[2013] 52 NTN DX 51
[ALLAHABAD HIGH COURT]
Hon'ble Dr. Satish Chandra, J.
Trade Tax Revision Defective No. - 77 of 2012
Commissioner Commercial Tax Commercial Tax Bhawan Gomti
vs.
Malik Needle & Allied Industries Pvt. Ltd. Ghaziabad
Date of Decision
For the Petitioner
For the Respondent
: 20th May, 2013
: C.S.C.
: Sh. P. Agarwal, Advocate
[A]
Entries in the Schedule - Classification of Goods - Embroidery Needles - Hand –
Sewing Needles - U. P. Value Added Tax Act, 2008 Schedule II Part A Sl.45 - Hand sewing
Needle and falls under entry of
Embroidery, Embroidery Needle at Sl. No.45 of
Schedule II Part A of U. P. Value Added Tax Act, 2008 - U. P. Value Added Tax Act, 2008
and
is taxable @ of 4% - Commissioner determined under Section 59 that Hand – sewing
Needle is not covered by Schedule –II, Part A, Serial No. 45 under the entry of Embroidery,
Embroidery Needle and is an unclassified item taxable @ of 12.5% -Tribunal, however, observed
that hand sewing needle is identical to other needles used for stitching and embroidery of the
cloth - So, it is covered by the said entry - On revision by the department - High Court - The
'Turpai is a temporary stitching made by the hand without the help of any machine - The
purpose of both the needles is to stitch, may be for joint of the cloth or for creating a
design - But the utility of both the needles are almost identical - Hence, the same cannot
be distinguished - By keeping in mind the doctrine of ejusdum genris, both the items are
'alike' - So, the same are covered by the said entry (supra) and can be treated as
classified item for the purpose of commercial tax - Department revision dismissed.
[B]
Words and Phrases - Ejusdum genris, docrine, thereof - When particular words
forming part of the same class or same category are followed by the general words then the
general words must be construed in the context of the particular words - This is called Ejusdum
genris rule.
JUDGMENT
(Hon'ble Dr. Satish Chandra, J.)
Present revision has been filed by the department under Section 58 of the U.P. Value
Added Tax Act, 2008, against the judgment and order dated 03.06.2009 passed by the U. P.
Commercial Tax Tribunal, Lucknow in Second Appeal No.28 of 2008.
The brief facts of the case are that the assessee is engaged in the manufacturing and
sale of the various kind of needles used for stitching, embroidery on cloth etc. On 28.03.2008,
the assessee has move an application under Section 59 of the U.P. VAT Act to know the rate of
tax in respect of the hand-sewing needles. The Commissioner, vide his order dated
25.06.2008, observed that the same is not covered by Schedule-2, Part-A, Serial No.45. So,
the said item is an unclassified and the tax is leviable @ 12.5% . The assessee claimed that
being a needle, it is covered under the said entry. So, the tax is leviable @ 4% . Not being
satisfied, the assessee has filed an appeal before the Tribunal who vide impugned order
observed that hand sewing needle is identical to other needles used for stitching and
embroidery of the cloth. So, it is covered by the said entry. Not being satisfied, the department
has filed the present revision.
With this background, Sri Sanjeev Sankhdhar, learned counsel for the department
has justified the order passed by the Commissioner. He submits that the hand sewing
machine can be used only for stitching and the needle used for embroidery has a different
Copy Right: P & M Technologies : Email.: [email protected]
character and that can not be used as
different.
a hand-sewing needle. Both the
needles are
On the other hand, Sri Pradeep Agarwal, learned counsel for the assessee submits that
both the needles are used for cloth, stitching and embroidery. The thread is moving one hole
to adjacent hole. If the colour of the thread is different, then it is visible and may create a
design and if the colour is similar to the cloth then it can be used for the stitching
purposes. Lastly, he submits that both the needles are the same in character and utility.
After hearing both the parties and on perusal of the records, it appears that 'Turpai'
can be made by both the needles. The 'Turpai is a temporary stitching made by the hand
without the help of any machine. The purpose of both the needles is to stitch, may be for
joint of the cloth or for creating a design. But the utility of both the needles are almost
identical. Hence, the same can not be distinguished. By keeping in mind the doctrine of
ejusdum genris, both the items are 'alike'. So, the same are covered by the said entry (supra)
and can be treated as classified item for the purpose of commercial tax.
In view of above, there is no merit in the revision filed by the department and the same
is hereby dismissed. No cost.
……………………………
Copy Right: P & M Technologies : Email.: [email protected]