# M/s Prarthana Infinite Lucknow Revisionist v. Commissioner Commercial Taxes U.P. Lucknow

- **Citation:** (2022) 4 ILRA 946
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-22
- **Case number:** Sales/Trade Tax Revision No. 109 of 2014
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-prarthana-infinite-lucknow-revisionist-v-commissioner-commercial-taxes-u-p-48377
- **Pages:** 7

## Headnote

A. Tax Law - Benefit of Classification -
Indian Stamp Act,1899 - Sections 47-A -
U.P. VAT Act, 2008 - Schedule-2 Part-B
Entry no.22 - Customs Tariff Act, 1975 -
Note 5 (E) to Chapter 84 - As per the law
settled by the Hon'ble Supreme Court in the
case
of
M/s.
Xerox
India
Limited
Vs.
Commissioner of Customs, Mumbai (infra),
this Court finds that the Revisionist is an
Authorized
Dealer
of
a
Printer
manufacturer by the name of Sharp
Computer Systems, and although their
Printers are multifunctional in nature
their components are mainly used for
the purpose of printing and their main
character is that of a Printer, therefore,
the Revision deserves to be allowed. (Para
22)

The Tribunal had not given the benefit of
the judgment rendered in M/s. Xerox
India
Limited
Vs.
Commissioner
of
Customs, Mumbai (infra) and not treated
Multifunctional Printer as a Computer
peripheral only because the manufacturer in
the case before the SC had given Certificates
with regard to its Printers and various models
thereof
saying
that
parts
of
all
such
Multifunctional Devices were used to the extent
of 75% to 85% for the purpose of printing. The
Revisionist had not given any such factual basis
for the Tribunal to extend the benefit of
judgment rendered in M/s. Xerox India Limited
Vs. Commissioner of Customs, Mumbai (infra) to
it also. (Para 15)

B. Words and Phrases - "Peripherals" -
Longman's Dictionary of Contemporary
English - A piece of equipment such as a Visual
Display Unit or a Central Processing Unit which
is connected to a Computer help in the use of
Computer.

Readers Digest Dictionary "peripheral" has
been treated as an item of Hardware, such as
Modem that is not specifically part of the CPU,
but used for the purpose of a Computer.

The Tribunal has found that a Multifunctional
Printer does Printing, Scanning, E-Mailing,
Faxing,
Photocopy
etc.
and
these
functions are mostly performed by it
independently of the Computer, therefore,
it could not be said to be a Computer
peripheral like the Visual Display Unit or
Modem or such other things which are
connected inseparably to a Computer.
(Para 17)

C. The Supreme Court in M/s. Xerox
India (infra) considered the Customs Act
and the General Rules for interpretation of
the Schedule-II attached to the Act, more
specifically,
it
dealt
with
the
goods/machinery which had to be classified
by reference to such component as gave
them their essential character or on the
basis of function and what was their major
function. In Para 17 of M/s. Xerox India
(infra) the SC referred to the Certificate of
the manufacturer which clearly showed that
the printing function emerges as the main
function giving the Multifunctional Machine
its essential character. It was used mainly
for printing and was attached to the CPU and
was able to accept Data in the form of Codes
and Signals, which could then be used by its
system for printing. (Para 20)
4 All. M/s Prarthana Infinite Lucknow Vs. Commissioner Commercial Taxes U.P. Lucknow
947
Since the predominant components all
related to printing function, the SC was
satisfied that the appellants were rightly
claiming the benefit on the basis of nature
of function that the machines performed
and the basis of nature of components.
The Court thereafter, gave the appellants the
benefit of classification of such imported
Multifunctional Machines serving as output
device of a Computer as Computer Peripheral.
(Para 21)

Revision allowed. (E-4)

Precedent followed:

## Text

946 INDIAN LAW REPORTS ALLAHABAD SERIES

38. No order as to costs.
----------
(2022)04ILR A946
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.03.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Sales/Trade Tax Revision No. 109 of 2014

M/s Prarthana Infinite Lucknow
 ...Revisionist
Versus
Commissioner
Commercial
Taxes
U.P.
Lucknow ...Opposite Party

Counsel for the Revisionist:
Sunil Sharma

Counsel for the Opposite Party:
C.S.C.

A. Tax Law - Benefit of Classification -
Indian Stamp Act,1899 - Sections 47-A -
U.P. VAT Act, 2008 - Schedule-2 Part-B
Entry no.22 - Customs Tariff Act, 1975 -
Note 5 (E) to Chapter 84 - As per the law
settled by the Hon'ble Supreme Court in the
case
of
M/s.
Xerox
India
Limited
Vs.
Commissioner of Customs, Mumbai (infra),
this Court finds that the Revisionist is an
Authorized
Dealer
of
a
Printer
manufacturer by the name of Sharp
Computer Systems, and although their
Printers are multifunctional in nature
their components are mainly used for
the purpose of printing and their main
character is that of a Printer, therefore,
the Revision deserves to be allowed. (Para
22)

The Tribunal had not given the benefit of
the judgment rendered in M/s. Xerox
India
Limited
Vs.
Commissioner
of
Customs, Mumbai (infra) and not treated
Multifunctional Printer as a Computer
peripheral only because the manufacturer in
the case before the SC had given Certificates
with regard to its Printers and various models
thereof
saying
that
parts
of
all
such
Multifunctional Devices were used to the extent
of 75% to 85% for the purpose of printing. The
Revisionist had not given any such factual basis
for the Tribunal to extend the benefit of
judgment rendered in M/s. Xerox India Limited
Vs. Commissioner of Customs, Mumbai (infra) to
it also. (Para 15)

B. Words and Phrases - "Peripherals" -
Longman's Dictionary of Contemporary
English - A piece of equipment such as a Visual
Display Unit or a Central Processing Unit which
is connected to a Computer help in the use of
Computer.

Readers Digest Dictionary "peripheral" has
been treated as an item of Hardware, such as
Modem that is not specifically part of the CPU,
but used for the purpose of a Computer.

The Tribunal has found that a Multifunctional
Printer does Printing, Scanning, E-Mailing,
Faxing,
Photocopy
etc.
and
these
functions are mostly performed by it
independently of the Computer, therefore,
it could not be said to be a Computer
peripheral like the Visual Display Unit or
Modem or such other things which are
connected inseparably to a Computer.
(Para 17)

C. The Supreme Court in M/s. Xerox
India (infra) considered the Customs Act
and the General Rules for interpretation of
the Schedule-II attached to the Act, more
specifically,
it
dealt
with
the
goods/machinery which had to be classified
by reference to such component as gave
them their essential character or on the
basis of function and what was their major
function. In Para 17 of M/s. Xerox India
(infra) the SC referred to the Certificate of
the manufacturer which clearly showed that
the printing function emerges as the main
function giving the Multifunctional Machine
its essential character. It was used mainly
for printing and was attached to the CPU and
was able to accept Data in the form of Codes
and Signals, which could then be used by its
system for printing. (Para 20)
4 All. M/s Prarthana Infinite Lucknow Vs. Commissioner Commercial Taxes U.P. Lucknow
947
Since the predominant components all
related to printing function, the SC was
satisfied that the appellants were rightly
claiming the benefit on the basis of nature
of function that the machines performed
and the basis of nature of components.
The Court thereafter, gave the appellants the
benefit of classification of such imported
Multifunctional Machines serving as output
device of a Computer as Computer Peripheral.
(Para 21)

Revision allowed. (E-4)

Precedent followed:

1. M/s Xerox India Ltd. Vs Commissioner of
Customs, Mumbai, (2010) 14 SCC 430 (Para 9)

Present revision challenges order dated
05.07.2014,
passed
by
learned
Commercial Tax Tribunal, Bench - III,
Lucknow.

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

(1) Heard Shri Sunil Sharma, for the
revisionist and Shri Sanjay Sarin, appearing
on behalf of the State respondent.

(2) This Revision has been filed
against the order dated 05.07.2014 passed
by the learned Commercial Tax Tribunal,
Bench-III, Lucknow.

(3) The facts in brief as stated by the
learned counsel for the revisionist are that
the revisionist is a Firm Trading in
Photocopies, Printers, Cartridges, Toners
and Spares and is registered in the office of
the Dy. Commissioner, Commercial Tax,
with TIN No.09352304188 under the U.P.
Value Added Tax Act, 2008. The Firm has
been depositing tax regularly every month.
The revisionist having deposited admitted
tax alongwith return disclosing sale of
Printer under VAT Act as a Computer
peripheral admitting 4% tax deposited
under Entry 22 of the Schedule which reads
as:- "22 -Computer System and Peripherals
Electronic Diaries for the Assessment year
2008-09.

(4) The Assessing Authority by its
order
dated
29.02.2012
assessed
the
revisionists sale of Multifunctional Printers
@ 12% created a dispute of Rs.7,23,387/-.
The revisionist had admitted tax @ 4% but
the Assessing Authority assessed the sale of
Multifunctional Printer under Residuary
Entry and therefore taxed it at rates meant
for unclassified items
 under Schedule @ 12.5%.

(5) Learned counsel for the revisionist
has argued that a Printer is a specifically
designed device only for printing and is
admittedly a Computer peripheral. With the
advancement of technology, most of such
Printers also performed the functions of
Scanning, E-Mailing, Faxing and Copying.
However such Printers are bought mainly
for the purpose of printing and are attached
to Computers and they cannot perform their
main function without the help of a
Computer, therefore, they have to be
treated as a Computer peripheral and taxed
@ 4%. The Assessing Authority however,
concentrated on other functions performed
by Multifunctional Printer and treated it as
an unclassified item.

(6) The order of the Assessing
Authority was challenged by filing an
Appeal No.589 of 2012. The said Appeal
was
dismissed
by
the
Additional
Commissioner on 03.07.2013.

(7) Feeling aggrieved the revisionist
filed a Second Appeal before the learned
Commercial
Tax
Tribunal,
Bench-III,
Lucknow, namely Second Appeal No.399
948 INDIAN LAW REPORTS ALLAHABAD SERIES
of 2013. During the pendency of the
Appeal the Tribunal had stayed 80% of the
disputed amount, the revisionist had
deposited the remaining 20% before it.

(8) During the pendency of the
Second Appeal, the Commissioner in the
exercise of powers under Section 59 of
the Act passed an order on 05.03.2014 on
an application of M/s Neoterric Infomatic
Private Limited holding that the primary
work of a Multifunctional Printer is that
of printing which cannot be performed
without
the
Computer.
In
common
parlance, the Multifunctional Printer is
also known as Printer and it should be
taxed @ 4% under Schedule-2 Part-B
Entry no.22 of the U.P. VAT Act, 2008.
Despite such order being passed by the
Commissioner and the Revisionist and
other Traders being now taxed @ 4%
regarding the sale of Multifunctional
Printer as Computer peripheral, for the
Assessment year 2008-09 with Tribunal
did not extend the benefit and rejected the
Second Appeal by its order dated
05.07.2014.

(9) It has been argued that such
judgment of the Tribunal has been passed
contrary to the decision of the Supreme
Court in the case of M/s Xerox India
Limited Vs. Commissioner of Customs,
Mumbai reported in (2010) 14 SCC
430.

(10)

Learned
counsel
for
the
revisionist has pointed out the questions of
law framed in this Revision and the order
passed initially by this Court on 09.10.2014
where this Court has admitted the Revision
on Question No.2 as framed in the Memo
of the Revision. Since after dismissal of the
Second Appeal the revisionist had already
deposited 20% of the disputed tax liability,
the Court did not find it appropriate to pass
any order on such tax liability but directed
that the Tribunal orders shall remain stayed.

The Question No.2 as framed by
the Revisionist is as follows:-

"..............Whether
the
Commercial Tax Tribunal was justified in
not giving the benefit/parity of judgment
pronounced by the Hon'ble Apex Court in
the case of Xerox India Ltd. thereafter?"

(11) Learned counsel appearing for
the State respondents has referred to
counter affidavit filed by them wherein it
has been stated that the original assessment
order for the Assessment year 2008-09 was
passed
on
27.02.2012
and
on
Multifunctional Device tax was assessed @
12.5% but the revisionist only admitted tax
@ 5% treating the said multifunctional
devices as a Computer peripheral. On
08.08.2008, in the case of M/s Neoterric
Infomatic
Private
Limited,
the
Commissioner
Commercial
Tax
had
decided the tax-ability of Multifunctional
Device @ 12.5% as an unclassified item,
therefore, the First Appellate Authority on
the basis of the order dated 08.08.2008
passed by the Commissioner in the case of
Neoterric Infomatic Pvt. Ltd. rejected the
First Appeal of the revisionist. Neoterric
had challenged the order dated 08.08.2008
passed
by
the
Commissioner
in
Commercial Tax Tribunal and the Tribunal
by
its
order
dated
06.06.2013
had
remanded the matter to the Commissioner
for reconsideration. After remand the
Commissioner
Commercial
Tax,
reclassified Multifunctional Device relying
upon a decision of the Supreme Court in
the case of M/s Xerox India Limited Vs.
Commissioner of Customs, Mumbai
(supra) under the Category of Computer
peripheral under Schedule-II Part-B at
4 All. M/s Prarthana Infinite Lucknow Vs. Commissioner Commercial Taxes U.P. Lucknow
949
sl.no.22 holding taxability @ 4% + 1%
Additional
tax
by
an
order
dated
05.03.2014.

(12) Since the invoice produced by
the Revisionist before the Tribunal by the
revisionist showed Multifunctional Printer
as Multifunctional Device, the Tribunal did
not provide the benefit of the order dated
05.03.2014 of the Commissioner and
confirmed
the
order
passed
by
the
Assessing Authority and the First Appellate
Authority.

(13) It has also been stated in the said
counter affidavit that in the case of the
Revisionist for Assessment year 2010-11
the First Appellate Authority had cancelled
the Assessment order and remanded the
matter to the Assessing Authority by its
order dated 01.12.2015. The Assessing
Authority being satisfied that the case in
hand
was
of
a
Multifunctional
Device/Multifunctional Printer and came
under the Category of Computer peripheral
had accordingly taxed it @5% by the
Assessment order dated 01.12.2015.

(14) Similarly, for the Assessment
year 2011-12, by an assessment order dated
02.02.2015 tax has been levied @ 12.5% +
1% Additional Tax and on Appeal the
matter was remanded. After remand the
Assessing Authority had treated it as a
Computer peripheral. Same is the case for
Assessment Year 2012-13, wherein the
Assessing Authority has treated the Printer
in question as Multifunctional Device and
taxed it @ 4% + 1% Additional Tax i.e. 5%
by its Assessment order dated 02.03.2016.

(15) This Court has perused the
impugned order it is apparent from a
perusal of the order of the Tribunal that the
Tribunal had not given the benefit of the
judgment rendered in M/s Xerox India
Limited Vs. Commissioner of Customs,
Mumbai
(supra)
and
not
treated
Multifunctional Printer as a Computer
peripheral only because the manufacturer in
the case before the Supreme Court had
given Certificates with regard to its Printers
and various models thereof saying that
parts of all such Multifunctional Devices
were used to the extent of 75% to 85% for
the purpose of printing. The Revisionist
had not given any such factual basis for the
Tribunal to extend the benefit of judgment
rendered in M/s Xerox India Limited Vs.
Commissioner of Customs, Mumbai
(supra) to it also.

(16)

Learned
counsel
for
the
Revisionist has pointed out that in the
supplementary affidavit filed by it, it has
annexed a copy of the Certificate issued by
the manufacturer on 28.02.2015 namely
Sharp Business India Limited wherein it
had
acknowledged
that
their
Multifunctional
Devices
are
used
as
Printers, Scanners and Copiers and more
than 75% of the parts are used in making a
Computer printer. Rest of the other 25%
parts are used in making it as a Computer
Scanner and Copier.

(17) Such Certificates admittedly was
not before the Tribunal. However this is not
only the ground on which the Tribunal has
rejected the Second Appeal. It has referred
also
to
Dictionaries
like
Longman's
Dictionary of Contemporary English and
considered the definition of "peripherals"
and observed that a piece of equipment
such as a Visual Display Unit or a Central
Processing Unit which is connected to a
Computer help in the use of Computer.
Similarly, in Readers Digest Dictionary
"peripheral" has been treated as an item of
Hardware, such as Modem that is not
950 INDIAN LAW REPORTS ALLAHABAD SERIES
specifically part of the CPU, but used for
the purpose of a Computer. The Tribunal
has found that a Multifunctional Printer
does
Printing,
Scanning,
E-Mailing,
Faxing, Photocopy etc. which functions are
mostly performed by it independently of
the Computer, therefore, it could not be
said to be a Computer peripheral like the
Visual Display Unit or Modem or such
other
things
which
are
connected
inseparably to a Computer.

(18) Since this Revision has been
admitted by this Court on the substantial
question "whether the judgment in M/s
Xerox India Limited Vs. Commissioner of
Customs, Mumbai (supra) should have
been considered as settling the issue and
whether a Tribunal was wrong in not giving
its benefit to the revisionist?" This Court
has considered the judgment rendered in
M/s
Xerox
India
Limited
Vs.
Commissioner of Customs, Mumbai
(supra). It related to Classification under
Customs Tariff Act, 1975. The appellants
were engaged in a Trading of high
technology reproduction and duplicating
machines, Printers and multifunctional
machines capable of discharging a number
of functions. The appellants imported
certain machines namely Xerox Regal
5799, Xerox WorkCenter XD100 and
Xerox WorkCenter XD155df respectively
and sought classification of these imported
machines as Computer peripherals. Such
machines being used for as Printers, Faxing
Machine, Copiers or Scanners, the Customs
Authorities classified them as Automatic
Inter-Processing
Machine
used
independently of the Computer under the
Residuary
heading.
The
Customs
Authorities were of the view that Digital
Printers
were
an
Automatic
Data
Processing Unit as such the same were
being considered as the unit of Automatic
Data Processing Machine. For a peripheral,
it should be able to work only with a
Computer. The moment it is able to
perform independently of a Computer, its
claim to be a unit of the computer ceased to
hold good. Merely working in conjunction
with a computer did not bestow upon it the
status of a unit of the computer as a
peripheral Machine. Since Digital printer
was not classifiable under any specific
heading, the same required to be classified
under residual heading. It also observed
that the Machine is capable of functioning
as a stand-alone digital copier, even without
a computer and therefore, in terms of Note
5 (E) to Chapter 84 of the Act, the imported
machine could not be classified under
Heading 84.71. The Appellate Authority
while deciding the appeal filed by the
appellant has concurred with the finding
and conclusion reached by the Deputy
Commissioner of Customs.

(19) The appellants were before the
Supreme Court explaining the function
performed
by
Printers
which
work
alongwith side a computer. The printing is
carried out by the Computers giving
command in the form of Digital signals
which
is
transmitted
through
wires,
converted into a readable language, and
then printed. The counsel for the Appellants
had gone on to explain the function of a
Scanner, which converts documents into
digital signals for storage in the Computer.
In this way , the Scanner and Printer serve
as input and output devices for the
Computer.
Similarly,
when
it
was
functioning as a Copier it served as a
combined
Scanner/Printer.
He
further
explained the purpose of a Digital Scanner,
which copies a document and sends it to
the
Central
Processing
Unit
of
the
Computer; independently. The Copier can
also print on its own after scanning. Thus,
4 All. M/s Prarthana Infinite Lucknow Vs. Commissioner Commercial Taxes U.P. Lucknow
951
according to the learned counsel, a Copier
served as a combined Scanner-cum-Printer.
The learned counsel submitted that the
multifunctional machines (which included
Printer, Scanner and Copier) are not
automatic data-processing machines (in
short ADPM) they served as input and
output devices of an ADPM (Computer)
and thus they would fall under SubHeading 8471.60.

(20) In M/s Xerox India (supra)
learned counsel arguing on behalf of the
Customs Authorities had pointed out that
the machines in question were not Printers
simplicitor attached to a Computer but are
capable of performing a number of
functions independently and no single
function could be said to be predominant.
The
Supreme
Court
considered
the
Customs Act and the General Rules for
interpretation of the Schedule-II attached to
the Act, more specifically, it dealt with the
goods/machinery which had to be classified
by reference to such component as gave
them their essential character or on the
basis of function and what was their major
function. In Paragraph-17 of M/s Xerox
India (supra) the Supreme Court referred
to the Certificate of the manufacturer which
clearly showed that the printing function
emerges as the main function giving the
Multifunctional
Machine
its
essential
character. It was used mainly for printing
and was attached to the Central Processing
Unit and was able to accept Data in the
form of Codes and Signals, which could
then be used by its system for printing.

(21)

Since
the
predominant
components all related to printing function,
the Supreme Court was satisfied that the
appellants were rightly claiming the benefit
on the basis of nature of function that the
machines performed and the basis of nature
of components. The Court thereafter, gave
the appellants the benefit of classification
of such imported Multifunctional Machines
serving as output device of a Computer as
Computer Peripheral.

(22) Keeping in mind the law settled
by the Hon'ble Supreme Court in the case
of
M/s
Xerox
India
Limited
Vs.
Commissioner of Customs, Mumbai
(supra), this Court finds that the Revisionist
is an Authorized Dealer of a Printer
manufacturer by the name of Sharp
Computer Systems, and although their
Printers are multifunctional in nature their
components are mainly used for the
purpose of printing and their main
character is that of a Printer, therefore, the
Revision deserves to be allowed.

(23) The Tribunal committed factual
and
legal
error
in
treating
the
multifunctional
printers
sold
by
the
revisionist as falling in the Residuary
category and not giving the benefit of
judgment rendered by the Supreme Court
in the case of M/s Xerox India Limited
Vs. Commissioner of Customs, Mumbai
(supra). The order of the Tribunal is hence,
set aside.

(24) The Revision is allowed.

(25) The amount of tax is required to
be determined afresh, therefore, a copy of
this decision shall be sent to the Tribunal
for afresh determination of the amount of
tax payable by the revisionist.

(26) From the facts as mentioned in
the affidavit filed in support of the stay
application
and
the
supplementary
affidavit, it is evident that only for the
Assessment year 2008-09, there was a
disputed tax liability and in rest of the years
952 INDIAN LAW REPORTS ALLAHABAD SERIES
either Assessing Authority or Appellate
Authority had accepted the contention of
the Revisionist.

(27) The Tribunal shall pass necessary
orders taking into account the observations
made hereinabove within a period of three
months from the date a certified copy of
this order is produced before it.
----------
(2022)04ILR A952
REVISIONAL JURIDICTION
CIVIL SIDE
DATED: LUCKNOW 31.03.2022

BEFORE

THE HON'BLE PIYUSH AGRAWAL, J.

Commercial Tax Revision No. 234 of 2016
with
Sales/Trade Tax Revision No. 272 of 2016
and
Sales/Trade Tax Revision No. 233 of 2016

The Commissioner, Commercial Tax, U.P.
Lucknow ...Revisionist
Versus
S/s Gaurav Gupta, New Delhi
 ...Opposite Party

Counsel for the Revisionist:
S.C.

Counsel for the Opposite Party:
Sri Naveen Chandra Gupta

A. Tax Law - VAT Act, 2013 - Section 3(8),
17 - U.P. VAT Rules, 2016 - Rules 63(4),
38(7), 38(7)(a) & 38(9) _ U.P. VAT Act,
2008 - Section 2(h)(ix) - The Railway
Container Contractor is deemed to be a
dealer and is required to get itself
registered
within
the
State
for
transporting the goods. (Para 9)

S. 2(h)(ix), VAT Act provides that the person
operating as a Railway Container Contractor
shall be deemed to be a dealer and is obliged to
provide complete details and address of the
consignor and consignee name and address,
etc. Further, as per the provision of S.17, VAT
Act, the Railway Container Contractor is
required to get itself registered under the Act,
failing which shall not operate its business
within the State. Rule 38(7), VAT Rules
prescribes for maintenance of record. Rule
38(7)(a) further provides register in respect of
all consignment and goods received by the
Railway Container Contractor for transportation
and storage is required to be maintained and
before receiving the goods, require to obtain
declaration in Form - XVIII and before delivery
is required to obtain declaration in Form - XX
from the owner of the goods. Further, Rule
38(9), VAT Rules provides to preserve all
records maintained by the Railway Container
Contractor for a period of 8 years after expiry of
the assessment order, to which they belong.
(Para 8)

B. The Tribunal, before passing the final
order, should/must have called for the
report from the Assessing Authority of
the respective dealer on the books of
account produced in support of the
claim by the respondents. The Tribunal
has failed to do so and just calling for
the record of the Department and
making certain observations cannot be
sustained in the eyes of law. (Para 11)

C. The Tribunal has shifted the burden
on the Revenue in the impugned order
and has held that the Revenue has
failed to bring on record any taxable
goods being transported through SLR
taken on lease by the respondents.
This observation of the Tribunal is
perverse and liable to be set aside.
(Para 12)

The Tribunal should have kept in mind that
the
present
proceedings
are
regular
proceedings
and
not
reassessment
proceedings for which the burden is upon
the Revenue for placing materials for
escapement of assessment. Since it is a
regular assessment for non-payment of tax
or there is not liability of tax, it is
incumbent upon the dealers to produce
such material/such record or other evidence
to support their claim. (Para 13)