C.T.O.Spl.Circle Jodhpur vs M/S Sankhla Udhyog Ltd on 6 January, 2009

(1) S.B.CIVIL SALES TAX REVISION NO.290/2007 - CTO Special Circle, Jodhpur vs. M/s Sankhla
Udhyog Ltd. Jodhpur, (2) S.B.CIVIL SALES TAX REVISION NO.292/2007 - CTO Special Circle, Jodhpur
vs. M/s Sankhla Udhyog Ltd. Jodhpur, (3) S.B.CIVIL SALES TAX REVISION NO.293/2007 - CTO Special
Circle, Jodhpur vs. M/s Sankhla Udhyog Ltd. Jodhpur                           Order dt: 6/1/2009



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       S.B.CIVIL SALES TAX REVISION NO.290/2007
(CTO Special Circle, Jodhpur vs. M/s Sankhla Udhyog Ltd. Jodhpur)
       S.B.CIVIL SALES TAX REVISION NO.292/2007
(CTO Special Circle, Jodhpur vs. M/s Sankhla Udhyog Ltd. Jodhpur)
       S.B.CIVIL SALES TAX REVISION NO.293/2007
(CTO Special Circle, Jodhpur vs. M/s Sankhla Udhyog Ltd. Jodhpur)

                           DATE OF ORDER : 6/1/2009

                HON'BLE DR.JUSTICE VINEET KOTHARI


Mr.Vinit Kumar Mathur with
Mr.Lokesh Mathur, for the petitioners.


        Learned counsel for the Revenue submits that the impugned

order of Tax Board dated 26/4/2007 has since been rectified by the

Tax Board on 17/12/2008, which is placed on record, holding that

the sale of PCC Poles are taxable @ 12% as a cement product in

accordance with the decision of this Court in case of ACTO Vs. M/s

Sankhla Udhyog - S.B.Civil Sales Tax Revision No.853/2002 dated

2/4/2007, which is placed at Annex.4 in the present revision petitions.

It was held in the aforesaid case against the same assessee as under:


           "Entry 87 provides tax on "articles made of cement".
           Therefore, basically it is to be seen whether the article
           in question is made of cement or not? The word
           "made" as used in the entry is relevant and has its own
           significance which makes the entry wide. It nowhere
           provides that "articles of cement" shall be taxable at
           the rate of 12%. An article means an independent and
           separate commodity and when ti is manufactured with
           the inclusion of cement, then it necessarily means that
           the article may have very many other articles but it is
           made because of cement. The nature and the
           properties of cement are not unknown and that is the
           binding character. Therefore, when an article is made
           by using cement then for that article, entry 87 is the
 (1) S.B.CIVIL SALES TAX REVISION NO.290/2007 - CTO Special Circle, Jodhpur vs. M/s Sankhla
Udhyog Ltd. Jodhpur, (2) S.B.CIVIL SALES TAX REVISION NO.292/2007 - CTO Special Circle, Jodhpur
vs. M/s Sankhla Udhyog Ltd. Jodhpur, (3) S.B.CIVIL SALES TAX REVISION NO.293/2007 - CTO Special
Circle, Jodhpur vs. M/s Sankhla Udhyog Ltd. Jodhpur                           Order dt: 6/1/2009



                                             2/2

           provision for taxing. Simply because the other articles
           have been used in manufacturing the product made by
           cement, it cannot be said that that article is not made
           by cement. The sue of iron rods gives the shape and
           strength to the cement poles but cannot be made
           without use of cement and, therefore, PCC Poles are
           the "articles made of cement".

           So far as two division bench judgments of Tax Board
           delivered in Appeal No. 1170/1996 and 1171/1996
           dated 5.10.2001 are concerned, copies of those
           judgments have not been provided by any of the
           parties but in view of the reasons mentioned above,
           this Court is of the view that PCC Poles fall in the
           category of "articles made of cement" and
           consequently are covered under entry no.87 and,
           therefore, liable to be taxed at the rate of 12%.

           In view of the above, this revision is allowed, the
           orders of the Tax Board and Dy. Commissioner
           (Appeals) dated 16.1.2002 and 3.3.1998 are set aside
           and the order of the assessing authority dated
           12.7.1996 is upheld."



        Accordingly, the present revision petitions against original

order of Tax Board dt:26/4/2007 have become infructuous as order of

the Tax Board itself has been rectified in favour of the Revenue on

27/12/2008. The present revision petitions are accordingly dismissed

as having become infructuous.


                                                       (DR.VINEET KOTHARI), J.

item no.2 to 4
baweja/-