PG FOILS LTD. , PIPLIAN , PALI..

PETITIONER
V/S
COMMERCIAL TAXES OFFICER, SPECIAL CIRCLE , PALI .RESPONDENTS
REVISION PETITION U/S 84 RAJASTHAN VAT ACT 2003
ON 31.12/2009
COMMON JUDGEMENT (SERVED ON 14/1/2010) BY
TAX BOARD , AJMER IN APPEAL NO.________/2007
(CTO V/S PG FOILS)
ON 16/3/1999
SETTING ASIDE ORDER BY DY. COMMISSIONER
(APPEALS)

STATEMENTS OF CASE
1. Petitioner assessee is engaged in manufacturing and selling aluminium foils.
2. MAIN QUESTION Whether Aluminium Foil fall under the ambit of word
Sheet which is notified on dated 31/12/1975 and petitioner is liable to the
concessional rate tax at 1 % or not ?
3. Impugned order 31/12/2009 passed by Ld. Tax board. The matter came up
before this honble court for adjudication relating to the present revision
petition on same core question.
4. Notification dated 31.12.1975 and notification dated 13/06/1985 which are in
dispute.
NOTIFIACTION DATED 31/12/1975
ITEM
NO.

DESCRIPTION
GOODS

OF RATE
TAX

1.

Non ferrous rods, 1%

pipes strips, section,
sheets , circles and
tubings

And notification dated 13/06/1985

OF

5.

That petitioner submitted an application before ADD. Commissioner

Commercial TAXES RAJ JAIPUR u/s 12 A of raj sales Tax act, 1954 for disputed
question & HELD that ALUMINIUM FOILS ARE NOT COVERED BY NOTIFICATION
DATED 13/12/1975.
6. Petitioners challenged orders before Deputy Commissioner (Appeals)
.

ST APPEAL) - APPEAL AGAINST

26/9/1988 (1ST
APPLICATION U/S 12 A
ND APPEAL) - AGAINST
31/12/1988 (2ND
UPHELD PROVISIONAL ASSESTMENT
ORDERS

7. On 26/2/1991 These appeals were partly allowed by RST Tribunal , Ajmer and
matter was remanded to the Assessing authority for deciding the core issue ,
petitioners being aggrieved from the order of the RST tribunal preferred revisions
before RAJ. H.C. And on 12/9/1997 appeal were decided and HC upheld the
order passed by tribunal.
8. That after judgement dated 12/9/1994 of HC petitioner withdraws the
application filed U/S 12 A.
9. THAT after upheld the decision STT by Raj HC. The matters were again
examined by the assessing authorities for various years. Petitioners being
aggrieved from the various final assessment order passed by the assessing
authority preferred appeals before deputy commissioner (appeals)
10. On 16/1/1999 appeals were rejected by common order (A-1) of petitioner and
foil India laminate put against the provisional assessment orders dated 2-1-1995.
(ANNEXURE 1 COPY OF ORDER 16/01/1999)
11. That appeals preferred by petitioners against order dated 2/1/1995 and Raj
Tax Board, on 8/2/1999 (A- 2) appeal allowed and finding reversed and held that
aluminum foils covered under notification 31/12/1975. (ANNEXURE 2 COPY OF
ORDER 8/02/1999)
12. On 8 / 2/ 1999 tax board decided 4 appeals
2- By PG FOILS (ASSESSMENT YEARS 1994 -1995)
2- BY Oil India Laminate (1-4-1994 TO 30 -6- 1994 & 1/7/1994 TO 30 /9/94)
Department being aggrieved by the judgment dated 8/2/1999 department
preferred 4 revision petition before honble RAJ HC., WHICH WERE DISMISSED
ON 12/7/2006.
2

13. That assessee moved an application U/S 37 of RST Act 1994 before deputy
commissioner appeals for rectification of mistake in order 16/1/1999 and deputy
commissioner appeals allowed application for rectification order dated 16/3/1999.
(ANNEXURE 3 COPY OF ORDER 16/03/1999)
14. That being aggrieved from the order 16/3/1999 respondent preferred appeals
before Rajasthan tax board order dated 27/2/2002 upheld the order passed by
the deputy commissioner (appeals) on the basis of order 8/2/1999 passed by Ld.
Tax board (A-4) and also dismissed appeal which was filed by revenue in light of
8/2/1999 (A-5). (ANNEXURE 4 LD TAX BOARD ORDER DATED 27/7/2002 AND
ANNEXURE 5 ORDER DATED 15-06-2002)

15. That being aggrieved against order dated OF:TAX BOARD

- 8/02/1999

- 27/02/2002

- 15/06/2002

- Department filed a bunch of revisions petition before Raj HC to decide

Whether aluminum foil covered under the notification dated 31/12/1975
-

On 8/1/2007 RHC allowed all revision petitions and quashed

the orders

passed by tax board and matter remanded back to tax board (A-6) to decide all
the appeals including appeals by order dated 8/2/1999 afresh as per law and
decide
-

matter

After

considering the

evidence

produced

(ANNEXURE 6 COPY OF JUDGEMENT DATED 8/01/2007)

Revenue also filed similar revision petitions which were decided by :Raj HC
Order dated
19/1/2007 & 1/01/2008

In light of judgement dated

8/01/2007
16. That after judgement dated OF:RAJ HC
8/1/2007
-

by revenue.

19/1/2007

11/1/2008

MATTERS WERE CONSIDERED FRESHLY BY TAX BOARD.

On 31/12/2009 Ld. Tax board (A-7) allowed all appeals held that aluminum
foils not covered under notification dated 31/12/1975. (ANNEXURE 7 COPY

OF ORDER 31/12/2009)
Matter remanded back to assessing authority and directed him to [ass
appropriate orders in light of observations made in impugned order dated

31/12/2009.
In order dated 31/12/2009- Ld. Tax board failed to give findings on :1. The question framed by this honble HC.
2. The earlier order dated 8/2/1999 , where Ld. tax board held that aluminum
foil comes under the notification dated 31/12/1975 and entitled to get benefit
of 1%.
3. whereas 4 appeals were filed before Ld tax board
2- By PG FOILS (ASSESSMENT YEARS 1994 -1995)
2- BY Oil India Laminate (1-4-1994 TO 30 -6- 94 & 1/7/1994 TO 30 /9/94)

And remaining were filed by revenue department

-

On 31/12/2009 , 34 appeals were decided by common order.

IN 4 APPEALS
Out of 2
1 by PG FOILS

&

1 by INDIA LAMINATES LTD

PURPOSE As these were against

Provisional assessment orders
passed by assessing authority
BUT AS PER PROCESS :1. Assessing authority pass provisional assessment order to assessee.
2. Assessing authority Invite objection from assessee.
3. Assessing authority has to be considering the objection.
4 Thereafter only assessing authority may pass final assessment orders.
BUT IN PRESENT MATTER :TAX BOARD incorporates 2 provisional assessment orders in a final
assessment order.
Whereas the above fact is cleared by order dated 12/07/2006 of RHC.
RAJ HC

8/1/2007

19/1/2007

11/1/2008

RHC correctly registered and decided in total 32 revisions

So, Ld tax board should be registered and decided 32 appeals instead of

34 appeals.
ASSESSEE

RAJ HC (Earlier)

Ld tax board (later)

PG Foils

10

12

M/S Foils Laminated

09

10

M/S Miracle Foils

13

12

TOTAL

32

34

Ld Tax Board erroneously allowed all the appeals thereby filed by

petitioners and laminated ltd. have also been allowed.

GROUNDS
A. That ld. Tax board committed serious illegality in deciding that aluminum
foil not falls under notification dated 31/12/1975.
B. That ld tax board ignores evidences which proves that aluminum foil is
thinner form of non ferrous sheet and comes under notification dated
31/12/1975.
C. That ld tax board failed to consider its earlier detailed order dated
8/2/1999.
Held that Aluminum Foil comes under the notification dated
31/12/1975 and ld tax board not decided the matter freshly as per the
directions given by RHC vide order dated 8/1/2007 and also failed to give detail
reason and answer of question which was framed by RHC.
D. ALUMINUM FOILS ARE NOT DIFFERENT FROM NON FERROUS SHEETS.
That non ferrous includes rods, pipes, strips, sheets under notification
31/12/1975 is exhaustive to cover even the thinner forms of non ferrous
sheets known as aluminum foils each sheet would be covered in this entry.
Ld. Tax board failed to give good meaning word sheets in entry in order dated
31/12/2009 and upholding that aluminum foils are different from non ferrous
sheets.
E. SCOPE OF NON FERROUS SHEETS IS VERY WIDE
That Non ferrous sheets includes all kind of sheets the scope is very wide.
-Ld. Tax board failed to assign correct interpretation on the entry of notification
dated 31/12/1975 and holding that aluminum foils is not a non ferrous sheet,
the scope has been narrowed down by ld. Tax board and contrary to the
legislative intent.
5

F. ALUMINUM FOIL NOT ONLY USED IN PACKING MATERIAL ONLY.

That as mere end of use of aluminum foil is not decisive factor in determining
the entry of tax schedule under which its falls for the purpose of levying tax.
- There are too many uses of aluminum foils by various consumers.
- Ld. Tax board errered in holding that aluminum foil is used only in packing
material only.
G. ORDER DATED 31/12/2009 BASED ON USER THEORY AND ON
MISAPPROPRIATION OF EVIDENCES
That if commodity uses for different purpose or by different users then tax
cannot be levied on the basis of different purpose and different purchasers.
-Ld. Tax board hold that aluminum foils using for packing purpose and
produce bill of few customer (Those who using aluminum foils In packing
material) of assessee.
- BUT Ld. tax board doesnt consider the evidence bill of other customer which
is not correct, which shows it derived various uses.
- The impugned order dated 31/12/2009 is exclusively based on
* USER THEORY
* ON MISAPPROPRIATION OF EVIDENCES
This is incorrect in eyes of law.
H. ALUMINUM FOILS IS A SPECIE AND SHEETS IS A GENUS
That ld tax board held that due to the change in thickness of the sheets , the
aluminum foils is a different commodity and distinct commodity, but due to
mere change in thickness due to mechanical process adopted by non-ferrous
sheets does not go out of the purview of notification dated 31/12/1975.
- The aluminum foil is species of non ferrous, so aluminum foils fits under the
genus of non ferrous as per the notification dated 31/12/1975.
I. MECHANICAL PROCESS MAY CHANGE THE END PRODUCT BUT
NATURE AND QUALITY DOESNT CHANGE.
That ld. Tax board held that the petitioners has uses aluminum foils,
aluminum sheets, aluminum foil sheets and aluminum foil paper/ polythene
backed, such names in its BILLS instead of using non-ferrous sheets. So,
aluminum foil is a separate and distinct commodity to Aluminum sheets
-It is submitted that the name of end product may changed due to the
mechanical/ technological processes but nature , quality still comes under
same description.

J. IMPUGNED ORDER 31/12/2009 AGAINST RATIO DECIDENDI AND

JUDICIAL COMMITTEE
On 8/2/1999 by its judgement ld tax boiard itself accepted that aluminum foils
comes under non-ferrous sheets.
-

On 8/1/2007 RHC set aside order of ld tax board dated 8/2/1999 merely
because
The opportunity of rebuttal of evidences was not provided to the department

So mere quashing order dated 8/2/1999 findings does not lose its sanctity in

the eyes of law.

Ld tax board should consider question of law framed by RHC in judgement
dated 8/1/2007 , while passing the impugned order dated 31/12/2009.
k. NOTIFICATION DATED 13/6/1985 IS SPECIFIC IN NATURE AND IN
ABROGATION OF PREVIOUS NOTIFICATION.
That as per notification dated 13/6/1985 u/s 8(5) of central sales tax act
Prescribing that rate of tax is 1% on
interstate sales of aluminum foils for 5 years
It cannot be said by the department that prior to notification dated 13/6/1985
aluminum foil did not fall in notification dated 31/12/1975.

As notification dated 31/12/1975 is general in nature covers all types of sheets

and includes aluminum foils in its ambit.

But notification dated 13/6/1985 is specific in nature

and debarred the

assessee to take benefit in notification dated 31/12/1975.

As aluminum foil including in notification 31/12/1975 and notification dated
13/6/1985 is only clarificatory.

Thus impugned order dated 31/12/2009 should be quashed and said aside
L. LEGISLATURE INTENTION TO GIVE WIDE EFFECT OF NON FERROUS
SHEETS
That legislature intention to give wide effect of articles within the ambit of non
ferrous sheets, no restricted filed and scope. As sheets includes various sheets
as aluminum foils and aluminum sheets
M. SHEET IS GENUS AND FOIL IS SPECIE
That the word sheets in plural sense and indicates all types of sheets intended
to be covered within the notification.
SHEET = GENUS
FOIL = SPECIE
N. MECHANICAL PROCESS DOESNT CHANGE COMMODITY
7

That ld tax board erred in holding that

Aluminum foils, are different commodity & distinct from non ferrous sheets
So, mere process of laminating and thinning of non ferrous sheets to make
aluminum foils not change the substantial identity , character and essential
nature of non ferrous sheets.
O. REVENUE FAILED TO DISCHARGE THE BURDN IN REBUTTAL
That the revenue department completely failed to discharge their burden by not
produced any kind of cogent or contrary evidence, In their rebuttal to the
evidences produced by assessee or to the evidences as per record.
That ld tax board also failed to examined evidences produced by assessee. So,
impugned order dated 31/12/2009 should be quashed and set aside.
P. WORD (FOIL AND SHEETS) IS NOT DEFINED IN RST,CST AND RULES
That word (FOIL AND SHEETS) is not defined in RST,CST AND RULES
So as per dictionary meaning of Webster , chambers and oxford.
As ld board failed to consider the meaning from dictionary in its vide order
dated 31/12/2009 but, ld tax board considered above dictionary meaning in
its judgement dated 8/2/1999.
Q. NOTIFICATION 13/6/1985 WAS NOT ISSUED IN SUPPRESSION OF
EARLIER NOTIFICATION 31/12/1975
That notification 13/6/1985 was not issued in suppression of earlier
notification 31/12/1975. If the state legislature intended to take away the
benefit available in earlier notification then definitely assessee should be get
benefitted from earlier notification.

R. ALUMINUM FOIL IS NOT ONLY PACKING MATERIAL

That ld tax board wrongly place reliance on judgement 2005 12 TAX
UPDATE 280 The core question in that matter is
Whether aluminum foil supplied by
the assessee to railway department
is used in packing material or not?
So, facts and controversy involved in above and present matter are totally
different and ld tax board errerdly held that aluminum foil is packing material,
but there are more than 100 use of aluminum foil and used in packing
material is one of them.

PRAYER
WHEREFORE in the light of the facts stated, issues raised, authorities
cited and arguments advanced, it is most humbly prayed before this
Honourable Court that it may be pleased to declare:
1. That impugned order dated 31/12/2009 passed by ld tax board should be
quashed and set aside.
2. That remanding the matters to the assessing authority kindly be quashed
and set aside.
3. That the aluminum foil is non ferrous sheets and liable to taxable at rate of
1% as per notification dated 31/12/1975.
4. That kindly restore the orders passed by deputy commissioner (appeals)
dated 16/3/1999.
And pass any other order that it deems fit. All of which is respectfully
submitted.

DATED

COUNSEL FOR PETITIONER

8/10/2013

SHUBHAM MODI

RELEVANT SECTION OF LAW APPLIED

REVISION PETITION U/S 84 RAJASTHAN VAT ACT 2003
u/s 12 A of raj sales Tax act, 1954
U/S 37 of RST Act 1994 before deputy commissioner appeals for rectification