JUDGMENT : 1. All these instant petitions are directed against order dt 29.8.2013/17.9.2013 passed by the Rajasthan Tax Board, Ajmer, and relate to assessment years 2006-07 to 2009-10. 2. The brief facts noticed, as given in STR 104/2014, are that the assessee is a limited company and is engaged in manufacturing and trading of colour boxes, insulating tape and certain specified series of products of Dr. Fixit Series used in building activity for water proofing, binding agent & bonding material and is supplying the product in the country. 3. The assessee furnished its return declaring the product being sold classifiable @ 4% of Schedule-IV of the Rajasthan Value Added Tax Act, 2003, however, the Assessing Officer was of the view that the products are not classifiable @ 4% rather they fall in residuary Schedule-V where the rate of 12.5% is applicable. Accordingly, show cause notice was given to the assessee. 4. Initially it appears that the assessee did not give bifurcation of the sale product-wise and after granting several opportunities, the assessee gave details as also literature of the various products. It appears from the assessment order that despite opportunities having been granted thereafter too, the assessee did not produce the relevant records/details and justify its claim that the product being sold fell in which category of Schedule-IV. The assessee at a later stage gave details with entry as under :- ^^8- O;ogkjh }kjk is'k tokc ds vuqlkj mDr 15 Jsf.k;ksa ds o`gr~ oxhZdj.k dk fooj.k iSjk la0 8 (i) ls 8(xv) rd fuEu izdkj gS%& 8(i) QuhZpj cqDl@Qsfodzy cqDl%& vuqlwph la0 IV dh izfof"V la0 104 & dqy fcdzh :0 9]796-81 8(ii) DR. FIXIT PIDIPROOF LW – csph xbZ 21 oLrqvks dh izLrqr lwph esa vkbZVe la0 2 ij vafdr oLrq,W DR. FIXIT PIDIPROOF LW dqy fodz; jkf'k :0 7]85]560%& mDr oLrq,W O;ogkjh }kjk jktLFkku ewY; ifjof/kZr dj vf/kfu;e dh vuqlwph la[;k IV dzaekd 69 ij ikVZ& ^ch^ dh lwph esa dze la0 268 ij vafdr ”chemical” vkPNkfnr gksuk dfFkr fd;k gS] ,oa mlds lkfgR; dh izfr layXu dh xbZ gSA 8(iii) DR. FIXIT PIDIPROOF PS csph xbZ 21 oLrqvksa dh izLrqr lwph esa vkbZVe la0 3 ij vafdr oLrq,W DR. FIXIT PIDIPROOF PS csph xbZ 21 oLrqvksa dh izLrqr lwph esa vkbZVe la0 3 ij vafdr oLrq,W DR. FIXIT PIDISEAL POLY SULPHIDE dqy fodz; jkf'k :0 3]53]352-09%& mDr oLrq,W O;ogkjh }kjk jktLFkku ewY; ifjof/kZr dj vf/kfu;e dh vuqlwph la[;k IV dzaekd 69 ij ikVZ&^ch^ dh lwph esa dze la0 268 ij vafdr ”Chemical” ls vkPNkfnr gksuk dfFkr fd;k gS] ,oa mlds lkfgR; dh izfr layXu dh xbZ gSA 8(iv) DR. FIXIT PIDICRETE URP csph xbZ 21 oLrqvksa dh izLrqr lwph esa vkbZVe la0 4] 6 ,oa 8 ij vafdr fuEu oLrq,W%& 4- DR. FIXIT URP 6- ROFF CONCRETE MASTER 8- ROFF BOND REPAIRS dqy fodz; jkf'k :0 5]41]535-80 %& mDr oLrq,W O;ogkjh }kjk jktLFkku ewY; ifjof/kZr dj vf/kfu;e dh vuqlwph la[;k IV ds dzaekd 69 ij ikVZ& ^ch^ dh lwph esa dze la0 268 ij vafdr “chemical” vkPNkfnr gksuk dfFkr fd;k gS] ,oa mlds lkfgR; dh izfr layXu dh xbZ gSA 8(v) DR. FIXIT PIDICRETE MPB csph xbZ 21 oLrqvksa dh izLrqr lwph esa vkbZVe la0 5 ,oa 12 ij vafdr fuEu oLrq,W& 5- DR. FIXIT MPB 12- ROOF SUPERCRETE dqy fodz; jkf'k :0 2]47]844-50 %& mDr oLrq,W O;ogkjh }kjk jktLFkku ewY; ifjof/kZr dj vf/kfu;e dh vuqlwph la[;k IV dzaekd 69 ij ikVZ& ^ch^ dh lwph esa dze la0 268 ij vafdr “chemical” vkPNkfnr gksuk dfFkr fd;k gS] ,oa mlds lkfgR; dh izfr layXu dh xbZ gSA 8(ix) DR. FIXIT PIDICRETE CF-21/CF-51/CF-111/CF-111-S %& csph xbZ 21 oLrqvksa dh izLrqr lwph esa vkbZVe la0 11 ij vafdr oLr,W DR. FIXIT PIDICRETE CF bl Js.kh esa gksuk dfFkr fd;k x;k] ftldk dqy fodz; :0 81]642-50 gS%& mDr oLrq,W O;ogkjh }kjk jktLFkku ewY; ifjof/kZr dj vf/kfu;e dh vuqlwph la[;k IV dzaekd 69 ij ikVZ& ^ch^ dh lwph esa dze la0 268 ij vafdr “chemical” vkPNkfnr gksuk dfFkr fd;k gS] ,oa mlds lkfgR; dh izfr layXu dh xbZ gSA^^ 5. The AO went into detail of the products being sold and after analysing the entries vis-a-vis the product classified, while he was satisfied that a few products were taxable @ 4% and held so, however, insofar as the majority of Dr. The AO went into detail of the products being sold and after analysing the entries vis-a-vis the product classified, while he was satisfied that a few products were taxable @ 4% and held so, however, insofar as the majority of Dr. Fixit products are concerned as referred to hereinbefore and a few other products with the sale value of Rs.82,78,289/-, held that they do not fall in any of the entries of Schedules-I, II, III & IV and when they do not fall in any of the Schedules-I to IV, then it has to be taxable at the rate shown in Schedule-V and accordingly applied the rate of 12.5% and since 4% was paid, charged differential tax @ 8.5%. The AO, took into consideration the entries which were referred to by the assessee and falling in Schedule-IV but the same being in the nature of “industrial outputs” the AO also rejected the claim. Interest was simultaneously levied. 6. The AO also held that the assessee had evaded the tax by showing rate @ 4% only knowing fully well that the entries as they have been shown, do not fall in any of the Schedules-I to IV, and also was satisfied that it is case where the assessee is to be visited with the penalty u/s 61 of the Act. 7. The assessee preferred appeal before the Dy. Commissioner (Appeals). The DC(A), categorised into two different parts and held that colour boxes and insulating tape are covered in entry 151 of Schedule-IV and entry 225 of Part 'B' respectively, where the rate of 4% is applicable and thus, insofar as these two products are concerned i.e. colour boxes and insulating tape, accepted the contention of assessee. 8. However, insofar as the various products relating to Dr. Fixit Series is concerned, the learned DC(A) was not satisfied with the explanation offered and also the literature produced and held that Dr. Fixit Series products have direct bearing on water proofing and cement binding activities relating to building/civil works and cannot be treated to be “industrial inputs” under Part 'B' of Schedule-IV of the Act, 2003, and accordingly, rejected the claim of assessee. The DC(A) was also satisfied and levy of interest was also upheld, and insofar as penalty is concerned, after analysing various judgments, upheld the penalty as well. 9. The DC(A) was also satisfied and levy of interest was also upheld, and insofar as penalty is concerned, after analysing various judgments, upheld the penalty as well. 9. The assessee, being not satisfied, further filed appeals before the Rajasthan Tax Board, who took up all the appeals of the assessee together and vide impugned order was also satisfied that the products of Dr. Fixit Series are not classifiable in any of the Schedules-I to IV as claimed by the assessee, and accordingly upheld the levy of tax @ 12.5% and also upheld levy of interest. However, insofar as the penalty u/s 61 is concerned, was satisfied that it is not a case where the AO could prove that the assessee really evaded tax or there was any concealment on the part of the assessee, and accordingly deleted the penalty. 10. This court admitted the following questions of law :- “(i) Whether the products of Dr. Fixit Series viz. water proofing materials, binding material and bonding agents used in civil construction industry and related works are industrial inputs classifiable under entry 69 as “industrial inputs” of Schedule-IV or the residual entry no.1 of Schedule-V? (ii) Whether the learned Tax Board and lower authorities were legally justified in deciding the issue as to whether Dr. Fixit Series of Products are pure and simple chemicals having a composition of several constituents inter alia including those of chemical nature and ignoring the test reports on National Test House of Government of India which certified the product as chemicals?” 11. Learned counsel for the assessee vehemently contended that Dr. Fixit Series of products, as they stand, are mainly chemical additives used in construction industry for modification of concrete or mortar to impart water proofing and bonding characteristics to concrete or mortar, and thus these products are used to impart strength, density and impermeability to concrete, with different formulations. Some of the products are used in construction industry before coating or painting of concrete to take care of expansion of contraction of joints, with different formulations. These are basically chemicals, used by construction industry in place of water for curing the concrete and analysed the characteristics of the various products, and tried to justify the claim of the assessee that these are nothing but chemicals used in civil constructions. These are basically chemicals, used by construction industry in place of water for curing the concrete and analysed the characteristics of the various products, and tried to justify the claim of the assessee that these are nothing but chemicals used in civil constructions. Learned counsel further vehemently contended that the lower authorities failed to appreciate the fact that the petitioner being a chemical industry, is engaged in the manufacture of construction chemicals, and list of the chemicals along with their chemical reactions, were provided to the AO and the lower authorities that the particular chemicals are used in construction of building and even the test reports of National Test House of Government of India were duly placed on record which clearly declare that the goods in question are chemical in nature. 12. Learned counsel also relied on a publication of FICCI “Indian Construction Chemicals Industry – Imperatives of Growth published with Knowledge & Strategy Partner - Tata Strategic Management Group”, where such items have been treated as construction chemicals, used in construction industry, and laid stress on facts that the benefits of using construction chemicals are far more than the increase in the cost of product which is 2 to 5%, and that certain chemical products help in minimising the quantities of cement and water, used in the construction activity. Learned counsel also contended that the authorities below failed to appreciate the nature of the products as they stand and are not justified in taking into residuary Schedule-V when it clearly falls in Schedule-IV, and once the claim is well reasoned to fall in Schedule-IV, question of taking into Schedule-V does not arise. Learned counsel contended that if the Revenue claims that it falls in Schedule-V, then the burden lay on the AO, which it failed. Learned counsel also stated that under Central Excise Tariff, the items of the petitioner are classified as under Category-3824, which prescribes as:- “Prepared Binders for Foundry Moulds or Cores; Chemical Products and Preparations of the Chemical Or Allied Industries (including those consisting of mixtures of Natural Products), Not elsewhere specified or Included. 3824 10 00 – Prepared binders for foundry moulds Kg. 12.5% or cores 3824 30 00 – Non-agglomerated metal carbides mixed kg. 12.5% together or with metallic binders 3824 40 – Prepared additives for cements, mortars or concretes: 3824 40 10 --- Damp proof or water proof compounds kg. 3824 10 00 – Prepared binders for foundry moulds Kg. 12.5% or cores 3824 30 00 – Non-agglomerated metal carbides mixed kg. 12.5% together or with metallic binders 3824 40 – Prepared additives for cements, mortars or concretes: 3824 40 10 --- Damp proof or water proof compounds kg. 12.5% 3824 40 90 --- Other” 13. Learned counsel also relied on Dhian Singh v. Municipal Board, Saharanpur (1969) 2 SCC 371 , Amar Chandra Chakraborty v. The Collector of Excise, Govt. of Tripura, Agartala & Others (1972) 2 SCC 442 , Collector of Customs, Madras v. Lotus Inks 1996 (87) E.L.T. 580 (S.C.), Poulose & Mathen v. Collector of Central Excise 1997 (90) E.L.T. 264 (S.C.), Assistant Commissioner (Intelligence) v. Nandanam Construction Co. (1999) 8 SCC 69 , Commissioner of Central Excise, Calcutta v. Sharma Chemical Works (2003) 5 SCC 60 , Quinn India Ltd. v. Commissioner of Central Excise, Hyderabad (2006) 9 SCC 559 , Maharashtra University of Health Sciences & Others v. Satchikitsa Prasarak Mandal & Others (2010) 3 SCC 786 , Glaxosmithkline Pharmaceuticals Ltd. & Others v. State of Madhya Pradesh (2011) 13 SCC 72 , M.P. Agencies v. State of Kerala (2015) 7 SCC 102 , Tata Chemicals Ltd. v. Commissioner of Customs (Preventive), Jamnagar (2015) 11 SCC 628, Commissioner of Central Excise, Mumbai v. Associated Cement Company Ltd. (2015) 15 SCC 795, Assistant Commissioner, Anti Evasion, Rajasthan-I, Jaipur v. M/s Camlin Limited & Another 2015 (4) RLW 3130 (Raj.), Commissioner of Central Excise v. German Dyes & Chemicals 2016 (332) E.L.T. 599 (Del.). 14. Per contra, learned counsel for the Revenue contended that the assessee was granted repeated opportunities by the AO and who avoided to file a proper response and despite that the AO had taken into consideration all the relevant entries and had correctly analysed the entries and has rightly held that Dr. Fixit Series of product of the assessee does not fall in Schedule-IV. Learned counsel contended that all the three authorities in unison have after elaborate findings, in a reasoned manner, after taking into consideration the literature produced by the assessee before the lower authorities including Tax Board, have submitted that the entries in Part 'B' “industrial inputs” as specified in part 'B' of the Schedule” has to be interpreted in terms of the referred entry which limits the scope of Part ‘B’ of Schedule-IV to “industrial inputs” only. Learned counsel contended that the “industrial inputs” as specified in Part 'B' of the Schedule, if the assessee intends to take it to that of “industrial inputs”, is not justified as only “industrial inputs” if they are, can be taken into that category. Learned counsel contended that the claim of assessee that these are chemicals, being not specified elsewhere in any of the entries or Schedule, then the claim of assessee falls flat. Learned counsel contended that the products as have been argued by the counsel for the assessee are meant for water proofing or as bonding agent only and nothing more and they cannot be treated to be “industrial inputs” at all. Learned counsel further contended that once the assesee was unable to prove as to how it fell within specific entry, the AO had to take it to Schedule-V and initial burden is on the assessee to prove that it fell in any of the entries and since it failed, therefore, as a natural corollary it had to be taken in Schedule-V. Learned counsel also laid stress on the common parlance test and contends that these are products for the specified purpose like water proofing, binding material and they cannot be treated as “industrial inputs” and relied on Atul Glass Industries (Pvt.) Ltd. v. Collector of Central Excise (1986) 3 SCC 480 , Mukesh Kumar Aggarwal & Co. v. State of Madhya Pradesh & Others [1988] 68 STC 324 (SC), Mauri Yeast India Pvt. Ltd. v. State of U.P. & Another (2008) 5 SCC 680 , Raja Brick & Tile Industries v. The Addl. Commissioner of Commercial Taxes, Zone-II & Anr. [2006] 146 STC 124 (Kar), RayBan Sun Optics India Ltd. v. Dy. Commissioner (Appeals), Commercial Tax Department 2015 (1) RLW 669 (Raj.). 15. I have considered the arguments advanced by the learned counsel for the parties and have perused the material on record. 16. It would be appropriate to quote entry 69 of Schedule- IV and Sl. no.268 of Part 'B', Schecule-V, while the claim of the assessee is that it falls in item 69 of Part 'B' Sl. no.268 but the claim of the Revenue is that it falls in Schedule-V as it is not covered in the specific entries:- “Schedule-IV Goods Taxable at 4% 69 Industrial Inputs as specified in Part-B of this Schedule. no.268 of Part 'B', Schecule-V, while the claim of the assessee is that it falls in item 69 of Part 'B' Sl. no.268 but the claim of the Revenue is that it falls in Schedule-V as it is not covered in the specific entries:- “Schedule-IV Goods Taxable at 4% 69 Industrial Inputs as specified in Part-B of this Schedule. 4% Part-B Goods under category of Industrial Inputs 268 Chemicals not specified elsewhere in this Schedule or in any other Schedule (added vide notification No.F.12(28) FD/Tax/2007-138 dated 9.3.2007.” 4% “Schedule-V Goods Taxable at 14% Goods not covered in any other Schedule under the Act or under any notification issued under section 4 of the Act.” 17. The salient features of the products as they stand, have been given hereinbefore. 18. The Apex court in the case of Union of India v. Dharamendra Textile Processors 2008 (18) VST 180 , has held that it is well-settled principle of construction that a statute has to be read as a whole and all parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. It is also well settled that ordinary rules of interpretation to section in the Act is required to be adopted to construe the meaning of the entries in a Schedule of taxing statutes. 19. Having said so, it would be appropriate to examine entry 69 as referred to and relied upon by the assessee of Schedule-IV. The entry “industrial inputs” in my view explicitly makes it clear that only “industrial inputs” are to be incorporated in Part 'B'. Having noticed the salient features of the products being manufactured by the assessee of various Dr. Fixit Series, in my view, the products make it abundantly clear that these are meant for water proofing or as bonding agent as evident from the very features shown by the assessee and considered by the lower authorities. 20. The names of few Fixit Series products make it abundantly clear that these are meant for water proofing or as bonding agent as evident from the following :- “Dr. 20. The names of few Fixit Series products make it abundantly clear that these are meant for water proofing or as bonding agent as evident from the following :- “Dr. Fixit Super Latex It is a highly patent and versatile SBR based liquid for high performance application in water proofing and repairs.” “Dr. Fixit Pidicrete It is a SBR based liquid URP useful as an additive for concrete/mortars in repair/waterproofing applications, as well as a protective coating to rebars and cementitious substrates. It also serves as a bond coat to repair sections.” “Dr. Fixit Pidiseal It is a two-part elastomeric PS sealant based on liquid polysulfide polymer, which when mixed with accelerator (curing agent) cures by chemical reaction to from a tough, flexible rubber seal. This sealant has excellent adhesion to different surface like, masonary, concrete, timber, glass, aluminium etc., with excellent movement accommodation.” “Dr. Fixit Pidiseal It is a semi viscous, non safe hardening type of sealant. The product meets BS 5920 as safe sealant for potable water.” “Dr. Fixit Pidipoxy Is a self leveling epoxy ESL topping over cementitious substrates applied from 1.5 mm to 3 mm thickness, providing a hard-waring attractive floor, chemical resistant, seamless, and extremely easy to clean.” 21. Having noticed some of the products and earlier also highlighted, in my view, these products have direct bearing on the water proofing and cement binding activities relating to building/civil works and cannot be treated to be “industrial inputs” under Part ‘B’ of Schedule-IV of the Act. Once the products do not fall in specific entry 69 as claimed by the assessee or as “industrial inputs”, it has to fall in Schedule-V. Merely because some chemical is applied, it even otherwise does not prove that it falls in the ambit of “industrial inputs”. 22. The Apex court had given a principle that while taking into consideration the entries classifiable under various entries, common parlance test can also be applied. Going by this common parlance test and applying the test laid down by the Apex court, Dr. Fixit Series of products appear to be the end products used in water proofing or as binding material or bonding agents though in construction/civil works, but cannot be covered in the ambit of “industrial inputs”. 23. Going by this common parlance test and applying the test laid down by the Apex court, Dr. Fixit Series of products appear to be the end products used in water proofing or as binding material or bonding agents though in construction/civil works, but cannot be covered in the ambit of “industrial inputs”. 23. The claim of learned counsel for the assessee that in the earlier assessment years it was held to be chemicals payable @ 4% but, in my view, once specific entries have been brought in by the statute under the RVAT Act from 1.4.2006, even if similar products are classified with the rate of 4%, would change with the inception of various Schedules by which the products are governed. 24. Both the appellate authorities have also analysed the test reports of the National Test House of Government of India and in my view, have rightly concluded that the test reports does not certify or reveal Dr. Fixit Series of products to be chemicals as such. On the contrary, it unequivocally mentions that the aforesaid products are chemical in nature, and sample report gives a general finding, without analysing the constituents aggregately or into segregated components, so as to distinguish as to whether or not they are chemicals as such. 25. The above Dr. Fixit Series of products as they stand, have in my view been rightly held to be either water proofing materials or binding substances in category of building material used in construction works, like sealant, paints etc. and such products are generally and directly used by the consumers in construction works and could not be covered in the ambit of “industrial inputs” as contended by the learned counsel for assessee. Having analysed entry no.268 of Part ‘B’ of the Schedule (supra), the items as are consumed or used in the production or manufacture of new and different commercial viable product, however, the products of the petitioner are already finished goods usable in any given perspective according to the needs of the user. 26. The salient features, does clearly prove that the products do not answer the description of basic entry of chemical. 26. The salient features, does clearly prove that the products do not answer the description of basic entry of chemical. They have on the contrary a description of the utility of products as water proofing/bonding materials used as sealants, plasticizing agents, concrete curing compounds and related works, which makes them in common parlance marketable end products with distinct nomenclature of sealants and plasticizing bonding materials. 27. The Apex court in the case of Mauri Yeast India Pvt. Ltd. v. State of U.P. (supra) has held as under :- “It is now a well settled principle of law that in interpreting different entries, attempts shall be made to find out as to whether the same answers the description of the contents of the basic entry and only in the event it is not possible to do so, recourse to the residuary entry should be taken by way of last resort.” 28. In view of what has been noticed hereinbefore, the judgments relied upon by the learned counsel for the assessee, being not direct on the issue or remotely even touches the controversy, are not required to be referred to and are either inapplicable or distinguishable on facts. 29. In view of what has been observed hereinabove, the assessee is unable to satisfy this court that the products as they stand, fall in entry 69 and 268(Part-B) of Schedule-IV and thus, claim of the assessee being not justified, the finding reached by all the three authorities in unison, is upheld and consequently the questions are answered in favour of the Revenue and against the assessee. The petitions are dismissed with no order as to costs.