The respondent manufactures bitumen emulsion.
100 dated 15.1.2000 issued under the erstwhile U.P. Trade Tax Act, 1948, bitumen was taxed at 20.
Under the VAT Act, bitumen has been classified under Part A of Schedule II and the tax leviable is 4.
It was companytended before the tribunal by the assessee appellant therein that bitumen as a companymodity is taxed at 4 under Serial number 22 Part A of Schedule II to the VAT Act and bitumen is found in solid state and to bring it in the liquid form, water is added to it and very little quantity is used in the process.
The facts on which the companytroversy rests is in a narrow companypass.
6 of 2009 under the VAT Act before the Tribunal Commercial Taxes, U.P., Lucknow for short the tribunal which was heard by the Full Bench.
The dissatisfaction caused by the said adjudication, companystrained the assessee to approach the High Court in Commercial Tax Revision number 1156 of 2009.
Materials 1.
Be it stated, as per Notification No.
Any similar black, sticky mixture of hydrocarbons occurring naturally or pyrolytically in the atmosphere and companypletely soluble in carbon disulfide obtained mainly from natural oxidized petroleum products or from a petroleum distillation process.
The Commissioner of Commercial Taxes, vide order dated 23.1.1999 opined that bitumen emulsion is an unclassified companymodity and, therefore, is excisable to tax at the rate of 12.5 as it would fall under the residuary Entry.
To buttress the submissions, the assessee relied upon CST v. Ashok Grah Udyog Kendra Private Ltd.1, CST v. Bechu Ram Kishori Lal2, and M s Indodan Milk Products v. Commissioner Sales Tax3.
Elaborating the said submission, it was urged that when bitumen is available in the liquid form, it is known as bitumen emulsion and is companymonly known as bitumen when it is available in the solid form and both the companymodities are understood in the same manner in the companymercial world and the end use is the same and, therefore, the rate of tax to be determined has to be the same as prescribed for bitumen.
Being aggrieved by the order dated 23.1.1999, the respondent preferred Appeal No.
It filed an application before the Commissioner, Commercial Taxes, Lucknow, U.P. under Section 59 of the VAT Act seeking a clarification about the rate of tax applicable to the sales of bitumen emulsion.
Before the tribunal, the assessee appellant produced reports from Harcourt Butler Technical Institute, Kanpur to bolster the stand that there is numberdifference between the two companymodities and they are to be categorised as one item, if companymon parlance test is applied.
Dipak Misra, J. In this appeal, by special leave, the Revenue has called in question the legal sustainability of the judgment and order passed by the High Court of Judicature at Allahabad in Commercial Tax Revision number 1156 of 2009 preferred by the assessee respondent under Section 11 of the U.P. Trade Tax Act, 1948 for brevity, the 1948 Act read with Sections 81 and 58 of the VAT Act, 2008 for short, the VAT Act whereby the learned Single Judge has allowed the revision negativing the stand put forth in opposition by the State to the stance highlighted by the assessee.
