. If, some aid can be taken out of the meaning given by Wikipedia as it is also an encyclopedia, it may not be wholly reliable but certainly it can be taken into consideration and even the Apex Court has held that aid of Wikipedia can also be taken into consideration. If, some aid can be taken out of the meaning given by Wikipedia as it is also an encyclopedia, it may not be wholly reliable but certainly it can be taken into consideration and even the Apex Court has held that aid of Wikipedia can also be taken into consideration. All the three Authorities have taken into consideration what is Door Closer, Door Furniture fitting & Door Stops in Wikipedia which reads as under:- "Door Closer A door closer is a mechanical device that closes a door, in general, after someone opens it, or after it was automatically opened. Choosing a door closer can involve the consideration of a variety of criteria. In addition to the closer's performance in fire situations, other criteria may include resistance to opening force (for use by disabled or infirm) as well as health, safety, durability, risk of vandalism/ligature and aesthetics. Door furniture (Fittings) Door furniture of hardware refers to any of the items that are attached to a door or a drawer to enhance its functionality or appearance. This includes items such a hinges, handles, door stops etc. Door Stops- Door stops are simple device used to prevent a door from coming into contact with another object (typically a wall). Without the door stop, damage might be done to the wall. They may either absorb the force of a moving door or hold the door in place to prevent unintended motion." 12. I have also gone through the judgments relied upon by the counsel for the assessee and also by all the three authorities. It would be appropriate to quote the relevant para of the judgment of the Karnataka High Court in the case of State of Karnataka Vs. Sanjiv Mehra and Another (supra) which is as under:- "This Court again had an occasion to explain the concept of the term "machinery" in K.B. Dani v. State of Karnataka. This Court in that decision after referring to several decisions on the point, held thus: "..... Sanjiv Mehra and Another (supra) which is as under:- "This Court again had an occasion to explain the concept of the term "machinery" in K.B. Dani v. State of Karnataka. This Court in that decision after referring to several decisions on the point, held thus: "..... 'machine' means a mechanical device consisting of a planned and an organised arrangement of various parts, each part having definite functions and, as a result of combined functioning, does some work, which may be impossible or difficult for human physical power to perform or even if it can be done it cannot be done continuously for a long period or with the speed and with the same uniformity with which the machinery does the same work. Supply of power to the machine could be either by the natural forces or by human or animal energy, or electric energy or any other type of energy." In the present cases, the respondent produced certain literature before the assessing authority in support of its contention that door closers should be treated as hardware. According to the respondent the term "door closers" was deal with and considered by a committee known as Builders Hardware Section Committee constituted under the aegis of Indian Standards Institution, New Delhi, and produced the brochure entitled "Indian Standard Specification for Door Closers (Hydraulically Regulated)" which stated that automatic door closers are being increasingly used by builders. According to the said brochure "a hydraulic door closer is an equipment for automatic closing of doors by the help of spring such that the phase of closing is slowed down by a hydraulic damper". Applying the test laid down by the Privy Council and this Court in the decisions referred to above, it is clear that the contraption or device known as door closer consists of an arrangement having certain parts containing several materials which uses hydraulic oil filling and also with the main arm securely fitted to the shaft by a square or hexagonal profile or profile of any other suitable shape with a nut and a washer. The assembly consists of not less than sixteen items of material. Thus, the function of the door closer being one to retard the closing of the door by use of a hydraulic damper, the device clearly comes within the description of "machine". The assembly consists of not less than sixteen items of material. Thus, the function of the door closer being one to retard the closing of the door by use of a hydraulic damper, the device clearly comes within the description of "machine". We are aware of the decision of the Supreme Court which says that there should not be any technical approach nor should a commodity be understood in any technical sense but in the ordinary parlance of commercial context to class an item of goods in one category or another. In the present cases, considering the nature of the arrangement of the device and its functions it cannot be said that it is merely a door hinge and a simple device, not to be called a machine. Therefore, we cannot but reject the contentions raised on behalf of the respondent. The above discussion leads to the irresistible conclusion that door closers of the type sold by the respondent are machinery for the purpose of entry 20 of the Second Schedule to the Act and the decision to the contrary rendered by the Tribunal will have to be set aside restoring the orders of the assessing and appellate authorities." 13. In my view, the above judgment covers the same issue and I do not find any distinguishing feature as contended by the counsel for the petitioner. 14. Therefore, taking into consideration the aforesaid and concurrent finding recorded by all the three authorities in unison no interference is required in the orders impugned. 15. Consequently, I do not find any infirmity, perversity or illegality in the order impugned so as to call for interference by this Court and the batch of petitions being devoid of merit, is hereby dismissed.