Mr. Vineet Kothari, J. (Oral)—The short, but an interesting question involved in these revision petitions is about rate of taxability of ''Multi Functional Device'' sold by the Assessee-Companies, which carry out the function of scanning, photocopier fax machine and as computer printer, under the provisions of the Rajasthan Value Added Tax Act, 2003 (hereinafter referred to as ''the VAT Act'') enforced within the State of Rajasthan with effect from 01.04.2006.
2. The facts have been illustratively taken from S.B. Sales Tax Revision Petition No. 21/2010 - M/s. Hewlett-Packard India Sales Pvt. v. Deputy Commissioner (Appeals)-I, Commercial Tax Department, Jaipur and anr and S.B. Sales Tax Revision Petition No. 24/2015 - M/s. Kores (India) Ltd, v. The Assistant Commissioner, Commercial Taxes, Anti Evasion, Rajasthan-I, Jaipur. All these cases were heard finally at this stage by consent of both the sides.
3. All these revision petitions are pertaining to the assessment of the Assessee-Companies between the period 01.04.2006 to 09.03.2010, and arise out of the order of the learned Rajasthan Tax Board, Ajmer, holding against the Assessee-Companies that such Multi-Functional Devices are not Computer Printers or Computer Peripherals, taxable @ 4% under Schedule IV of the VAT Act, but are taxable, for the aforesaid period @ 12.5%/14% in the Residuary Entry of Schedule V of the said Act.
4. The Assessee-Companies collected and paid the tax on sales of the said Multi Functional Devices @ 4% in Schedule IV for the aforesaid period, whereas the Revenue demanded tax @ 12.5%/14% in the Residuary Entry for the aforesaid period. But the learned Tax Board set aside the penalty imposed on the Assessee-Companies, by the impugned orders, and therefore, as far as imposition of tax at higher rate is concerned, the Assessee-Companies felt aggrieved and filed the present revision petitions, while the Revenue filed these revision petitions, aggrieved by the deletion of penalty imposed by the Assessing Authority under Section 61 of the VAT Act, before this Court.
5. Before proceeding further, it is considered appropriate to reproduce the relevant portions of the impugned orders dated 16.09.2009 and 31.07.2015 passed by the learned Tax Board, herein below, for ready reference :-
"Order dated 16.09.2009 in Appeal No. 1576/2008/Jaipur - M/s. Hewlett-Packard India Sales Pvt. Ltd. v. Commercial Taxes Officer, Anti Evasion, Zone-II, Jaipur [STR No. 21/2010 - M/s. Hewlett-Packard India Sales Pvt. Ltd. v. Deputy Commissioner (Appeals)-1, Commercial Tax Department, Jaipur.]
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bl izdj.k esa fookfnr fcUnq vihykFkhZ }kjk fodz; fd;s x;s ^vkWy bu ou fizUVlZ* mRikn ij dj nj ns;rk ls lEcfU/kr gSA vihykFkhZ }kjk ''Multi Functional Printers'' e''khu dk eq[; Function fizafVax rFkk vfrfjDr Function Scanning, Copying & Faxing ekudj bl mRikn dks oSV vf/kfu;e dh vuqlwfp IV ds Hkkx ^,* dh dz0la0 3 ds vUrxZr doMZ ekurs gq, fcdzh dj 4 izfr''kr dh nj ls pktZ fd;k tkdj fodz; fd;k x;k gSA oSV vf/kfu;e dh vuqlwph IV ds Hkkx ^,* dh dz0la0 3 dh ,UV~h fuEu izdkj gS%&
"Computer system and peripherals, computer printers and electronic diaries."
vihykFkhZ O;ogkjh ds fo}ku vfHkHkk"kd }kj vihykFkhZ ds mRikn ds lEcU/k esa U;kf;d n`"Vkar 1990(50)ELT 663 (Tribunal) o 1991(53) ELT A32 (SC); 2001(30) ELT 165 (Tri.Del), 2001(131) ELT 422 (Tri.Del) ,oa 2006(197) ELT 498 (Tri-Mumbai) dk gokyk nsrs gq, ;g rdZ fn;k x;k fd ''Multi Functional Machine'' ds eq[; dk;Z lEiknu ,oa eq[; iz;kstu rFkk bldh External Computer ls Connectivity & capability ds vk/kkj ij dLVe foHkkx }kjk Customs Tariff Act, 1975 ds rgr residual Heading 8472.90 ds rgr as office machine ds LFkku ij computer ds input-output goods ds :i esa Heading 8471.60 ds vUrxZr vkuk vo/kkfjr fd;k x;k gSA
fo}ku vfHkHkk"kd vihykFkhZ }kjk m)fjr mDr U;kf;d n`"VkUr dLVe foHkkx }kjk fu/kkZfjr VsfjQ ds iz;kstukFkZ goods dk Customs Tariff Act, 1975 ds izko/kkuksa ds rgr oxhZdj.k fd;s tkus ls lEcfU/kr gSaA vr% dLVe foHkkx }kjk dLVe VsfjQ ds mn~ns''; ls fd;s x;s eky ds mDr oxhZdj.k dks vihykFkhZ dh ^vkWy bu ou fizaVlZ* e''khu dks oSV vf/kfu;e dh vuqlwfp IV ds Hkkx ^,* dh dz0la0 3 ds rgr oxhZdj.k fd;s tkus dk vk/kkj ugha ekuk tk ldrkA
vihykFkhZ ds mRikn dks dEI;wVj ls tksM+dj fizafVax ds vykok Ldsfuax] dkWfiax] o QSDl ds Functions Hkh lEikfnr fd;s tk ldrs gSa] blfy, bl mRikn dks dsoy ek= Computer Printers dh Js.kh esa ugha j[kk tk ldrkA blh izdkj vihykFkhZ O;ogkjh ds mRikn dk QksVks dkWfi;lZ ds :i esa Lora= mi;ksx gksus ds dkj.k ls dsoy ''Computer system & peripherals'' Hkh ugha ekuk tk ldrkA vr% vihykFkhZ }kjk fodz; fd;s x;s ^vkWy bu ou fizUVlZ* lEiw.kZ e''khu (Complete Machine) dks oSV vf/kfu;e dh vuqlwph IV ds Hkkx ^,* dh dz0la0 3 ds vUrxZr oxhZd`r ugha fd;k tk ldrkA blh rjg vihykFkhZ O;ogkjh ds mRikn ds pkj Functions esa ls dsoy ,d Function QSDl gksus ds dkj.k bldks oSV vf/kfu;e dh vuqlwph ^,* dh dz0la0 7 ds rgr Hkh oxhZd`r ugha fd;k tk ldrkA
bl izdkj fo}ku vihykFkhZ }kjk m)fjr fd;s x;s ekuuh; mPpre U;k;ky; ds U;kf;d n`"VkUr (2004) 140 ,l0Vh0lh0 17 ls lEcfU/kr izdj.k ds rF; orZeku izdj.k ds rF;ksa ls iw.kZr;k fHkUu gksus ls mDr fu.kZ; vihykFkhZ ds ekeyksa esa ykxw ugha gksrk gSA
,slk izrhr gksrk gS fd vihykFkhZ }kjk fodz; fd;s tk jgs vius mDr mRikn ''Multifunctional machine'' dk okf.kfT;d txr esa ^vkWy bu ou fizaVlZ* uke ''computer printers'' ,oa Computer peripherals'' ij vf/klwfpr dj nj dk vuqfpr ykHk mBkus dh n`f"V ls j[kk x;k gSA
oSV vf/kfu;e dh /kkjk 36Mh ds izko/kkuksa ds rgr fdlh mRikn@eky dh fcdzh ij dj nj ns;rk dk fcUnq vk;qDr] okf.kfT;d dj }kjk fofuf''pr fd;k tk ldrk gSA eSllZ RICOH bf.M;k fyfeVsM }kjk mDr fof/kd izko/kkuksa ds rgr vius mRikn Multi Functional Digital Copier Machine dh dj nj ns;rk dk vo/kkj.kk fd;s tkus gsrq vk;qDr] okf.kfT;d dj dks izkFkZu i= izLrqr djus ij vfrfjDr vk;qDr fof/k okf.kfT;d dj foHkkx] jktLFkku] t;iqj ds vkns''k dzekad i&5 lh 19@dj@nj@vfr0 vk;qDr@fof/k@2006 fnukad 25-11-2006 }kjk izkFkhZ ds mRikn Multi Functional Digital Copier Machine ij dj nj 12-5 izfr''kr dh nj ls ns; gksuk vo/kkfjr fd;k x;kA vr% eSllZ RICOH bf.M;k fyfeVsM ds ekeys esa vfrfjDr vk;qDr fof/k] okf.kfT;d dj foHkkx] jktLFkku] t;iqj ds vkns''k fnukad 25-11-2006 }kjk fofuf''pr dh xbZ dj nj oSV vf/kfu;e dh /kkjk 36 ds izko/kkuksa ds rgr dh xbZ gSA
fo}ku vfHkHkk"kd vihykFkhZ }kjk m)fjr U;kf;d n`"VkUr 2003 132 ,l0Vh0lh0 226 ds izdj.k esa O;ogkjh }kjk fiNys dbZ o"kksZa ls eDdk cht dk 4 izfr''kr dh nj ls fodz; djrs gq, fjVuZ dj fu/kkZj.k vf/kdkjh dks is''k fd;s tkus ds dkj.k vk;qDr] okf.kfT;d dj }kjk tkjh funsZ''kksa dh ikyuk esa mDr eDdk cht dh fcdzh ij 9 izfr''kr dj nj ns;rk ds uksfVl dks vikLr djrs gq, dj fu/kkZj.k vf/kdkjh }kjk Lora= :i ls fof/kd izko/kkuksa ds vuq:i dj nj dh ns;rk dk fofu''p; fd;k tkdj dj fu/kkZj.k djus dk fu.kZ; ikfjr fd;k x;kA
bl izdkj fo}ku vf/koDrk vihykFkhZ }kjk m)fjr fd;s x;s mDr U;kf;d n`"VkUr ds rF; eSllZ RICOH bf.M;k fyfeVsM ds izdj.k ds vuq:i ugha gksus ls mDr fu.kZ; eSllZ RICOH bf.M;k fy0 ds lEcU/k esa vfrfjDr vk;qDr fof/k ds vkns''k fnukad 25-11-2006 dh iqf"V djus lEcU/kh ekuuh; dj cksMZ dh [k.MihB ds fu.kZ; fnukad 09-10-2007 ds lEcU/k esa izklafxd ugha gSA
vihykFkhZ O;ogkjh }kjk fodz; fd;s x;s ^vkWy bu ou fizaVlZ* ds pkjksa dk;Z lEiknu (Functions) eSllZ RICOH bf.M;k fy0 ds ''Multi Functional Digital Copier Machine'' }kjk lEikfnr Functions fizafVx] Ldsfuax] dkWfiax o QSDl ds vuq:i gh gSA ,slh fLFkfr esa eSllZ RICOH bf.M;k fy0 ds izdj.k esa ekuuh; jktLFkku dj cksMZ dh [k.MihB }kjk vihy la[;k 189@2007@t;iqj esa ikfjr fu.kZ; fnukad 09-10-2007 esa izfrikfnr fl)kUr ds vuqlkj vihykFkhZ }kjk fodz; fd;s x;s ^vkWy bu ou fizaVlZ* vFkok Multi Functional Printers ds izdj.k esa oSV vf/kfu;e dh vuqlwph V ds vUrxZr fu/kkZfjr dj nj 12-5 izfr''kr ls vkjksi.kh; gSA
mDr foospu ds vk/kkj ij vihykFkhZ O;ogkjh }kjk fodz; fd;s x;s ^vkWy bu ou fizaVlZ* vFkok Multi Functional Printers dks oSV vf/kfu;e dh vuqlwph IV ds Hkkx ^,* dh dz0la0 3 ds vUrxZr oxhZd`r fd;s tkus dk dksbZ U;k;ksfpr vk/kkj ugha gksus ds dkj.k mDr mRikn@eky dh fcdzh ij oSV vf/kfu;e dh vuqlwph V ds vUrxZr dj 12-5 izfr''kr dh nj ls ns; gksxkA vr% vihykFkhZ O;ogkjh }kjk o"kZ 2006&07 dh izFke] f}rh;] r`rh; frekgh ds nkSjku ^vkWy bu ou fizaVlZ dh dh xbZ fcdzh ds i.;korZ ij 12-5 izfr''kr dh nj ls dj ns;rk fu/kkZfjr djrs gq, vUrj dj dh nj ls dj o C;kt vkjksfir fd;s tkus gsrq dj fu/kkZj.k vf/kdkjh }kjk ikfjr vkns''k fnukad 13-03-2007 iw.kZr;k fof/klEer ,oa mfpr gSA ,slh fLFkfr esa mik;qDr vihYl }kjk dj fu/kkZj.k vf/kdkjh ds mDr vkns''k fnukad 13-03-2007 }kjk vihykFkhZ ds fo:) vkjksfir vUrj dj dh nj ls dj o C;kt jkf''k dks ;Fkkor j[kus esa dksbZ fof/kd Hkwy ugha dh xbZ gSA
bu izdj.kksa esa dj fu/kkZj.k vf/kdkjh }kjk vihykFkhZ O;ogkjh ds 12-5 izfr''kr dh dj ns;rk ds eky (goods) ^vkWy bu ou fizaVlZ* dks 4 izfr''kr dh nj ls dj ;ksX; ekuus ds d`R; dks djkioapu ekudkj oSV vf/kfu;e dh /kkjk 61 ds rgr ''kkfLr :i;s 29]61]192@& vkjksfir dh xbZ gSA
bl lEcU/k esa fo}ku vfHkHkk"kd vihykFkhZ }kjk m)fjr fd;s x;s U;kf;d n`"Vkar 2004 137 ,l0Vh0lh0 537 esa ;g vfHkfu/kkZfjr fd;k x;k gS fd ;fn O;ogkjh }kjk eky ds dz;@fodz; ds jsdkMZ@fjVuZ esa n''kkZ;s x;s vkWadM+ksa ckckr dksbZ fookn ugha gS vkSj fcdzh ds bu vkWadM+ksa ds vuqlkj dj vnk fd;k x;k gks rks foHkkx }kjk O;ogkjh ds fcdzh dk ns; dj nkf;Ro de djus dh ea''kk ls fcdzh dks fNik;k (conceal) tkuk lkfcr fd;s fcuk eky ds oxhZdj.k dh xyr ,UV~h ds rgr de nj ls dj vnk djus ds vk/kkj ij ''kkfLr vkjksfir djuk vuqfpr gSA vihykFkhZ ds izdj.k esa Hkh izFke n`"V~;k fcdzh ds vkWadM+ksa ds xyr n''kkZus vFkok dj nkf;Ro de djus ds bjkns ls fcdzh dks fNikus (Concealment) dk ekeyk ugha gSA O;ogkjh }kjk fodz; fd;s x;s ^vkWy bu ou fizaVlZ* dks vius Lrj ij oSV vf/kfu;e dh vuqlwph IV ds Hkkx&, dh dz0la0 3 ds vUrxZr ekudj 4 izfr''kr dh nj ls fcdzh dj vnk fd;k x;k] tcfd mDr eky oSV vf/kfu;e dh vuqlph V ds vUrxZr oxhZdj.k ;ksX; gksus ds dkj.k bl ij dj 12-5 izfr''kr dh nj ls ns; FkkA vr% fo}ku vfHkHkk"kd vihykFkhZ }kjk m)`r fd;s x;s U;kf;d n`"VkUr 2004 137 ,l0Vh0lh0 537 esa izfrikfnr fl)kUr dks n`f"Vxr j[krs gq, vihykFkhZ O;ogkjh }kjk fodz; fd;s x;s eky dk oxhZdj.k xyr ,UV~h ds vUrxZr djrs gq, de nj ls dj vnk fd;s tkus ds d`R; dks djkioapu ekurs gq, dj fu/kkZj.k vf/kdkjh }kjk tkdj oSV vf/kfu;e dh /kkjk 61 ds vUrxZ ''kkfLr vkjksfir djuk U;k;ksfpr izrhr ugha gksrkA
ifj.kker% vihykFkhZ dh rhuksa vihysa vkaf''kd :i ls Lohdkj djrs gq, vihykFkhZ O;ogkjh ds vkykSP; vof/k dh fczdh ds i.;korZ ckcr dj fu/kkZj.k vf/kdkjh }kjk oSV vf/kfu;e dh /kkjk 61 ds rgr vkjksfir ''kkfLr dks ;Fkkor j[kus dh lhek rd mik;qDr vihYl] okf.kfT;d dj izFke] t;iqj dk vihyk/khu vkns''k fnukad 03-01-2008 vikLr fd;k tkrk gS rFkk dj fu/kkZj.k vf/kdkjh }kjk vkjksfir vUrj dj o C;kt dh jkf''k dh iqf"V djus lEcU/kh mik;qDr vihYl dk ''ks"k vkns''k ;Fkkor j[kk tkrk gSA
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Order dated 31.07.2015 in Appeal No. 240/2011/Jaipur - M/s. Kores (India) Ltd. v. Commercial Taxes Officer, Anti Evasion, Zone-III, Jaipur STR No. 24/2015 - M/s. Kores (India) Ltd. v. Assistant Commissioner, Commercial Taxes, Anti Evasion, Rajasthan-1, Jaipur.
vihykFkhZ ds fo}ku vfHkHkk"kd us Computer Printer including MFD dks vuqlwph -IV ds ikVZ&, dh izfof"V la[;k 3 vuqlkj 4 izfr''kr ls dj ;ksX; gksus dks U;k;ksfpr cryk;k rFkk rdZ fn;k fd MFD 4 izfr''kr ls dj ;ksX; ugha gksuk izekf.kr djus dk Hkkj foHkkx ij gS ,oa foHkkx bls izekf.kr ugha dj ik;k gSA vius rdZ ds leFkZu esa 1996 10 ,l0lh0lh0 413 ;wfu;u vkWQ bf.M;k cuke xjokjs uk;yksUl fyfeVsM dks m)fjr fd;k gSA dFku fd;k fd ekuuh; mPpre U;k;ky; us ,0vkbZ0vkj0 1937 ,l0lh0 597 Muyi bf.M;k cuke ;wfu;u vkWQ bf.M;k esa fl)kUr izfrikfnr fd;k gS fd %&
"When an article has by all standards a reasonable claim to be classified under an enumerated item in the tariff schedule, it will again very principle of classification to deny it the parentage and consign it to an orphanage of the residuary clause."
vU; U;kf;d fu.kZ; (2007) 74 oh0,l0Vh0 545 ,l0lh0 uwjh eSuwj fey] (2007) 8 oh0,l0Vh0 661 ,l0lh0 VwV~Q lsQ~Vh Xykl b.MLV~ht] (2008)14 oh0,l0Vh0 259 (,l0lh0) ekSjh ;hLV bf.M;k izk0fy0 (2006)145 ,l0Vh0lh0 625 ,l0lh0 fgUnqLrku iksYl dkWiksjs''ku Hkh m)fjr fd;s gSaA (2006)145 ,l0Vh0lh0 625 ds fu.kZ; esa m)fjr fd;k gS fd %&
it is settled law that when one particular item is covered by on specified entry then the Revenue is not permitted to travel to the residuary entry. The Residuary entry is meant only for those categories of goods which clearly fall outside the ambit of specified entries.
vihykFkhZ ds fo}ku vfHkHkk"kd us vfxze dFku fd;k gS fd osV vf/kfu;e ds rgr fodz; ds gj fcUnq ij dj laxzg fd;s tkus ds izko/kku gSa rFkk fodz; dh bl vof/k esa dzsrk }kjk fodzsrk dks pqdk;s x;s oSV dk vkbZ0Vh0lh0 dzsrk dks ns; gSA izLrqr izdj.kksa esa Hkh vihykFkhZ us fodzsrk eSllZ gkzwySV iSdMZ bf.M;k lsYl izk0fy0 ls eky MFD dz; fd;s x;s gSaA eSllZ gkzwySV iSdMZ bf.M;k lsYl izk0fy0 ij foHkkx }kjk MFD ij 8-5 izfr''kr dh nj ls vUrj dj olwy dj fy;k x;k gS] tks fd oSV bUokW;lst ls Li"V gSA foHkkx }kjk olwyh ds lEcU/k esa dj fu/kkZj.k vf/kdkjh ds i= dzekad i01@l0vk0@,bZ@tksu&II@2011&12@3383] 3384] 3385] 3386 fnukad 20-01-2012 gksuk crk;k gSA MFD ij fodzsrk }kjk pqdk;s x;s dj dk eqtjk fodzsrk dks fn;k tkuk fof/klEer gS] ysfdu dj fu/kkZj.k vf/kdkjh us bls vLohdkj fd;k gS rFkk vihyh; vf/kdkjh us mldh iqf"V dj fof/kd Hkwy dh gSA vr% vius mDr rdksZa ds vk/kkj ij vihykFkhZ O;ogkjh }kjk izLrqr vihyksa dks Lohdkj djus dh izkFkZuk dh xbZA
izR;FkhZ jktLo dh vksj ls fo}ku mi jktdh; vfHkHkk"kd us dFku fd;k fd jkT; ljdkj }kjk tkjh vf/klwpuk la[;k ,Q012 22,QMh@VSDl@10&83 fnukad 09-03-2010 esa Hkh MFD dks vuqlwph IV ds dze la[;k 65 esa ikVZ&, ds dze la[;k 3 esa ls MFD ds i`Fkd~ vfLrRo gksus ds dkj.k vf/klwpuk dks Hkry{kh izHkko ls ykxw ugha fd;k tk ldrk gSA mudk dFku gSA mudk dFku gS fd jktLFkku dj cksMZ dh [k.MihB }kjk vihy la[;k 1779@2012 ls 1783@2012@ t;iqj eSllZ buxzke ekbdzks bf.M;k fyfeVsM] lqn''kZuiqjk b.MfLV~;y ,fj;k] t;iqj cuke okf.kfT;d dj vf/kdkjh] izfrdjkioapu] tksu&r`rh;] t;iqj fu.kZ; fnukad 10-09-2013 esa Multi Functional Device dks 12-5 izfr''kr dh nj ls dj ns;rk fu/kkZfjr dh xbZ gSA vr% dj cksMZ ds izks)fjr U;kf;d n`"Vkar ds vkyksd esa] vihykFkhZ O;ogkjh }kjk izLrqr vihyksa dks vLohdkj dj] nksuksa voj vf/kdkfj;ksa }kjk ikfjr vkns''kksa dh iqf"V djus dh izkFkZuk dh x;hA
mHk;i{kh; cgl lquh x;hA fjdkMZ dk ifj''khyu fd;k x;kA fo}ku vfHkHkk"kd us izdj.kksa esa izfrdjkioapu ''kk[kk ds vf/kdkfj;ksa dk {ks=kf/kdkj ugha gksus dk rdZ fn;k] tks fd mfpr ugha gS] D;ksafd fdlh O;ogkjh }kjk vf/klwfpr nj ls dj tek ugha djk;k tkrk gS rks ,sls izdj.kksa esa izfrdjkioapu vf/kdkfj;ksa dk {ks=kf/kdkj vk;qDr] okf.kfT;d dj ds ifji= la[;k ,Q03 (,)(9)@T;wfjl@VSDl@lhlhVh@97&2 fnukad 08-05-2001 ds vkyksd esa fuf''pr gSA vr% mDr vkifRr dks [kkfjt fd;k tkrk gSA
tgkWa rd xq.kkoxq.k dk iz''u gS] dj cksMZ dh leUo; ihB ds mij izks)fjr U;kf;d fu.kZ; fnukad 10-09-2013 dk voyksdu djus ds i''pkr~ ge izks)fjr fu.kZ; esa izfrikfnr fl)kUr ls lgefr j[krs gSa] ftldk lqlaxr va''k fuEu izdkj gS%&
ekuuh; mPpre U;k;ky; us dLVe VsfjQ ,DV ds rgr M/s Xerox India Ltd. V/s. Commissioner of Customs, Bombay, 2010(260)bZ0,y0Vh0 161 ,l0lh0 (2011) 03 RGSTR-D-030 ds izdj.k esa Multi Functional Machines Capable of discharging number of functions esa Xerox 5799 model Xerox XD 155 cl esa eq[;r% 85 izfr''kr ikVZl o dEiksusaV~l fizfVax ls lEcfU/kr gksus ds dkj.k mls Printer vo/kkfjr fd;k gSA m)fjr fu.kZ; esa dLVe VsfjQ ,DV ds rgr fookfnr oLrq dks Heading 84.71-84.79 ds vk/kkj ij fu.kZ; fd;k x;k gS] tcfd vf/kfu;e rFkk osV vf/kfu;e dh izfof"V;kWa Li"V gSa] ftu ij dLVe VsfjQ ,DV ds vuqlkj lqfuf''pr ugha fd;k tk ldrkA VsfjQ ,DV esa oLrqvksa ds rduhdh uke ds vk/kkj ij fu/kkZj.k fd;k x;k gSA lEcfU/kr lqlaxr va''k dks m)fjr fd;k tkuk mfpr gksxkA
84.71 - Automatic data processing machines and units thereof; magnetic or optical readers, machines for transcribing data on to data media in coded form and machines for processing such data not elsewhere specified or included.
8471.60 - inputs or output units whether or not containing storage units in the same housing.
84.79 - Machines and mechanical appliances having individual functions not specified or included elsewhere in this Chapter.
mDr Heading ds vk/kkj ij ekuuh; U;k;ky; us Multi Functional Machine dks Heading 84.71 of the Custom Tariff Act 1975 ds rgr Printer ekuk gSA VsfjQ ,DV dk Nomenclature fcdzh dj ds rgr fof''k"B izfof"V;ksa ds gksrs gq, izklafxd ugha gSA
vfrfjDr vk;qDr }kjk osV vf/kfu;e dh /kkjk 36 ds rgr Multi Functional Digital Copier Machine dks Computer Peripheral ds rgr ugha ekurs gq, blesa dEI;wVj ls Lora= :i ls dksfiax o QSDl gksus ds dkj.k bl ij 12-5 izfr''kr ls osV vo/kkfjr fd;k Fkk] ftldh ekuuh; dj cksMZ dh leUo; ihB [k.MihB us fu.kZ; 2008 29 ,l0Vh0Vh 06 ds }kjk iqf"V dh xbZ gSA blds vykok ekuuh; jktLFkku dj cksMZ dh [k.MihB us eSllZ gkzwySV iSdMZ bf.M;k izk0fy0 cuke okf.kfT;d dj vf/kdkjh] izfrdjkioapu tksu&f}rh;] t;iqj ds izdj.k esa fu.kZ; 2009 25 VSDl viMsV 189 esa All in one Printer dks Hkh osV vf/kfu;e dh vuqlwph IV ds Hkkx&, dh dze la[;k 3 dks Computer system and Peripherals, computer printer and electronic diaries. esa ugha ekurs gq, bls Photo Copier Machine dh Js.kh esa vo/kkfjr fd;k gS] blesa Hkh fookfnr oLrq Multi-Functional Printer (MFP) FkkA fu.kZ; ds lqlaxr va''k bl izdkj gS%&
vihykFkhZ ds mRikn dks dEI;wVj ls tksM+dj fizafVax ds vykok Ldsfuax] dkWfiax o QSDl ds Functions Hkh Likfnr fd;s tk ldrs gSa] blfy, bl mRikn dks dsoy ek= ''Computer Printers'' dh Js.kh esa ugha j[kk tk ldrkA blh izdkj vihykFkhZ O;ogkjh ds mRikn dk QksVks dkWfi;lZ ds :i esa Lora= mi;ksx gksus ds dkj.k bls dsoy Computer System & peripherals'' Hkh ugha ekuk tk ldrkA vr% vihykFkhZ }kjk fodz; fd;s x;s ^vkWy bu ou fizUVlZ* lEiw.kZ e''khu Complete Machine dks osV vf/kfu;e dh vuqlwfp -IV ds Hkkx&, dh dz0la0 3 ds vUrxZr oxhZd`r ugha fd;k tk ldrkA blh rjg vihykFkhZ O;ogkjh ds mRikn ds pkj Functions esa ls dsoy ,d Function QSDl gksus ds dkj.k bldks osV vf/kfu;e dh vuqlwph&, dh dz0la0 7 ds rgr Hkh oxhZd`r ugha fd;k tk ldrkA
,slk izrhr gksrk gS fd vihykFkhZ }kjk fodz; fd;s tk jgs vius mRikn ''Multi functional machine'' dk okf.kfT;d txr esa ^vkWy bu ou fizUVlZ* uke ''Computer Printers'' ,oa Computer Peripherals'' ij vf/klwfpr dj nj dk vuqfpr ykHk mBkus dh n`f"V ls j[kk x;k gSA
mDr foospu ds vk/kkj ij vihykFkhZ }kjk fodz; fd;s x;s All in one Printer vFkok MFD dks osV vf/kfu;e dh vuqlwph -IV ds Hkkx&, dh dze la[;k 3 ds vUrxZr oxhZd`r fd;s tkus dk dksbZ U;k;ksfpr vk/kkj ugha gksus ds dkj.k mDr mRikn@eky dh fcdzh ij osV vf/kfu;e dk vuqlph -V ds vUrxZr dj 12-5@14 izfr''kr dh nj ls gksxkA
vr% gLrxr pkjksa izdj.k] mi;qZDr of.kZr U;kf;d fu.kZ; ls vkPNkfnr gksus ds dkj.k vihyh; vf/kdkjh }kjk ikfjr fu.kZ; iw.kZr;k fof/kd gS rFkk blesa fdlh izdkj ds gLr{ksi dh vko'';drk ugha gSA QyLo:i] vihykFkhZ dh vihysa vLohdkj dh tkrh gSaA
ifj.kker% vihykFkhZ O;ogkjh }kjk izLrqr vihysa vLohdkj dh tkrh gSaA
sd/-
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lnL;
sd/-
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6. The relevant entries under the VAT Act, as prevailing for different periods, are also quoted below for ready reference :-
"1. S.No. 65 F. 2(63) FD/Tax/2005-06 dated 01.06.2006
"Computer System and Peripherals, Computer printers and electronic diaries."
2. S.No. 476 F. 12(22) FD/Tax/10-83 dated 09.03.2010
"Computer printers excluding Multi Functional Devices."
3. S.No. 894 F.12(11) FD/Tax/2013-111 dated 06.03.2013
"Computer system and Peripherals, networking items for LAN and WAN including wires and wireless switch, routers, modems, web cams, IP surveillance system, computer printers including Multi Functional Devices and electronic diaries."
7. Mr. Alkesh Sharma, Mr. Sameer Jain with Ms. Mahi Yadav, Mr. M.P. Devnath, Mr. Siddharth Ranka, Mr. M.I. Khan, Mr. Devendra Kumar with Mr. Dinesh Kumar, Ms. Pragya Sethia and Mr. Javed Khan, learned counsel for the Assessee-Companies made the following submissions :
(i) That the Multi Functional Devices comprising of scanner, photocopier, fax machines and computer printer - all-in-one, is nothing but a computer printer or computer system peripheral, and since it has no stand alone function, except when used with the computer, they cannot be taxed under the Residuary Entry, in the face of the specific entries under the aforesaid notifications applicable for the period between 01.04.2006 and 09.03.2010, on the basis of the amendment effected by the notification dated 09.03.20 1 0, excluding the Multi Functional Devices from the said category in Schedule IV prescribing rate of tax @ 4%, from the definition of computer printers, which later on, vide notification dated 06.03.2013, they were again included along with the various items of computer peripherals and accessories, taxable @ 4%.
(ii) The learned counsels for the Assessee-Companies urged that the notification dated 09.03.2010 issued in pursuance of the Budget Speech of the Hon''ble Finance Minister made on the floor of the Rajasthan State Legislative Assembly on 09.03.2010, for excluding the Multi Functional Devices from Schedule IV, could not operate retrospectively for the period prior to 09.03.2010, which is the period of Assessment in the present cases, namely from 01.04.2006 to 09.03.2010, and by necessary implication thereof, the Revenue could not contend so and the learned Tax Board had erred in so holding that these Multi Functional Devices were taxable in Residuary Entry of Schedule IV of the VAT Act @ 12.5%/14%. Para No. 292 of the Budget Speech of the Hon''ble Finance Minister dated 09.03.2010 on the Floor of the Rajasthan State Legislative Assembly is quoted below for ready reference
"292- dfri; oLrqvksa ;Fkk dksyrkj] fcVqeSu] ykbZeLVksu] tSujsVj ,oa bUoVZlZ] vkWVkseksckby ckWMh] ih0ch0,Dl] bySDV~ksMl] czk.MsM jsMhesM xkjes.V~l] eYVhQaD''kuy fMokbZlst] ;w&Qkse] dqN dSfedYl ,oa gkbZ oksYVst dscYl dks oSV vf/kfu;e dh vuqlwph -IV ls gVk;k tkuk izLrkfor gSA"
8. Learned counsels for the Assessee-Companies also submitted that in view of the common parlance test or trade parlance test, which is to be invoked and applied in such cases, while deciding the question of applicability of rates to the particular commodities, whose sales taxability is in question, the commodity in the present case, namely, Multi Functional Devices, is nothing but computer printers, broadly, or computer peripheral in any case, and there is no justification of taking them out of these specific entries and treating the same as taxable under the Residuary Entry, which can be invoked and applied only when by no stretch of imagination, the commodity in question can fall under the specified entries.
9. Learned counsels for the Assessee-Companies also submitted that the controversy with regard to this very commodity under the provisions of the Customs Act and VAT Act has been decided by various Courts in the following judgments, which the learned counsels relied upon and they also urged that there is no contra judgment available, which holds that the said Multi Functional Devices are taxable under the Residuary Entry under the VAT law or Central Excise Act. In the first instance, learned counsels for the Assessee-Companies relied upon the following judgments of the Hon''ble Supreme Court :-
(i) Xerox India Ltd. v. Commissioner of Customs, Mumbai, 2010(260) E.L.T. 161 (SC).
(ii) Canon India (P) Ltd. v. State of Tamil Nadu, 2015(80) VST 483 (Mad.) (DB).
(iii) State of Tamil Nadu v. CMC Ltd., 2014(75) VST 413 (Mad.) (DB).
(iv) Xerox Mody Corp. Ltd. v. Commissioner of Customs, Mumbai, 2001(13) E.L.T. 165 (Cegat, Delhi).
10. Learned counsels for the Assessee-Companies, therefore, urged that the additional tax imposed by the Assessing Authority and upheld by the learned Tax Board, treating the items to be falling under the Residuary Entry, deserves to be quashed and set aside, and insofar as the learned Tax Board setting aside the penalty imposed on the Assessee-Companies, the impugned orders may be maintained and the question of imposition of penalty does not arise, since irrespective of the rate of tax applicable to the Assessee-Companies had disclosed all the relevant particulars in their returns and there was no element of mens rea applicable in the present cases, and even if it is held to be a debatable issue, the imposition of penalty could not be justified, and therefore, the levy of penalty deserves to be set aside, and has rightly been set aside by the learned Tax Board.
11. On the other hand, Mr. R.B. Mathur with Ms. Tanvi Sahai, Mr. Archit Bohra and Ms. Meenal Ghiya and Mr. Nitin Jain, learned counsels for the Revenue urged that the intention of the legislature of excluding the Multi Functional Devices from the category of computer printers was clarified in pursuance of the Budget Speech of the Hon''ble Finance Minister dated 09.03.2010, quoted above, and subsequent notification issued on the same date i.e. 09.03.2010 and in the face of this legislative clarification, the arguments of the learned counsels for the Assessee-Companies, that the Multi Functional Devices were included within the definition of computer printers, cannot be sustained and the learned Tax Board was justified in upholding the contention of the Revenue that the taxability of these items should be under the Residuary Entry @ 12.5%/14% in Schedule V of the VAT Act.
12. Rebutting the other contention of the learned counsel for the Assessee-Companies, that the said item Multi Functional Device is computer peripheral also, the learned counsels for the Revenue urged that the computer peripherals are only those items, which are attached with the computer systems, like, mouse, keyboard, webcam etc., which can only work in conjunction or with the computer itself, whereas the present commodity in question, Multi Functional Device is a stand alone unit, or office equipment, which can be used even without the computer, like, photocopier in that, or scanner, which produces digital image of the contents, which can be transmitted to the destination user, even through mobile phone, and therefore, there is no justification for treating the same as computer peripheral either. In the absence of the said commodity, not falling either within the definition of computer printers or computer peripheral, in the light of the specific legislative amendment by the notification dated 09.03.2010, in pursuance of the Budget Speech of the Hon''ble Finance Minister dated 09.03.2010, the Assessing Authority as well as the learned Tax Board cannot be faulted with, in holding that the commodity in question was taxable in the Residuary Entry @ 12.5%/14%. They also urged that the case laws relied upon by the learned counsels for the Assessee-Companies under the Customs Act, where the entries were different and much wider then the entry in the VAT law, with which this Court is concerned, and therefore, those judgments are not applicable to the present cases. The learned counsels for the Revenue also submitted that the imposition of penalty was also justified in the present cases, since the Assessee-Companies deliberately paid the lesser rate of tax @ 4%, on the said commodity, instead of 12%/14% under the Residuary Entry and in the past period under the Rajasthan Sales Tax Act, 1994, when the VAT Act was not in force, the Assessee-Companies had themselves paid the tax on the sales of these commodities under the Residuary Entry of the Rajasthan Sales Tax Act, 1994. However, for this later submission, there was no relevant document produced by the Revenue before this Court in support of this contention.
13. The learned counsels for the Revenue also submitted that the learned Tax Board, in one case of RICOH India Ltd., the Additional Commissioner of Commercial Taxes under Section 36 of the VAT Act decided this controversy in favour of the Revenue that the Multi Functional Devices are not IT products or its peripherals, and even the learned Tax Board decided this question against the Assessee, against which a revision petition filed by them, namely, S.B. Sales Tax Revision Petition No. 81/2008 - M/s. RICOH India Ltd. v. Rajasthan Tax Board, Ajmer and anr., came to be dismissed by a coordinate Bench of this Court on 28.11.2014, for want of prosecution. Therefore, the learned counsels for the Revenue urged that the order of the Additional Commissioner and the learned Tax Board on this issue, in this manner, helps the case of the Revenue.
They also relied upon the judgment of the learned Single Judge of this Court in the case of RayBan Sun Optics India Ltd. v. Dy. Commissioner (Appeals), Commercial Tax Department (S.B. Sales Tax Revision Petition No. 78/2012 a/w other connected matters, decided on 15.10.2013), in which the learned Single Judge of this Court held that RayBan goggles did not fall within the entry of "Spectacles" part and components thereof, "contact lens" and "lens cleaner", taxable @ 4%,but was taxable in the Residuary Entry of Schedule V @ 12.5%. The learned counsels for the Revenue also justified the imposition of penalty on the Assessee-Companies on this ground and submitted that the question of mens rea was not at all relevant in these cases of fiscal liability, and the learned Tax Board has erred in setting aside the penalty imposed by the Assessing Authority on these Assessee-Companies, and therefore, they prayed that while, the revision petitions filed by the Assessee-Companies deserve to be dismissed, those of the Revenue before this Court on the question of penalty deserve to be allowed, and the penalty in question deserves to be restored.
14. I have heard the learned counsels for the parties and perused the record, the judgments of the learned Tax Board impugned in these revision petitions as well as the judgments relied upon by both the sides on the aforesaid question.
15. In the considered opinion of this Court, the revision petitions filed by the Assessee-Companies deserve to succeed, while the revision petitions filed by the Revenue must fail. The reasons are as follows.
16. The Multi Function Device comprising of computer printer, fax machine, photocopier and scanner - all-in-one, with the fast technology development, is an office equipment, which combines the aforesaid three or four devices and functions in one unit, and is largely used while attached with computer, though it may be used in some respects, as stand alone equipment, or even with or without being attached to the computer, like fax machine, as a part of it. The scanner, which produces digital image of the documents canned can be used only with the aid of computers, if the scanned image has to be transmitted to any other destination, though such transmission can be made possible through mobile phone also, as contended by the learned counsels for the Revenue. With the technology fast developing, it is now possible to do so and use Multi Functional Device with remote sensors in the computer system or Wi-fi. Therefore, actual and physical connection with the computer may not be even necessary. The major user of the Multi Functional Devices, the taxability of which is in question before this Court, is as a computer printer and one study in this regard produced by the learned counsels for the Assessees by the ''World Book Encyclopedia'', indicates that typical page consumption analysis discloses that of the total output, 67% is printed, 30% is copied and 3% is faxed. The Assessees before this Court also contended that the dominant use of Multi Functional Device in question is computer printer only, with which the documents in the computer system is printed with the help of the said equipment or machine. The dissection or separation of the various parts of this machine to decide the taxability of rate thereof, is not called for, but if admittedly, this device can be used as computer printer also, there appears to be no justification to tax it in the Residuary Entry, ignoring the specific entry relating to computer printers and its peripherals. It is well settled legal position that the Residuary Entry can be resorted to only if the commodity in question cannot be brought under the specific entries, and this proposition, is not disputed by either side before this Court.
17. That as a matter of fact, the entry is wider, which includes not only computer printers, but computer peripherals also. This Court finds no justification in the contention raised by the learned counsels for the Revenue, that the word ''peripherals'' has to be construed narrowly to limit and include only accessories like, mouse, webcam or keyboard, as computer peripherals, to be taxed @ 4% under the said entry, and not to include therein the Multi Functional Devices.
18. In fact, the legislative amendment place on record before this Court indicates to the contrary, that the State Government itself only at one point of time between 09.03.2010 and 06.03.2013 specifically excluded the Multi Functional Device from the entry relating to computer system and its peripherals and computer printers. The purpose of this exclusion is not clear, but the fact that it was again brought within the umbrella of items and peripherals relating to computer system with effect from 06.03.2013, clearly shows that these products used as accessories and peripherals of computer system, definitely were not intended to be taxed in the Residuary Entry.
19. The period of assessment before this Court is even prior to such exclusion of Multi Functional Devices from the entry relating to computer printers and computer peripherals. By no stretch of imagination, such exclusion with effect from 09.03.2010, could affect the period prior to it, namely, between 01.04.2006 to 09.03.2010. On the other hand, the exclusion of Multi Functional Devices from the entry relating to computer printers and computer peripherals could imply that prior to 09.03.2010, these products were very much included within the ambit and scope of terms "computer printers" and "computer peripherals".
20. the decision of the Hon''ble Supreme Court in the case of Xerox India Ltd. v. Commissioner of Customs, Mumbai (supra) is of immense help in this regard. The Entry No. 8471.60 there, reads as under:-
"8461.70. Inputs or output units whether or not containing storage units in the same housing."
In para 13 of the said judgment, the Hon''ble Supreme Court held that about 85% of the total parts and components along with manufacturing cost is allocated to printing and it is to be used principally in Automatic Data Processing Machine (ADPM) and it is also connectible to the Central Processing Unit (CPU), and therefore, it is classifiable in entry 84.71.60 and not in the Residuary Entry 84.79.89. The relevant paras No. 13 to 15 of the judgment in Xerox India Ltd. v. Commissioner of Customs, Mumbai (supra) are quoted below for ready reference
"13. It is not in dispute that the Multi-Functional Machines in question Xerox Regal 5799 has about 85% of its total parts and components along with manufacturing cost allocated to printing, as does 74% of the Xerox SD 155 model. This clearly shows that the printing function emerges as the principal function and gives the Multi-Functional Machines its essential charger. Having such a nature, it is also clearly meets the three-fold requirement of Chapter Note-5(B), as it is to be used in ADPM, it is connective to the Central Processing unit, and it is able to accept data in a form (codes or signals), which can be used by the system. Further, there would be no application of chapter Note-5(B) as correctly pointed out by the learned counsel for the appellants, as the Multi-Functional Machines are presented independently. Moreover, since predominant components are relating to printing function, Chapter Note 5(D) also becomes relevant which includes printers under Heading 84.71. We are also satisfied with the contention of the appellants that based on the nature of the functions they perform, the Multi-Functional Machines would serve as input and output device of an ADPM (computer) and thus serve as unit of an ADPM, which on a reading of Chapter Note 5(C), clearly classifies them as falling under Heading 84.71.60 of the Act.
14. We are not in agreement with the submission made by the learned senior counsel for the Revenue. The primary contention of the respondent is that no one function of the Multi-Functional Machines, even printing, can be seen as predominant. This has clearly been shown to be incorrect on facts, and in light of the submissions by the appellants, there has been no case made out for classification of the goods under the residuary Heading 84.79.89. We may also notice that the Tribunal, while considering the decision on which reliance was placed by the learned counsel appearing for the appellants, has stated that those decisions are distinguishable on facts without appreciating that in principle, the case cannot be distinguished.
15. In view of the above, we are of the opinion that the correct classification for the imported Multi-Function Machines involved in this case, namely, models Xerox Regal 5799, Xerox Work centre XD 100 and Xerox Work centre XD 155df should be under the Customs Tariff Chapter Heading 84.71.60. Accordingly, the appeal is allowed and the order passed by the Tribunal in Appeal No. C/300/2002-B dated 5-11-2002 is set aside. Parties to bear their own costs."
21. Similarly, in the case of Canon India (P) Ltd. v. State of Tamil Nadu (supra), the Division Bench of the Madras High Court, in a case arising under the Tamil Nadu General Sales Tax Act, held that image runners (multifunction network printers) would fall under entry 18(i) of Part B of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959 and would be taxable at 4%. The contention of the Revenue that image runner sold by the dealer could act as copier machine and other functions, like printing, scanning and faxing were added features to this machine, and therefore, it was taxable at 12%, was rejected by the Division Bench of the Madras High Court.
22. The extract of the judgment in the case of Canon India (P) Ltd. v. State of Tamil Nadu (supra) is quoted below for ready reference
''The petitioner was a dealer in computer peripherals, image runners, fax machines, toner, photocopier machines and their spares and consumable. It claimed that the image runners (multi-function network printers) would fall under entry 18(i) of Part B of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959, taxable at four per cent. The assessing officer held that the image runner sold by the dealer could act as copier machine and other functions like printing, scanning and faxing were added features to this machine and, therefore, it was taxable at 12 per cent under entry 14(iv) or entry 40 of Part D of the First Schedule to the Act. The Appellate Assistant Commissioner affirmed this and the Appellate Tribunal classified the image runner under entry 13(i) of Part C of the First Schedule to the Act taxable at 10 per cent. On revision petitions: Held, allowing the petitions, that the fact that the goods in question worked in conjunction with a computer, personal, mini, mainframes and lap-tops of analog and digital varieties was not in dispute nor that this equipment was an input and output device. Printers and scanners of different kinds fall within the definition of "peripheral". The item in question was not a stand-alone photocopier machine or fax machine, as it worked in conjunction with the computer. The distinction is evident from the reading of entry 18(i) of Part B of the First Schedule and entry 14(iv) of Part D of the First Schedule to the Act. Peripherals in relation to computer personal, mini, mainframes and lap-tops of analog and digital varieties would fall under entry 18(i) of Part B of the First Schedule, whereas electronic instruments including cash registers, tabulating and calculating machines, electronic duplicating machines, reprographic copiers including duplicators, Xerox and photo copying machines and any other electronic apparatus for obtaining duplicate copies fall under entry 14(iv) of Part D of the First Schedule. Considering the functions of the image runner the goods in question were "peripherals" and serve as an input and output device and would partake the character of the "peripheral", which includes printer and scanner. There was no question of classifying the goods under residual entry or under entry 14(iv) of Part D or entry 40 of Part D of the First Schedule to the Act. The assessing officer, Appellate Assistant Commissioner and the Tribunal had totally misconstrued the classification of goods by splitting the functions of the multi-function machine. What was relevant is the nature of the equipment and its predominant use. The goods in question partake the character of "peripherals" of a computer and therefore, were classifiable under entry 18(i) of Part B of the First Schedule to the Act. The clarification of the Authority for Clarification and Advance Ruling in terms of section 48A(3) of the Tamil Nadu Value Added Tax Act, 2006 was also binding on the Department. If entry 18(i) of Part B of the First Schedule to the 1959 Act provides a specific entry, there is no need to fall back on the residual entry."
23. In an earlier judgment in the case of State of Tamil Nadu v. CMC Ltd. (supra), the Division Bench of the Madras High Court, dealt with the case as to whether "router" was a computer peripheral or not. Answering the question in affirmative, the Court held it to be computer peripheral, in the following terms :
"A computer "peripheral" is an ancillary device of a computer, similar to that of key board, floppy disk or hard drive, which enables the transmission of data from one computer to another or one area to another. A "router" is a device falling outside the main part, namely, computer and it is partially or completely dependent on the host and expands the capabilities of the computer and it does not form pat of the core architecture. All computer peripherals have not been defined in entry 22 of the notification dated January 1, 2007 issued for purposes of entry 68 of Part B of the First Schedule to the Act. Therefore, whatever goods fall within the definition of "peripheral" would be entitled to such a benefit. A router, from the nature of its use in conjunction with the computer defined based on relevant compute related dictionary and date, is a computer peripheral, falling under entry 22 of the notification issued for purposes of entry 68 of Part B of the First Schedule to the Tamil Nadu Value Added Tax Act, 2006."
24. These authorities can be multiplied, as various such authorities of the Tribunals were also cited before this Court, but it is not considered necessary to reproduce and discuss all such cases in detail, especially when the learned counsels for the Revenue failed to bring out any contra view on this issue from any other High Court or the Hon''ble Supreme Court of India.
25. The only judgment relied upon by the learned counsels for the Revenue in the case of RayBan Sun Optics India Ltd. v. Dy. Commissioner (Appeals), Commercial Tax Department (supra), needs a brief mention, though the commodity in that case before the learned Single Judge of this Court was absolutely different and it is also brought to the notice of the Court that Special Leave to Appeal (Civil) No. 3112-3124/2014 - M/s. RayBan Sun Optics India Ltd. v. Dy. Commissioner (Appeals), Commercial Tax Department, against the said judgment of the learned Single Judge of this Court, is pending before the Hon''ble Supreme Court and the leave in that case was granted by the Hon''ble Supreme Court on 28.02.2014.
26. The learned Single Judge of this Court in the case of RayBan Sun Optics India Ltd. v. Dy. Commissioner (Appeals), Commercial Tax Department (supra), held that on applying the common parlance test, the history of the entry and even the fundamental/basic meaning of the terms ''spectacles'' as indicated in the various dictionaries, entry ''spectacles'' in the Schedule only relates to and covers corrective spectacles and the same could not include sunglasses (Rayban), as was sought to be argued by the Assessee and the concurrent findings of the Assessing Authority as well as the learned Tax Board did not require any interference by the High Court. The said judgment, with great respect, is of little help to the Revenue in the present cases, as not only the commodity in the present cases is absolutely different and different entries requiring contextual interpretation, have come up for interpretation before this Court, in the present cases, and therefore, the said judgment is found to be distinguishable and of little assistance to the Revenue.
27. The other judgments/orders of the learned Tax Board in the case of RICOH India Ltd. (supra) against which the revision petition filed before this Court is said to have been dismissed for want of prosecution, the detailed judgment of the learned Tax Board was also not placed before this Court for consideration and only the order of the Additional Commissioner was so placed, which also is of no assistance to the Revenue, in the present cases.
On the contrary, in the case of same Company RICOH India Ltd. v. Commissioner, 2012 (52) VST 49 (Delhi), the Delhi High Court held as under [vide quote from the judgment of Madras High Court in the case of Canon India (P) Ltd. v. State of Tamil Nadu (supra)]
".... 16. The question, therefore, which is raised and has to be answered, is whether the multi-functional machines or printers are computer peripherals or not ? The term ''peripheral has not been defined in the VAT Act and, therefore, has to be given its natural and common sense meaning. A computer mainly consists of Central Processing Unit, which cannot operate and function without peripherals like monitor, keyboard, printer etc. Some of the peripherals may be mounted or housed in the computer cabinet itself like hard disc, CD ROM, mic, etc. Sometime peripherals can be separate and have to be attached to the central processing unit. The term ''peripheral'' has been defined in Oxford Dictionary to mean as under:-
''(of a device) able to be attached to and used with computer, though not an integral part of it.''
17. A multi-functional machine can be a computer peripheral, if its principal or sole purpose is to be attached and function as a computer ancillary. A multi-functional machine will be and qualify as a computer peripheral when its main/predominant purpose is to scan documents, load data or work as an input device of the computer or work as an output device to take printouts, etc., from the computer. At the same time, there can be photocopiers, whose main purpose is to copy or act as a duplicating machine to make copies of documents. Incidentally, they may also be used as a printer. This would require elucidation and examination of factual matrix in each case and the machine in question on case to case basis."
Therefore, upon a detailed analysis and with reference to various technical literature and material, the cases laws in favour of the Assessees, this Court is satisfied that the commodity in question, namely, Multi Functional Device could not be taxed by the Assessing Authority under the Residuary Entry for the period from 01.04.2006 to 09.03.2010, and the said commodity would fall within the ambit and scope of entry relating to computer printers and computer peripherals, taxable @ 4% in Schedule IV of the VAT Act.
28. The levy of tax in the Residuary Entry @ 12.5%/14% therefore, cannot be held, and to that extent, the order impugned of the learned Tax Board and the authorities below deserve to be quashed and set aside. They are accordingly set aside.
29. As far as the question of imposition of interest and penalty is concerned, this Court is also satisfied that the levy of interest would fall, since the levy of additional tax itself is quashed by this Court, and the question of imposition of penalty, therefore, would not simply arise.
30. Accordingly, the revision petitions filed by the Assessees are allowed and the revision petitions of the Revenue are dismissed. No costs. Copy of this order may be sent to the concerned parties as well as the learned Rajasthan Tax Board, Ajmer forthwith.
