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Assistant Commissioner, Special Circle-i, Commercial Taxes Deptt. Jaipur. Vs. M/S Bits and Bites, Jaipur and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtRajasthan Jaipur High Court
Decided On
Case NumberS.B. Sales Tax Revision Petition No.101/2002.
ActsAndhra Pradesh General Sales Tax Act - Section 8.
AppellantAssistant Commissioner, Special Circle-i, Commercial Taxes Deptt. Jaipur.
RespondentM/S Bits and Bites, Jaipur and anr.
Appellant AdvocateMr. R.B. Mathur, Adv.
Respondent AdvocateMr. Nitin Jain, Adv.
Cases ReferredStandard Appliances v. State of Tamil Nadu
ection 11 (2): [b.n. agrawal, g.s. singhvi & aftab alam, jj] contribution due from employer payment priority given by section 11(2) held, the priority given to the dues of provident fund etc., in section 11 is not hedged with any limitation or condition. rather, a bare reading of the section makes it clear that the amount due is required to be paid in priority to all other debts. any doubt on the width and scope of section 11 qua other debts is removed by the use of expression all other debts in both the sub-sections. this would mean that the priority clause enshrined in section 11 will operate against statutory as well as non-statutory and secured as well as unsecured debts including a mortgage or pledge. sub-section (2) was designedly inserted in the act for ensuring that the..........was no question of going to the residuary entry of 10%. he also emphasized that since the words parts & accessories thereof both have been used in the relevant entry no.50, quoted above, even if ups and cvt do not form part of computer as such, but only aid or support the computer for their operations, they can certainly be described as 'accessories' thereof and merely because these items can be used in other electrical equipments like refrigerators etc. also it does not mean that they get excluded from the ambit and scope of word 'accessory of computer'. he also submitted that major and common use of these goods ups and cvt is with the computers and, therefore, as per common parlance or trade parlance test, these items deserve to be taxed at concessional rate @ 4%.17. having given my.....
1. These two revision petitions have been filed by the Revenue being aggrieved by the order of learned Tax Board dated 23.04.2002 rejecting the Revenue's appeals against the assessee.

2. Learned Tax Board by its impugned order upholding the order of first appellate authority dated 03.07.2000 held in favour of assessee, a registered dealer of computer and computer accessories and their parts, that goods in question, namely, CVT (Constant Voltage Transformer) and UPS (Uninterruptible Power Source) sold by the assessee are taxable @ 4% as accessories of computer and not under residuary entry @ 10% in the assessment years 1995-96 and 1996-97. The Assessing Authority had imposed 6% difference tax on these goods, namely, CVT(s) and UPS in the hands of the assessee by the impugned assessment orders, against which both the appeals by the higher appellate forum were decided in favour of assessee. Hence, these revision petitions at the instance of Revenue.

3. Learned Tax Board in its impugned order has relied upon two Supreme Court's decisions in favour of assessee to arrive at the aforesaid conclusion viz. (i) Union Carbide India v. State of Andhra Pradesh reported in (1995) 98 STC 1 (SC), and (ii) Mehra Brothers v. Joint Commercial Officer, Madras reported in (1991) 80 STC 233 (SC) = (1991) 1 SCC 514.

4. The question of law, which arises for consideration by this Court is as to whether these two commodities CVT and UPS were rightly held by the appellate authorities below as taxable @ 4% as 'accessories of computers' or whether they would be taxable @ 10% in the general residuary entry of the relevant notification dated 27.03.1995, applicable for these two assessment years.

5. In order to apply the law to the facts of the present case, it would be appropriate to first understand as to what these two commodities are. From Wikipedia, the free encyclopedia downloaded from the Internet, defines UPS in the following term: An Uninterruptible Power Supply, also Uninterruptible Power Source, UPS or battery/flywheel back, is an electrical apparatus that provides emergency power to a load when the input power source, typically the utility mains, fails. A UPS differs from an auxiliary or emergency power system or standby generator in that it will provide instantaneous or near-instantaneous protection from input power interruptions by means of one or more attached batteries and associated electronic circuitry for low power users, and or by means of diesel generators and flywheels for high power users. The on-battery runtime of most uninterruptible power sources is relatively short 5-15 minutes being typical for smaller units but sufficient to allow time to bring an auxiliary power source on line, or to properly shut down the protected equipment. While not limited to protecting any particular type of equipment, a UPS is typically used to protect computers, data centres, telecommunication equipment or other electrical equipment where an unexpected power disruption could cause injuries, fatalities, serious business disruption or data loss. UPS units range in size from units designed to protect a single computer without a video monitor (around 200 VA rating) to large units powering entire data centres, buildings, or even cities.

6. The CVT (Constant Voltage Transformer) is understood to mean as per aforesaid source, Wikipedia as under:

The AC mains power the input winding which is widely separated physically from the isolated output winding. The input winding normally runs at very moderate Flux linkage levels. The output winding exhibits an intrinsic energy storage characteristic in conjunction with the main capacitor, and this energy storage produces a self generated AC flux field which is indirectly excited from the input winding. The result:

Instantaneous voltage regulation. No effect of input Transient and spikes on the output. Sinusoidal output waveform. A perfect answer and remedy for all types of electronic equipment.

Salient features:

No semiconductors or moving parts used, hence very high reliability. Intrinsic current limiting and short circuit protector Output voltage correction within Cycle (10 msecs.) from no load capability. Short term over load capability Energy storage for lines loss up to 3 msecs. at typical loads. Higher input voltage control range, for loads less than rated load Very high line transient/spike rejection capability and excellent input to output isolation characteristic

7. The relevant tax rate entry No.50 in the notification (Serial No.968 S.O. 399) dated 27.03.1995 is reproduced herein below:

50. All types of Computers, Computer Software, Electronic Typewriters, Black & White TC, Telecommunication and sound transmitting equipments, Electronic Exchanges and Switching Equipments including parts and accessories thereof. ..... 4% The Entry No. 100 relating to residuary entry read as under:

100. General rate, that is, all goods that are not covered by items 1 to 99. ............ 10%

8. The commodities viz. CVT and UPS are not specifically mentioned in any other entry of the Notification dated 27.03.1995, which enumerates 99 specific entries and one residuary entry. However, the entry No.83 relating to electrical goods is also reproduced here-under for comparison purposes. 83 (a). All kinds of Electrical goods including Casing, Electrical Fans, Lighting bulbs, Electric earthenware, Electrical porcelain ware, and parts and accessories thereof.

(b) Electrically operated anti-mosquito devices and repellents used therein, Room freshners including those operated eclectically or with manual sprayers.

(c) Electronic home appliances including parts and accessories thereof.

9. The words parts and accessories thereof have been commonly used in some other entries also in the said notification. The significance of using both these terms parts and accessories thereof would be narrated shortly hereinafter.

10. Before proceeding further, it is considered expedient to discuss the various judgments cited at bar with the support of which learned counsels raised their respective contentions, which are also being discussed herein below. In the leading case on the interpretation of the word 'accessories' in Annapurna Carbon Industries Co. v. State of Andhra Pradesh reported in (1976) 37 STC 378 (SC), the three Judges Bench of Hon'ble the Supreme Court in the judgment authored by Justice Beg, held that arc carbons also known as cinema arc carbon and used in the projectors for exhibition of films fell within Entry No.4 of the first schedule of Andhra Pradesh General Sales Tax Act, 1957 which read as under: Cinematographic equipment, including cameras, projectors, and sound recording and reproducing equipment lenses, films and parts and accessories required for use therewith.

The Apex Court held that when it was intended to confine the entry to particular gadgets and 'parts thereof' the entry said so and even where an entry relates to parts manufactured for use of a particular kind of instrument or gadget only, the article manufactured to serve as a part of a particular kind of apparatus, would not cease to be covered by the intended entry simply because a purchaser makes some other use of it. We have to find the intention of the framers of the schedule in making the entry in each case and the best guide to their intentions is the language actually employed by them. The Court further held that the term 'accessory' is used in the schedule to describe the goods, which may have been manufactured for use as an aid or addition. Quoting from the Websters 3rd new international dictionary, the definition of the word 'accessory' was defined as an object or device that is not essential in itself but that adds to the beauty, convenience, or effectiveness of something else. The Court thus held that where the entry includes parts as well as accessories, which are required for use in projectors or other cinematographic equipment in view of main use of arc carbons to be production of powerful lights used in projectors in cinema(s), they would be taxable in the aforesaid entry No.4. The Court further held that fact that they can also to be used for searchlights, signalling, stage lighting, or where powerful lighting for photography or other purposes may be required, could not detract from the classification to which the carbon arcs belong.

11. Relying upon the aforesaid judgment of the Supreme Court in Annapura Carbon Industries (supra), in Mehra Brothers v. Joint Commercial Officer, Madras reported in (1991) 1 SCC 514, the Apex Court dealing with the case of car seat covers or upholstery held that car seats or upholstery are 'accessories of motor vehicles' and would be taxable under entry No.3 of the Schedule-I, which read as under: Motor Vehicles, Motor Cars, Motor Taxi Cars .... all articles (excluding batteries) adapted for use generally as parts and accessories of motor vehicles.

The Court in middle of para 4 also held that the same item may be an accessory of more than one kind of instrument. The deciding factor is that predominant or ordinary purpose is that it is used as an aid. It is not enough to show that the article can be put to other use also. It is its general or predominant user which determines the category in which an article will fall. Thus, the Court held that car seat covers or upholstery are the accessories as an addition; an adjunct; an accompaniment for comfortable use of the motor vehicles or for adding elegance to the seat.

12. The aforesaid judgment the Apex Court in Annapurna Carbon Industries (supra) has also been followed subsequently by the Hon'ble Supreme Court in the case of Union Carbide India Ltd. v. State of Andhra Pradesh reported in (1995) 98 STC 1 (SC) and the relevant portion from the head note is reproduced herein below for ready reference: Arc carbons are accessories required for use with cinematographic equipment, etc., and fall for taxation under entry 4 of Schedule I to the Andhra Pradesh General Sales Tax Act, 1957, even though they may be used up. They do not fall within entry 38. Annapurna Carbon Industries Co. v. State of Andhra Pradesh [1976] 37 STC 378 (SC) followed.

Primary cells or primary batteries or dry batteries or cells are understood in common parlance as well as in technology to be different from accumulators or storage cells. Prior to July 1, 1985 (i.e., prior to to the introduction of entry 152 relating to dry batteries or cells) they fell under item 38 of Schedule I to the Andhra Pradesh General Sales Tax Act, 1957, attracting a lesser rate of sales tax, if they were not marked for use with transistors. They did not fall under item 137. (viz., electrical storage batteries). Only those dry batteries or cells which were marked for use with transistors fell under entry 3 prior to September 1, 1976. This judgment was also relied upon by the learned Tax Board in the present case.

13. In Pragati Silicons (P) Ltd. v. Commissioner of Central Excise, Delhi reported in (2007) 9 Supreme Court Cases 470, the Hon'ble Supreme Court while dealing with the question relating to classification of goods plastic name plates for motor vehicles and held them as classified as accessory of motor vehicle and not merely as article of plastic. The relevant portion from para 21 of the judgment relying upon aforesaid three judgments cited (supra), is quoted below: An Accessory by its very definition is something supplementary or subordinate in nature and need not be essential for the actual functioning of the product. Nameplates add to the convenient use of the motor vehicle. Nameplate serves a very useful purpose inasmuch as it gives an identity to the vehicle. Each vehicle comes with a different brand name and in different models having distinct features. The manufacturers of different types of models of vehicles market them under a name and the vehicles are recognized and referred to by the nameplate affixed on them. Nameplates convey to the consumers the distinct features they carry. They add effectiveness and value to the vehicle and are at the very least accessories of the vehicle. Thus, even if there was any difficulty in the inclusion of the plastic nameplates as parts of the motor vehicles, they would most certainly have been covered by the broader term accessory.

14. On the other hand, learned counsel for the Revenue, Mr. R.B. Mathur, relied upon the following decisions of different High Courts in support of his submissions. In the case of Standard Appliances v. State of Tamil Nadu reported in (1996) 100 STC 557 (Mad), the Madras High Court while dealing with the question of taxability of voltage stabilizers with respect to entry No. 41-A,which described all electrical instruments, apparatus and appliances (other than those specified elsewhere in the schedule) but included electrical fans, light bulbs etc. and other competing entries viz. Entry No.4, which reads as under: Refrigerators or other refrigerators appliances, air-conditioning plants, air-conditioners and other air-conditioning appliances, air-coolers, room-coolers including cooling appliances, apparatus and instruments, parts and accessories thereof; and Entry No.5 says wireless reception instrument and apparatus, television sets ...... and accessories thereof. The Division Bench of Madras High Court held that voltage stabilizers could not be said to be specified elsewhere with reference to entry No.4 and 5 above and, therefore, they would fall in Entry No.41-A, quoted above. In para 7, 9 and 10 the Division Bench of Madras High Court observed as under:

7. Now, in so far as our present case is concerned, no doubt, the term used in entry 41-A is other than those specifically mentioned elsewhere in this Schedule and not actually other than those specifically mentioned in the Schedule as in the above referred to entry 39 of the Kerala Act. But as per the above referred to meaning of the term specify given in the Words and Phrases, Volume 39A at page 469, the said term means to mention specifically. In other words, both specify and to mention specifically have the same meaning.

9. In the light of the above said dictionary meanings and decisions, it cannot be said that the above said voltage stabilizers have been mentioned specifically or stated precisely or in explicit terms or named expressly or particularly in the above said entry 4 and 5 when it uses the expression accessories thereof generally.

10. The net result is, in the present case, entry 41-A alone will apply and not entry 4 or 5. Therefore, the order of the Tribunal is set aside and the tax case revision is allowed. No costs.

15. In the case of Katragadda Electronics (P) Ltd. & Anr. v. The State of Andhra Pradesh reported in (1988) 171 STC 281 (AP), the Division Bench of Andhra Prakash High Court held that voltage stabilizers could not be held to be exempted from sales tax being accessories to electrical energy where such exemption was granted from tax on the sale of electrical energy only. In para 3 of the said judgment rejecting the contention of the learned counsel for the assessee, the Court held that what is exempted from tax is electrical energy and not any accessories to the same; and therefore, the voltage stabilizers can never regarded as accessories to electrical energy. For the purposes of ready reference, the relevant paras 3, 4 and 5 are reproduced herein below:

3. It is urged by Sri V.T.M. Prasad, learned counsel appearing for the petitioner in the first three tax revision cases, submits that as the voltage stabilizers supplied by the assessee therein are accessories to electrical energy, the same are exempted from tax under section 8 of the Act. We find it extremely difficult to accede to the submission of the learned counsel. What is exempted from tax is electrical energy and not any accessories to the same. Further electrical energy is supplied in the State by the Andhra Pradesh State Electricity Board for domestic and non domestic purposes. The purposes are varying. For convenient use and enjoyment of supply of energy for a variety of appliances such as air-conditioners, refrigerators, television sets, video cassette players or recorders, etc., voltage stabilizers of different sizes and different capacities suitably regulating supply of electrical energy, are used. The said stabilizers can never be regarded as accessories to electrical energy.

4. Item No. 38(v) of the First Schedule sets out a number of sub-items which are made taxable at the point of first sale in the State at the rate of 8 per cent. at the relevant time. The entry of sub-item (v) of item 38 is wide enough so as to take within its ambit voltage stabilizers. There is therefore no substance in the submission made by Sri. V.T.M. Prasad that voltage stabilizers supplied by M/s Katragadda Electronics (Private) Limited, Hyderabad, could only be taxed as general goods.

5. Sri. T. Raman, learned counsel appearing for the other assessee in the last two tax revision cases, however, submits that the goods supplied by the assessee answer the description of the goods noted against item 83 of the First Schedule. We find it difficult to accept his submission. Voltage stabilizers cannot be treated as machinery propelled or operated by electricity. Voltage Stabilizers merely regulate supply of electrical energy. The tax revision cases are without merit. The same are accordingly dismissed. No costs. Advocate's fees Rs.150 in each. These two judgments on voltage stabilizers are clearly distinguishable from the case in hands and do not support the case of the Revenue at all. In the light of aforesaid judgments while learned counsel for the Revenue contended that the UPS and CVT in the present case, could not be taxed as accessories of the computer @ 4% and they would be taxable only in residuary entry @ 10%.

16. Mr. Nitin Jain, learned counsel appearing for the assessee vehemently submitted that in view of dictionary meanings and judgments cited by him, the items UPS and CVT were correctly taxable @ 4% only as accessories of computers; and since these items were referable to specific entries in the notification, there was no question of going to the residuary entry of 10%. He also emphasized that since the words Parts & Accessories thereof both have been used in the relevant entry No.50, quoted above, even if UPS and CVT do not form part of computer as such, but only aid or support the computer for their operations, they can certainly be described as 'accessories' thereof and merely because these items can be used in other electrical equipments like refrigerators etc. also it does not mean that they get excluded from the ambit and scope of word 'accessory of computer'. He also submitted that major and common use of these goods UPS and CVT is with the computers and, therefore, as per common parlance or trade parlance test, these items deserve to be taxed at concessional rate @ 4%.

17. Having given my thoughtful consideration to the rival submissions made at the bar and relevant entries in the notification dated 27.03.1995 so also judgments cited at bar, this Court is of the considered opinion that goods in question, namely, UPS and CVT are liable to be taxed at 4% only under the relevant entry No.50 of the Notification dated 27.03.1995 and not in the residuary entry attracting 10% rate of tax.

18. The word accessory as explained in the judgment of Annapurna Carbon Industries (supra), need not to be integral part or embedded in the computer itself and it may be independent and separate used to support the operations of the computers or laptops, the fact remains that since they are commonly used as part and parcel of the computer system, as UPS is used for protecting data and temporary short time uninterrupted power supply for running of the computer in case of power failure, whereas CVT is used to provide fluctuation free power supply, they are the instrument which support and aid the operation of the computers and, therefore, there is no reason not to describe them as accessories of computers in the relevant entry No.50 of the notification. The very fact that the words parts and accessories both have been used in the said entry indicates that even if they may not be integral parts of the computer itself like mouse, disk, floppy etc. they can be still 'accessories' of computers. Even if such 'accessories' or items can be put to use with other equipments also like refrigerators, TV sets etc., which do not fall in entry No.50; as such, it does not detract them from being taxed as such @ 4% rate under entry No.50; and particularly when such goods which are sold by a computer, dealer as parts and accessories thereof. The registration certificate of the present dealer authorizes him to sell the computers and computer accessories and their parts. It is well settled that if a particular commodity by no stretch of imagination or logical reasoning, can be covered by a specific entry in the relevant notification, the residuary entry cannot be invoked. The word 'accessory' itself is of wide import and it need not be narrowly construed to mean only the integral parts like mouse, hard disk, floppy, disk drive, CD Rom etc. The word 'accessory' has already been explained above to mean any instrument or the equipment which aids or supports the operation of other equipment and, therefore, where such goods in question namely, UPS and CVT, admittedly aid or support the operations computers or laptops, there is no reason to exclude them from the ambit and scope of entry No.50, quoted above.

19. The contentions of the learned counsel for the Revenue that since they can be used as accessories of other items like refrigerators, TV sets also, therefore, they cannot be cannot fall within the scope of entry No.50 is without any merit. Even if these goods if they were sold along-with refrigerators as accessories thereof, were to be taxed at different rate as applicable thereto, it will not mean that in the hands of the present assessee, a dealer of computers also, it has to be taxed at that very rate, which is applicable to the sale of refrigerator and accessories thereof. The same goods like UPS and CVT, can be taxed at the different rates as accessories to different goods when sold by such registered dealers of different commodities. However, neither such specific entry has been pointed out, nor such a hypothetical comparison can furnish any basis for applying the residuary entry to the sale of UPS and CVT in the hands of the present assessee-dealer of the computers and parts and accessories thereof.

20. Consequently, this Court is the opinion that both the appellate authorities below were justified in holding in favour of assessee that sale of CVT and UPS was taxable at the rate of 4% in the hands of assessee as 'accessories of computers' and could not be taxed at 10% in the residuary entry of the relevant notification. Accordingly, these revision petitions filed by the Revenue are liable to be dismissed and same are hereby dismissed. No costs.

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