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The State of Tamil Nadu Vs. Universal Agencies - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case NumberTax Case No. 9 of 1978 (Revision No. 7 of 1978)
Judge
Reported in[1984]56STC269(Mad)
ActsTamil Nadu General Sales Tax Act, 1959 - Sections 7A
AppellantThe State of Tamil Nadu
RespondentUniversal Agencies
Appellant AdvocateK.S. Bakthavatsalam, Additional Government Pleader
Respondent AdvocateGopinath, Adv. for ;C.S. Chandrasekara Sastri, ;C. Venkataraman and ;C. Natarajan, Advs.
Cases ReferredMadras Division v. Manakchand
Excerpt:
.....- section 7a and entry 41 of schedule 1 to tamil nadu general sales tax act, 1959 - whether copper wire manufactured and sold could be brought in entry 41 - limiting factor which restricted items of electrical goods to those which cannot be used except with application of electrical energy deleted - all goods which come under expression 'electrical goods' will come within entry 41 - question of dominant or substantial use of article alone will decide question as to whether article will fall under entry 41 or not - matter remitted to investigate use of wire for earthing purpose dominant and substantial or not. - - a comparison of entry 41 as it exists now with the same provision before its amendment will clearly indicate that the amendment is intended to bring in more articles under..........the assessee is manufacturing alloy copper wires. it is the case of the assessee that the copper wire manufactured by it cannot be used as electrical wire and that it can be used only for earthing purposes. it is also the assessee's case that the alloy copper wires manufactured by it are mainly sold for other uses or purposes, and therefore, the wires manufactured by it cannot be brought under the term 'electrical goods' referred to in entry 41. according to the assessee the alloy copper wires manufactured by it are used widely in the manufacture of water tanks, copper rivets, nails, vessels, handles, bolts and nuts, etc., and that in fact the wires sold to the electrical dealers or electrical contractors form only an insignificant part of their sales, and therefore, the wires.....
Judgment:

Ramanujam, J.

1. The two points that arise for consideration in this tax case are :

(1) Whether the purchase turnover under section 7A of the Tamil Nadu General Sales Tax Act, 1959, could be included in the total turnover; and

(2) Whether the copper wire manufactured and sold by the assessee could be brought in under entry 41 of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959.

2. So far as the first question is concerned, we have the recent decision of the Full Bench of this Court in T.C. No. 731 of 1977 - State of Tamil Nadu represented by Deputy Commissioner (C.T.), Madras Division v. Manakchand [1984] 56 STC 237 (FB) - dated 3rd February, 1983, holding the purchase turnover taxable under section 7A of the Tamil Nadu General Sales Tax Act, 1959, should also form part of the total turnover of the assessee. Following the said decision of the Full Bench we have to hold that the purchase turnover of the assessee taxable under section 7A of the said Act will have to be included in the total turnover. The Tribunal had held that the purchase turnover under section 7A of the said Act cannot be included in the total turnover of the assessee and this view is quite inconsistent with the view expressed by the Full Bench in (T.C. No. 731 of 1977) State of Tamil Nadu represented by Deputy Commissioner (C.T.), Madras Division v. Manakchand [1984] 56 STC 237 (FB) which has been rendered subsequent to the decision of the Tribunal. The decision of the Tribunal on that aspect of the case is therefore set aside.

3. Coming to the second question, it is seen that the assessee is manufacturing alloy copper wires. It is the case of the assessee that the copper wire manufactured by it cannot be used as electrical wire and that it can be used only for earthing purposes. It is also the assessee's case that the alloy copper wires manufactured by it are mainly sold for other uses or purposes, and therefore, the wires manufactured by it cannot be brought under the term 'electrical goods' referred to in entry 41. According to the assessee the alloy copper wires manufactured by it are used widely in the manufacture of water tanks, copper rivets, nails, vessels, handles, bolts and nuts, etc., and that in fact the wires sold to the electrical dealers or electrical contractors form only an insignificant part of their sales, and therefore, the wires manufactured by it cannot be brought under entry 41. The Tribunal has accepted the said contention of the assessee and has held that it is only the wire which can be used as electrical wire, i.e., used for transmission of the energy, that can be brought under entry 41, and the alloy copper wires manufactured by the assessee which cannot be used as electrical wire for the transmission of the energy, the same cannot be taken to fall under entry 41. The reason given by the Tribunal for coming to that conclusion is that as per entry 41 which stood before its amendment by Tamil Nadu Act 15 of 1975 any article the use of which cannot be had except with the application of electrical energy fall within the term 'electrical goods' and the same position continues even after the amendment brought in by Tamil Nadu Act 15 of 1975 with effect from 3rd March, 1975. Entry 41 as it stood before the amendment and the same subsequent to the amendment are as follows :

4. Before the Amendment :

'Serial Description of the goods Point of Rate of numberlevy tax.(1) (2) (3) (4) 41 All electrical goods, machinery, At the point 7 perinstruments, apparatus, appliances, of first sale cent.'accessories and component parts in the State.(either sold as a whole or inparts) including fans, lightingbulbs, electrical earthernwares,porcelain and all other instruments,apparatus, appliances, accessoriesand component parts, the use ofwhich cannot be had except with theapplication of electrical energy. Subsequent to the amendment : '41 All kinds of electrical goods do 9 per(other than those specified cent.'elsewhere in this Schedule),including wires, holders, plugs,switches, casings, cappings,reapers, bends, junction boxes,meter boxes, switch boxes,meter boards, switch boards,electrical earthernwares andporcelainware.

5. The Tribunal has proceeded to assume that the object of the amendment is only to increase the rate of tax and not to bring any new items in entry 41. We do not see how such an assumption came to be made. A comparison of entry 41 as it exists now with the same provision before its amendment will clearly indicate that the amendment is intended to bring in more articles under that item. The expression 'the use of which cannot be had except with the application of electrical energy' has been deleted in the present entry 41. Therefore, the limiting factor in old entry 41 which restricted the items of electrical goods to those articles the use of which cannot be had except with the application of electrical energy is no longer there and all goods which will come under the expression 'electrical goods' will come within entry 41 and have to be taxed at a single point at 9 per cent. Whatever be the objects and reasons for bringing the amendment by Tamil Nadu Act 15 of 1975, the expression or language actually used by the legislature in the entry will have to be understood and given effect to. As it is, after the amendment, entry 41 takes in all kinds of electrical goods, including wires, holders, plugs, switches, casings, cappings, reapers, bends, junction boxes, meter boxes, switch boxes, meter boards, switch boards, electrical earthernwares and porcelainware. As it is, even the electrical goods the use of which can be had even without the application of electrical energy can be brought under entry 41. Therefore, the wire used for earthing purposes will clearly fall within the definition of 'electrical goods'. On this reasoning the 'wires' referred to in entry 41 not only includes the wires used for the transmission of energy but also the wires used for earthing purposes. We are, therefore, not inclined to agree with the view taken by the Tribunal that the wires used for earthing purposes cannot be taken to be covered by the new entry 41. But that does not conclude the question before us. The difficulty in this case is that the alloy copper wires manufactured by the assessee is said to be widely used for other purposes as well. The assessee does not dispute the fact that he has sold a portion of the manufactured alloy copper wires to electrical dealers and electrical contractors for use as earth wires. But what he contends is that the substantial use of the wire manufactured by it is not earthing, but for other purposes referred to above. As a matter of fact in this case it is seen that in the pre-assessment notice issued by the assessing authority, he has proceeded on the basis that the entirety of the assessee's sales were to electrical traders or electrical contractors. However, he himself in the final assessment order has taken the view that most of the wires manufactured by the assessee were sold to the electrical dealers. Therefore, the assessing authority himself is not clear as to whether the sales of wires by the assessee are substantially for earthing purposes and as such they are sold as electrical goods or whether they are substantially for other purposes. The Appellate Assistant Commissioner as well as the Tribunal have not given any finding on the question as to whether the substantial user of the wire manufactured is earthing or whether such user is only ancillary. The Tribunal, as already stated, went on a different footing and held that the wire manufactured by the assessee will not fall in entry 41 as electrical goods, since the use of the wire manufactured cannot be had except with the application of electrical energy. We are not agreeing with that view and we have already held that not only electric wires 'but also wires' used for earthing will come under electrical goods so as to attract entry 41. The Tribunal, therefore, did not go into the question as to what is the substantial use of the wire manufactured and sold by the assessee. If the article manufactured is substantially used for earthing purposes, then to whomsoever it is sold it should be brought in under entry 41. If it is found that the user of the wire as earthing wire is not a substantial user and the main use is different, then it cannot be brought under entry 41. Since the question of dominant or substantial use of the article manufactured by the assessee has not been gone into in this case which alone will decide the question as to whether, the manufacture by the assessee will fall under entry 41, we will have to remit the matter to the assessing authority to investigate into that matter and finalise the assessment on the basis of his finding on the question as to whether the use of the wire for earthing purposes is a dominant or substantial use.

6. The tax case is accordingly allowed to the extent indicated above and the matter is remitted to the assessing authority. There will be no order as to costs.


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