Varun Road Lines Pvt. Ltd. vs Commissioner of Commercial Tax and Others

Arun Mishra, J.

The writ petition has been filed by the Petitioner assailing order (P1) dated July 28, 2006 received by the Petitioner on November 24, 2006 confirming the penalty imposed by Respondent No. 3 u/s 45D of the Madhya Pradesh Commercial Tax Act, 1994 (hereinafter referred to as, "the Act"). The Petitioner is also challenging order (P2) dated October 22, 2005, passed by Respondent No. 3 imposing penalty u/s 45D of the Act for want of declaration as required u/s 45D(1) of the Act.

The question involved in the writ petition is whether refrigerators can be termed as electric goods.

The Petitioner is a transporter carrying on 48 refrigerators from Dasna, District Gaziabad to Bhopal. The goods were being transported under stock transfer by M/s. L.G. Electronics (India) Ltd. to their Bhopal Branch. Respondent No. 3 intercepted the truck at the time of entry in the city of Bhopal in which the aforesaid consignment was being transported and for want of declaration as contemplated u/s 45D(1) of the Act levied penalty of Rs. 1,66,650.

The Petitioner submits that the State Government in exercise of powers conferred by virtue of Section 45A(4) notified 34 goods vide notification (P3) dated August 2, 2005. The said notification does not require presentation of declaration form to the check-post officer in case of transportation of refrigerators. The refrigerators have not been notified for the purpose of Section 45A(4), hence the Petitioner was not required to carry the declaration and to present the same. Treating the refrigerators as electrical goods, penalty u/s 45D of the Act has been fastened for want of declaration u/s 45A(5) of the Act. In Second Schedule, there is separate and independent entry of refrigerator at serial No. 37 of Part 3 of the Second Schedule. The electrical goods have been shown separately and independently under Part IV and attract commercial tax at eight per cent. The Schedule has been framed as per Section 9 which is a charging provision for the purpose of executing the commercial tax. The Petitioner submits that by the aforesaid Schedule of the charging section separately defining the refrigerators and electrical goods, the refrigerators cannot be construed as electrical goods and vice versa. The intention of the Legislature is to treat them separate items. The decision in Phillips India Ltd. v. Commissioner of Commercial Tax (2005) 7 STJ 705 has been wrongly interpreted while making the assessment. Though declaration was issued for two trucks but refrigerators in fact were dispatched in three trucks along with the other goods, therefore, one truck was not carrying the declaration, hence imposition of penalty could not be said to be in accordance with law. It is also submitted by the Petitioner that in accordance with circular (P6) dated October 17, 2002 on technical issues, the truck should not be held up and opportunity should have been given to submit the declaration form, therefore, levy of penalty under the aforesaid circumstances is arbitrary and bad in law.

In the return filed by the Respondents it is submitted that the electrical goods have been notified at serial No. 16 of notification dated August 2, 2005 and October 26, 2005. The electrical goods have a wider connotation. The definition of electrical goods is inclusive one, it includes refrigerators also. The appellate court has also opined that the refrigerator is included in the electrical goods. The apex court in Commissioner of Sales Tax, Madhya Pradesh, Indore v. Jaswant Singh Charan Singh (1967) 19 STC 469 (MP) and Nat Steel Equipment Pvt. Ltd. Vs. Collector of Central Excise, has held that the domestic electrical appliances will fall within the category of electrical goods. The object of the Second Schedule is quite different, same cannot be utilised for the purpose of declaration u/s 45A which is altogether an independent provision. Some of the electrical goods are required to be charged with lesser percentage of tax than the refrigerator and that is the precise reason that the small electrical goods and refrigerators have been separated in the Second Schedule which cannot inure to the benefit of the Petitioner. The notification (A3) contains list of 34 items. The notification u/s 45A contains the names of main items and species coming under the main items have not been named. The list has to be given wider meaning. It was necessary for the Petitioner to produce the declaration in case goods were carried in two trucks. The Petitioner on one hand submits that it was not necessary to carry the forms and on the other hand contends that forms were carried, in fact declaration forms were not carried, hence no case for interference in the writ petition is made out.

Shri Manoj Munshi, learned Counsel appearing for the Petitioner, has submitted that the refrigerators cannot be covered in the notification dated August 2, 2005 in item 16 which provides for electrical goods, cables and electric wires. In the said notification from entry 1 to 12 words "All kinds of" have been mentioned but in entry 16 words "All kinds of" have not been used, thus intention of the notification is confined to the electrical goods and it cannot be applied to the refrigerators. The counsel has referred to certain decisions also, to be referred later. Counsel has submitted that the declaration is not only the requirement but invoice, bill and challan are also necessary to be presented. He has relied upon circular (A5) dated October 17, 2002 to contend that even when declaration was not carried, it was not proper to initiate the proceedings for penalty. Opportunity was required to be given to submit declaration, thus imposition of the penalty was uncalled for.

Shri Deepak Awasthi, learned Government Advocate for the Respondents, has supported the order. He has submitted that washing machine has been held to be an electronic goods by the apex court in M/s. B.P.L. Ltd. Vs. State of A.P., . He has further submitted that the Second Schedule prepared u/s 9 cannot be invoked to take the submission home by the Petitioner. The Second Schedule has different field to operate whereas notification dated August 2, 2005 issued u/s 45A is attracted in the instant case. It was necessary to carry the declaration as per mandate of Section 45A of the Act. At no point of time the declaration was submitted, it has not been filed so far, as such the Petitioner cannot raise the plea that opportunity was not given to submit the declaration provided u/s 45A(5) of the Act.

The main question for consideration is whether refrigerators can be said to be electric goods and are included in entry 16 of the notification dated August 2, 2005 issued u/s 45A(4) of the Act.

In item No. 16 of the notification dated August 2, 2005 issued u/s 45A(4) the entry is as follows:

Notification No. FA-3-29/2004/I/V(37).--In exercise of the powers conferred by Sub-section (4) of Section 45A of the Madhya Pradesh Vanijyik Kar Adhiniyam, 1994 (No. 5 of 1995) and in supersession of this Department''s Notification No. A-5-4-2000-ST-V(59), dated May 6, 2002, the State Government, hereby, notifies the following goods specified in the table given below for the purpose of the said subsection, namely:

Table

Sl. No.

Description of goods

(1)

(2)

Electrical goods, cables and electric wires

There are two essential requirements which have been insisted for the goods being electrical goods;

(i) they must be used by electrical energy

(ii) they must answer the description of electrical goods.

The apex court in M/s. B.P.L. Ltd. Vs. State of A.P., has laid down that fully automatic washing machine can be regarded as electronic goods. The concerned notification required that an item can be regarded as an electronic goods if its all functions which are required to be performed by that equipment or appliance are performed or controlled electronically by microprocessor. The functioning of washing machine is automatic. Data is fed into the machine and thereupon it is the microprocessor, which controls and directs the carrying out of the various functions of the machine, which results in the clothes being washed in the desired manner. Even though washing machine is not specifically mentioned as one of the items in State list for purpose of concessional rate of tax on electronic goods.

In N.D. Narayanan Nambiar v. State of Kerala (2001) 121 STC 537 (Kar), the High Court of Kerala considered the question whether mosquito repellants are electrical instruments or not. The court opined that in common parlance view mosquito repellants are not electrical goods. While making the aforesaid observation, it has been observed that refrigerator is working on electricity. In common parlance it is not treated as electrical goods so also grinders and mixies. As the question before the High Court of Kerala was not of refrigerator, the observation made with respect to refrigerators cannot be treated as the ratio of the decision. It was not the point involved in the aforesaid case. In William Jacks and Co. Ltd., Madras v. State of Madras (1955) 6 STC 301(Mad) the Madras High Court observed that it was neither possible nor desirable to prepare an exhaustive list of electrical goods. Nor was it possible to devise a formula of universal application to hold a particular goods as electrical goods. In Deputy Commissioner of Commercial Taxes, Madurai Division Vs. Ravi Auto Stores, it has been observed that merely because an article cannot be used without electricity it may not be decisive. Motorcar cannot be used without batteries, but on that count it could not be said that it is an electrical goods. The welding electrodes were also held not to be electrical goods.

In J.B. Advani-Oerlikan Electrodes Pvt. Ltd. v. Commissioner of Sales Tax (1972) 30 STC 337 (MP), the question arose for consideration whether electrodes are electrical goods or not. this Court opined that electrodes cannot be said to be electrical goods in real sense. The fact that rods cannot be used without electricity is not decisive to hold the articles as electrical goods. The aforesaid two tests were reiterated. In Commissioner, Sales Tax Vs. B.C.M. Franklin and Co., , it has been laid down that the welding electrodes are neither electrical goods nor electrical equipments. In Commissioner of Sales Tax Vs. Bharat Traders, the aforesaid two tests were laid down to find out whether a particular goods is electrical goods or not. Wooden gittis, switch-boards and battens were held not to be electrical goods. In Star Trading Co. (Private) Ltd. v. State of Bombay (1962) 13 STC 102 (Mom), the question arose whether the cooling plant used for mercerizing process by textile mill is a refrigerator or not. The High Court of Bombay considered the expression "refrigerator" as given in Oxford English Dictionary in the following terms: "Refrigerator: 1. That which refrigerates or cools. 2. An apparatus, vessel, or chamber for producing or maintaining a low degree of temperature ; especially any vessel, chamber or apparatus in which the contents are preserved by maintaining a temperature, near, at, or below freezing point, especially in the cold storage of food". The court held that it was not possible to hold that the cooling plant sold by the dealers was a "refrigerator" within the meaning of item 69 of Schedule B of the Bombay Act. In Deputy Commissioner of Agricultural income tax and Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. Chandra Corporation (1976) 37 STC 179 (sc), the High Court of Kerala has laid down that water coolers are not refrigerators and, therefore, do not come within the scope of entry 9 of the First Schedule to the Kerala General Sales Tax Act, 1963. Both water coolers and refrigerators are commonly understood in the commercial world as goods serving different purposes. They have popular and distinct meanings. Adopting the common parlance meaning, the aforesaid decision was rendered. In Deputy Commissioner of Sales Tax, Ernakulam v. Equipment Agencies (1981) 47 STC 68 (SC), the High Court of Kerala has laid down that the pumpsets, grinders, air-compressors, lathes, etc., which can be worked either with electricity or by diesel or steam power do not fall within the scope of the expression "electrical goods". In Karnal Machinery Store v. Assessing Authority, Karnal (1973) 31 STC 3 (Kar) , the High Court of Punjab and Haryana opined that monoblock pumping sets, the main purpose of which is to pump water, cannot be classed as electrical goods. The aforesaid two tests were observed and it has been held that the fact that electrical energy is necessary to operate the goods, is not decisive. In Jupiter Battery Works Vs. Commissioner, Sales Tax, the High Court of Allahabad held that the batteries would not fall within the terms "electrical goods". In Ramavatar Budhaiprasad Etc. Vs. Assistant Sales Tax Officer, Akola, , the apex court held that the word "vegetables" in item 6 of the Second Schedule of the Central Provinces and Berar Sales Tax Act, 1947, must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance.

In our opinion the refrigerator is not ousted from the purview of the electrical goods. It is operated by the electricity. The refrigerator is not only used by the electrical energy but answers the description of electrical goods. It is used for the domestic purpose and its functions are controlled by the electrical energy. The purpose of Section 45A of the Commercial Tax Act is to prevent or check evasion of tax under the Act. For this purpose, check-posts or barriers are erected at the notified places. The refrigerator is an item on which commercial tax is levied. In M/s. B.P.L. Ltd. Vs. State of A.P., the apex court has laid down the washing machine to be an electronic goods. The refrigerator on the parity of reasonings can be held to be an electrical goods as its functions are regulated by the electrical energy. The observation made in N.D. Narayanan Nambiar v. State of Kerala (2001) 121 STC 537 (Kar) by the High Court of Kerala that refrigerator is not an electrical goods, cannot be treated as ratio of the decision as question before the court was whether mosquito repellants are electrical instruments or not. In our opinion, no universal formula can be laid down to hold a particular goods as electrical goods. Similarly, decision in Deputy Commissioner of Commercial Taxes, Madurai Division Vs. Ravi Auto Stores, is with respect to motorcars. Only on the basis of the fact that it cannot be used without battery, it could not be held to be electrical goods. Motorcar is totally different item as such no parity can be drawn with the refrigerator, thus decision is of no help to the Petitioner. Similarly, cases of J.B. Advani Oerlikan Electrodes Pvt. Ltd. v. Commissioner of Sales Tax (1972) 30 STC 337 (MP) and Commissioner of Sales Tax, Lucknow v. B.C.M. Franklin and Co. (1973) 31 STC 251 (SC) are with respect to electrodes. The refrigerator being totally different item, no parity can be drawn on the aforesaid decision. In the case of Commissioner of Sales Tax Vs. Bharat Traders, the items involved were wooden gittis, switch-boards and battens, which could be used for different purposes and obviously these items could not be said to be electrical goods. In Star Trading Co. (Private) Ltd. v. State of Bombay (1962) 13 STC 102 (Mom)the question came before the court was whether the cooling plant used for mercerizing process by textile mill is a refrigerator or not, the question was not whether refrigerator is an electrical goods or not, thus the decision is of no help to the Petitioner. In Deputy Commissioner of Agricultural income tax and Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. Chandra Corporation (1976) 37 STC 179 (SC), it was laid down by the High Court of Kerala that water coolers are not refrigerators. Considering their functions and purposes it was held that water coolers are not included in the refrigerators. The question involved in the instant case is totally different. Similarly no sustenance can be derived by the decision of the High Court in Deputy Commissioner of Sales Tax, Ernakulam v. Equipment Agencies (1981) 47 STC 68 (SC)as that decision was with respect to pumpsets, grinders and air compressors which can be worked either by diesel or steam power in addition to electricity. The aforesaid decision cannot be pressed into service for the reason that refrigerators are operated exclusively by electrical energy. The reasoning given cannot apply to the facts of the instant case. In Karnal Machinery Store v. Assessing Authority, Karnal (1973) 31 STC 3 (Sc), again the case was that of monoblock pumping sets, which could be operated by various energies. Similarly in Jupiter Battery Works Vs. Commissioner, Sales Tax, the question was with respect to batteries, which is totally distinguishable as batteries can operate otherwise than by electrical energy.

The submission raised by the learned Counsel appearing for the Petitioner that the term "all kinds of" which is mentioned in the notification dated August 2, 2005 as against entry Nos. 1 to 12 does not find place as against entry No. 16. The use of term "electrical goods" itself is of wider connotation. Its meaning cannot be confined by non user of the term all kinds of. When the goods answer description of electrical goods and used by electrical energy, obviously it falls within the ken of expression "electrical goods" used in entry 16 of the notification issued u/s 45A(4) on August 2, 2005. It is clear that u/s 45A of the Act with a view to prevent or check evasion of tax under the Act, check-posts or barriers can be set up or erected at notified places/under Section 45A(4), every person transporting such goods as may be notified by the State Government in this behalf shall carry with him an invoice, bill or challan or any other document, by whatever name called, issued by the consignor of the goods giving such particulars as may be prescribed. Section 45A(5) provides that every transporter shall deliver to the check-post officer a declaration duly signed by the consignor in such manner, in such form and containing such particulars as may be prescribed. Section 45A(5A) provides that the form of declaration specified in Sub-section (5) shall be obtained by a registered dealer in the prescribed manner and on payment of the prescribed fee. Section 45A(6) provides for checking of the declaration and documents. Considering the purpose for which the notification has been issued, we can give (sic cannot give) restrictive meaning to the term electrical goods. The submission raised by the Petitioner''s counsel that the Second Schedule which has been prepared to further the charging Section 9 of the Act provides refrigerator as an independent item for the purpose of taxation at item No. 37 of Part 3 of the Second Schedule whereas electrical goods have been separately shown under Part IV. As different rates have been prescribed for electrical goods and refrigerators, the aforesaid distinction has been made in the Second Schedule, however, the purpose of Section 45A is to prevent or check the evasion of tax under the Commercial Tax Act. In the notification issued u/s 45A(4) on August 2, 2005 the words used are electrical goods, cables and electric wires, thus all electrical goods which are operated by the electricity and answers such description of electrical goods, are included in the electrical goods. It was not necessary to mention the refrigerator independently as that is included in the term electrical goods. The intendment of the notification is to prevent or check the evasion of tax, which has to be given full effect to. As the refrigerator is chargeable to the commercial tax, obviously this evasion has to be checked and interpretation of entry 16 has to be made in such a manner so as not to defeat the intendment of the items included in the Second Schedule for the purpose of taxation. Different items have been detailed under separate heads in the Second Schedule as per Section 9 prescribing different rates for different items, it was not necessary to classify and mention different articles, when description could be made by term electrical goods, it would include all the electrical goods. There is no necessity to mention each and every goods independently.

Coming to the submission raised by learned Counsel that as per circular dated October 17, 2002 when the declaration was not carried, opportunity ought to have been granted before initiating the proceedings for penalty. In our opinion, the aforesaid submission cannot be accepted and the said circular cannot be pressed into service in the instant case. Case of the Petitioner was that consignment was carried in two trucks, third truck was used for carrying the same consignment, declaration was not carried along with the said truck, is not in dispute whereas said truck ought to have carried the declaration which is meant for preventing or checking evasion of tax. The declaration was not produced subsequently also at any point of time. It was not the case that the Petitioner prayed for opportunity to produce the declaration and it was not allowed. The Petitioner, having failed to file the declaration at any stage, cannot take the shelter of aforesaid circular. Moreover, it was necessary to carry the declaration for the consignment which was taken in the vehicle in question. The facts for applicability of the aforesaid circular have not been established.

In view of the aforesaid discussion, we have no hesitation in holding that refrigerator is covered under the electrical goods in item 16 of the notification issued u/s 45A(4) on August 2, 2005.

Resultantly, we find the petition to be meritless, it deserves dismissal, same is hereby dismissed. Parties to bear their own costs as incurred of this petition.