Karnataka High Court: A Division Bench of S. Sujatha and Ravi V Hosmani, JJ., allowed the revision petition and set aside the impugned judgment by the Tribunal.

 The facts of the case are such that the assessee, a registered dealer under the provisions of KVAT Act was engaged in the manufacture and sale of sand which is marketed as ‘Robo Sand’ during the tax period April 2014- March 2015. The assessee was collecting and discharging the VAT on the sales of ‘manufactured sand’ (M-sand) at the rate of 5.5% by classifying it under Entry 83 of Third Schedule of KVAT Act. The reassessment proceedings for the tax periods under consideration were concluded classifying the M sand under Entry 83 of Third Schedule of the KVAT Act. Additional Commissioner of Commercial taxes exercising the powers under Section 63A of the KVAT Act initiated the proceedings and rejected the claim of the assessee and raised additional demand. Being aggrieved, the assessee preferred appeal before the Tribunal which was thereby dismissed. Assailing this, present revision petition was filed.

Counsel for the petitioners Mr. Ravi Raghavan and Mrs. Mahwash Fatima submitted that Entry 83 of Third Schedule of the KVAT Act is wide enough to cover all types of sands. Merely relying upon the notification dated 30-03-2015 issued by the Government of Karnataka in exercise of powers under Section 4 (3) of the KVAT Act, reducing the rate of tax on M Sand to 5%, Revisional Authority revised the assessment order. The Notification ought to be seen as a clarification and has to be given retrospective effect.

Counsel for the respondents Mr. Jeevan J. Neeralgi submitted that the Tribunal has rightly rejected the appeal since M sand sold by the assessee is understood in common parlance as ‘manufactured sand’ and not as ‘ordinary sand’ i.e. ‘river sand’. It was further submitted that prior to the date of the notification the ‘manufactured sand’ was liable to be taxed under the residuary entry at 14.5%. In order to reduce the rate of tax on sale of M sand, the Government of Karnataka has issued a Notification, thereby reducing the rate of tax to 5.5%.

The Court observed that legislature with all its wisdom has brought ‘sands and grits’ under Entry 83 of Third Schedule, fixing the rate of tax at 5/5.5%. It is well-settled law that common parlance test is the best way to classify the goods vis a vis the determination of rate of tax.

The Court observed that it is trite that the commodity could be classified based on how ordinarily or commonly it is known and its purpose and use. The ‘Robo sand’ i.e. ‘manufactured sand’ and the ‘river/natural sand’ is found to be having similar physical properties as per the report of a project sponsored by the Department of Mines and Geology, Government of Karnataka and conducted by the Department of Civil Engineering of the Indian Institute of Science placed on record by the assessee. Hence, the M-sand cannot be considered as excluded from Entry 83 of Third Schedule of the KVAT Act.

The Court further observed that the ‘common parlance test, ‘marketability test; ‘popular meaning test’ are all tools for interpretation to arrive at a decision on proper classification of a tariff entry. The test, as to what a common man viewing or dealing with the article will understand it to be, would be relevant.

The Court observed that using the common parlance/trade parlance /popular meaning test and applying the user theory, ‘manufactured sand’ would certainly fall under the entry ‘sand’ as it stood during the relevant period. The Notification dated 31-03-2015 is only clarificatory and that would not disentitle the assessee to claim the reduced rate of tax at 5/5.5% under Entry 83 of the Third Schedule of the KVAT Act.

The Court thus held “The assessing authority is directed to recomputed the tax on the ‘M-sand’ sold by the assessee as the goods falling under Entry 83 of the Third Schedule of the KVAT Act for the relevant tax periods in question.”

[Robo Silicon Pvt. Ltd. v. State of Karnataka, S.T.R.P. No. 24/2019, decided on 23-09-2021]

Arunima Bose, Editorial Assistant has reported this brief.

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