Rajes Kumar, J.
1. Present two revisions under Section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as 'the Act') are directed against the order of the Tribunal dated June 21, 2006 relating to the assessment year 1999-2000 both under the U.P. Trade Tax Act, 1948 and the Central Sales Tax Act, 1956.
2. The applicant was carrying on the business of manufacture and sales of optic-fibre cable accessories, such as optical fibre cable joint closure, fibre distribution frame, fibre termination box, aerial fibre-optic cable suspension accessories, etc., used in the optical fibre digital and other networking system as per design and technical specifications of the department of Telecommunication, Ministry of Communication, Government of India.
3 The claim of the applicant was that the aforesaid items were liable to tax at 2.5 per cent under entry No. 75 of the Notification No. T.I.F. 2-2375/XI-9(251)/97-U.P. Act-15-48-Order-98, dated November 23, 1998 and at four per cent with effect from January 17, 2000 vide Notification No. KA. NI-2 298/XI-9 (231)/94-U.P. Act-15-48-Order 2000. Under the Central Sales Tax Act the applicant claimed that in view of the Notification No. TT-2-2473/XI-6(1)/86-Act-74/56-Order-95, dated October 10, 1995 issued under Section 8(5) of the Central Sales Tax Act being an electronic goods liable to tax at two per cent with or without declaration form. The assessing authority treated the aforesaid items as a telephone and parts of telephone and levied the tax at 12 per cent, the turnover covered against form IIIB was taxed at 2.5 per cent. Under the Central Sales Tax Act the turnover covered against form C was taxed at four per cent and the turnover which was not covered against form C was taxed at 12 per cent. Being aggrieved by the assessment orders, the applicant filed appeals before the Joint Commissioner (Appeals), Trade Tax, Allahabad. The Joint Commissioner (Appeals), Trade Tax, Allahabad vide order dated March 23, 2004 dismissed both the appeals. Being aggrieved by the order of the Joint Commissioner (Appeals) the applicant filed two appeals before the Tribunal. The Tribunal by the impugned order, allowed the appeals and remanded back the matter to the assessing officer. The Tribunal however held that the items dealt by the applicant were electronic components and held liable to tax under the entry 'all other electronic goods' at five per cent under the Notification No. T.I.F.-2375/XI-9(251)/97-U.P. Act-15-48-Order-98, dated November 23, 1998 and under the Notification No. KA. NI-2-298/XI-9(231)/94-U.P. Act-15-48-Order 2000 dated January 29, 2000 at eight per cent.
4. Heard Sri K. Saksena, learned Counsel for the applicant and Sri B.K. Pandey, learned Standing Counsel.
5. The learned Counsel for the applicant submitted that though the Tribunal has accepted the claim of the applicant that the items manufactured by the applicant was not telephone and telephone parts and were electronic goods but has not considered the submission of the applicant that the items were covered under Clause (i) of entry No. 75 of the notification dated November 23, 1998. He submitted that all the items were covered under the entry 'all types of passive components' and, therefore, liable to tax at 2.5 per cent. He submitted that only those electronic items which were not covered under Clause (i) would be covered under Clause (iii) under the entry 'all other electronic goods', therefore, the Tribunal ought to have examined whether the items are covered under Clause (i) or not which the Tribunal failed to do so. He submitted that in the written submission filed before the Tribunal specific submission was made in this regard in paragraph 4 of the written submission. He submitted that under the Central Sales Tax Act the Tribunal has not at all considered the Notification No. TI-2-2473/XI-6(1)/86-Act-74/56-Order-95, dated October 10, 1995 issued under Section 8(5) of the Act which was applicable to the electronic goods. If the aforesaid notifications would have been considered the Central sales of all the items would be liable to tax at two per cent with or without form C or form D. In view of the above, learned Counsel for the applicant submitted that the matter may be remanded back to the Tribunal for considering the aforesaid aspect of the matter.
6 Sri B.K. Pandey, learned Standing Counsel also agrees with the submission made by the learned Counsel for the applicant.
7 Entry No. 75 of the Notification No. T.I.F.-2-2375/XI-9 (251)/97-U.P. Act-15-48-Order-98, dated November 23, 1998 reads as follows:
In exercise of the powers under Clause (d) of Sub-section (1) of Section 3A of the Uttar Pradesh Trade Tax Act, 1948 (U.P. Act No. 15 of 1948), read with Section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No. 1 of 1904) and in supersession of all previous notifications issued in this behalf, the Governor is pleased to declare that with effect from December 1, 1998, the turnover in respect of the goods mentioned in column 2 of the Schedule below shall be liable to tax at the point of sale specified in column 3 of said Schedule at the rate specified against each in column 4 thereof.15. (i) electronic components, that is to say, all types of M or I 2.5%passive components, resisters, capacitors, diodes and other activecomponents, transistors integrated circuits, large-scaleintegration, very large-scale integration chips, black-and-whitepicture tubes, colour picture tubes, power semi-conductors, audiotapes and video tapes, printed circuit boards, connectors, relay,auto electronic components, precision, electronic components,magnetic media, micro-wave tube, television components, televisionglass shells, electronic transducers, actuators, display devices,that is, light emitting diods, liquid crystal diodes, micro motors,crystal, tapedeck mechanism, etched and framed foils, electronictuners, defelction yokes, line output transformers,electro-deposited, copper foils, printed circuit board, laminate,populated printed circuit boards, power supply devices, cabinet andplastic components.(ii) V.C.R./V.C.P., colour television, satellite receiver, M or I 7.5%videocassette, cordless phone, microwave oven and video games(iii) All other electronic goods not specified any where else in M or I 5%the Schedule or in any other notification.
8. Entry No. 75 of the Notification No. KA. NI.-2-298/XI-9 (231)/94-U.P. Act-15-48-Order 2000, Lucknow dated January 29, 2000 reads as follows:
Whereas the State Government is satisfied that it is necessary so to do in public interest;
Now therefore, in exercise of the powers under Clause (d) of subsection (1) of Section 3A read with Section 25 of the Uttar Pradesh Trade Tax Act, 1948 (U.P. Act No. 15 of 1948) and Section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No. 1 of 1904), the Governor is pleased to make with effect from January 17, 2000, the following amendment in Government Notification No. KA. NI-2-100/XI-9 (231)/94-U.P. Act-15-48-Order-2000, dated January 15, 2000 [S. No. 321], as amended from time to time:
Amendment
In the Schedule to the aforesaid notification for entries at serial numbers 3, 7 and 75, the following entries, respectively, shall, column wise be substituted, namely:______________________________________________________________________________(i) Television, video cassette recorders, video cassette player, | M or I |satellite receiver, wireless set, video cassette, video games, | |electronic toys and telephones including cordless phones and | |parts of telephones and cordless phones. | || |(ii) Computer hardware, software and parts thereof, and elec- | M or I |tronic components, that is to say, all types of passive compo- | |nents, resistors, capacitors, diodes and other active | |components, transistors, integrated circuits, large scale inte- | |gration, very large scale integration chips, black-and-white | |picture tubes, colour picture tubes, power semi-conductors, | |audio tapes and video tapes, printed circuit boards, connectors, | |relay, auto electronic components, precision electronic compo- | |nents, magnetic media, micro-wave tube, television compo- | |nents, television glass shells, electronic transducers, actuators, | |display devices, that is, light emitting diodes, liquid crystal | |diodes, micro motors, crystals, tape deck mechanism, etched | |and framed foils, electronic tuners, deflection yokes, line output | |transformers, electro-deposited copper foils, printed circuit | |board, laminate, populated printed circuit boards, power sup- | |ply devices, cabinet and plastic components. | || |(iii) Microwave oven and all other electronic goods not speci- | M or I |fied anywhere else in the Schedule or in any other notification. | |____________________________________________________________________|________|
9. Notification No. TT-2-2473/XI-6(1)/86-Act-74/56-Order-95, dated October 10, 1995 issued under Section 8(5) of the Central Sales Tax Act reads as follows:
(Published in U.P. Gazette, dated October 10, 1995) Whereas, the State Government is satisfied that it is necessary so to do in public interest:
Now, therefore, in exercise of the powers conferred by Sub-section (5) of Section 8 of the Central Sales Tax Act, 1956 (Act No. 74 of 1956) the Governor is pleased to direct that with effect from October 10, 1995, the tax payable under Sub-section (2) of the said section by any dealer having his place of business in the State of Uttar Pradesh in respect of the sales made by him from any such place of business in the course of inter-State trade or commerce of electronic goods shall be calculated at the rate of two per cent whether or not the declaration in form 'C' or certificate in form 'D' covering such sale has been furnished.
10. Though the Tribunal has accepted that the items manufactured by the applicant are electronic goods but without considering the submissions of the applicant that the items are covered under the entry 'all types of passive components' under Clause (i), the Tribunal has held that they are covered under the entry 'all other electronic goods' under Clause (iii). The Clause (iii) is a residuary entry and only those electronic goods fall under this entry which do not fall under the items mentioned in Clause (i). Therefore, the Tribunal should have first considered whether the items manufactured by the applicant are covered under the items mentioned in Clause (i) of the entry or not. Since the Tribunal has not considered this aspect of the matter, the matter is remanded back to the Tribunal to consider whether the items manufactured by the applicant are covered under the entry 'all types of passive components' which is one of the items of electronic components mentioned in Clause (i) of the entry. For the assessment year under the Central Sales Tax Act the Tribunal is directed to consider the Notification No. TT-2-2473/XI-6(1)/86-Act-74/56-Order-95, dated October 10, 1995 issued under Section 8(5) of the Central Sales Tax Act and decide the appeal afresh.
11. In the result, both the revisions are allowed. The order of the Tribunal is set aside and the matter is remanded back to the Tribunal to decide both the appeals afresh in the light of the observation made above. Since the issue involved is recurring in nature, the Tribunal is directed to decide the appeals expeditiously.