The single bench of Allahabad High Court has held that classification entry no.109 does not include granite stone and is not taxable. The Court upheld the view taken by the Tribunal that stones that have not been processed in any manner, would be included in Entry No.109 whereas processed stones that have gone through some kind of procedure would be excluded.
Sri Ravi Shanker Pandey, Additional Chief Standing Counsel for the revisionist and Sri Ishir Sripat, counsel for the opposite party.
The revision petition was admitted on the question of law “Whether, on the facts and circumstances of the case, the Tribunal was legally justified in holding that granite stone block and pieces sold by the dealer is taxable @ 5% ( including additional tax ) under entry no.109 of the Schedule II Part A as per notification No.KANI-2-421/XI-9(1) dated 31.03.2011, “sand, gitti, bajri, kankar, stone ballast, stone but not including glazed stone marble and marble chips” despite the fact that granite stone has not been mentioned in the said notification, being exhaustive entity?”
The revenue stated that in the classification, Entry No.109 does not include granite stone, and accordingly, the same should be treated as not classified and taxed @ 14.5%. The argument put forward by Mr. Pandey is that EntryNo.109 only includes substances that are of less value as the items included therein are “sand, gitti,bajri, kankar, stone ballast, stone”. He submitted that granite stone is an expensive item and was never meant to be included in Entry No.109.
Entry No.l09 specifically includes “stone” with the caveat that the same shall not include glazed stone, marble and marble chips.
Justice Shekhar B. Saraf viewed that “glazed stone, marble and marble chips have been specifically excluded from the definition of “stone” in Entry No.109. If the Legislature wanted to exclude granite stone, the same could have very well been done by the amendment carried out on March 31, 2011. It is my view that if one were to agree with the submission made by the revenue, one would have to exclude several items that would ordinarily be termed as “stone”, which is not permissible in law. “
It was found that the Tribunal has held that stones that have not been processed in any manner, would be included in Entry No.109 whereas processed stones that have gone through some kind of procedure would be excluded. The above finding is in consonance with the fact that glazed stone has been specifically excluded from Entry No.109.
The Court upheld the order and dismissed the revision petition.
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