Case: M/s. Jai Vijai Metal Udyog Pvt. Ltd. Industrial Estate, Varanasi Vs. The Commissioner, Trade Tax, U.P. Lucknow

further enquiry. It is asserted that the said decision does not conclude the issue against the Dealer as pleaded on behalf of the Revenue. Learned counsel also points out that pursuant to the remand by the High Court in the case of HINDALCO, the Assessing Officer examined the entire issue afresh; by summoning the representatives of other manufacturers to understand the manufacturing process as also the commercial value, and then came to the conclusion that `properzi redraw rod is like an ingot - a form of primary metal and, therefore, falls in the category of metal and alloy, covered under Entry 24. According to the learned counsel, the assessment made in the case of HINDALCO on remand has attained finality. It is, thus, pleaded that since the item, viz. `properzi redraw rod manufactured by the Dealer and HINDALCO are similar, the Revenue cannot treat two dealers differently for the purpose of levying sales tax under the Regional Act as well as the Central Act. Learned counsel appearing on behalf of the Revenue, on the other hand, supported the decision of the High Court and submitted that `properzi redraw rods are manufactured from aluminium ingots and billets; being commercially different commodities, the same cannot be considered as primary metal and, therefore, these have been correctly taxed in the category of unclassified item. Learned counsel urged that after this Court had passed order on 2nd December, 2009, directing the Revenue to disclose its stand with regard to the assessment in the case of HINDALCO, assessments in the case of the said company in respect of assessment years 2003-04 to 2006-07 have been re-opened under Section 21(2) of the U.P. Act and, therefore, the plea of discrimination is not available to the Dealer. It is, however, conceded that in so far as assessment in the case of HINDALCO for the assessment year 1988-89 is concerned, it has attained finality and cannot be re-opened. The questions falling for consideration are: (i) whether the aluminium `properzi redraw rods can be classified as metal under Entry 24 of the aforementioned Notification dated 30th September, 1983 and (ii) when admittedly, the foundation for re-opening Dealers assessment in respect of assessment year 1988-89 was the assessment in the case of HINDALCO, in which case, after the remand by the High Court, assessment for that year has attained finality, can the Revenue be permitted to take a different view in the case of the Dealer from that taken in the case of HINDALCO in respect of the same assessment year? In so far as the first question is concerned, we are of the opinion that in the light of the decision of this Court in Hindustan Aluminium Company Ltd . (supra) wherein, while examining the question whether aluminium rolled products and extrusions could be described as `Metal under Item No.6 (as it then existed) in the Schedule attached with the U.P. Act which is materially similar to Entry 24, this Court has observed that expression `Metal has been generally employed to refer to the metal in its primary sense, i.e. the metal in the form in which it is marketable as a primary commodity, it is unnecessary for us to delve deep into the issue. The only question for our consideration is whether the said decision conclusively holds that `properzi redraw rods are not `metal in the primary form as such constituting new commercial commodity as held by the High Court. Having carefully gone through the judgment, particularly the observations in para 7 thereof, we are convinced that in so far as `properzi redraw rods are concerned, a distinction has been drawn by this Court between `properzi redraw rods and other aluminium rolled products and extrusions and precisely for this reason, the issue was kept open to be re-examined by the Sales Tax Officer after further enquiry. As noted above, learned counsel for the Revenue candidly conceded before us that in so far as assessment year 1988-89 is concerned, after fresh enquiry, the Assessing Officer treated `properzi redraw rods as primary metal, classifiable under Entry 24. Admittedly, this decision of the Assessing Officer was not questioned by the higher authorities and thus, attained finality. Moreover, bearing in mind the fact that the same issue has now been re-opened in the case of HINDALCO, in respect of assessment years 2003-04 to 2006-07, we feel that expression of any opinion on the issue, at this juncture, would be prejudicial to the interest of either of the parties, particularly when HINDALCO is not before us. Now, coming to the second issue, it is trite that in view of the inherent complexity of fiscal adjustment of diverse elements, a wider discretion is given to the Revenue for the purpose of taxation and ordinarily different interpretations of a particular tariff entry by different authorities as such cannot be assailed as violative of Article 14 of the Constitution. Nonetheless, in our opinion, two different interpretations of a particular entry by the same authority on same set of facts, cannot be immunised from the equality clause under Article 14 of the Constitution. It would be a case of operating law unequally, attracting Article 14 of the Constitution.In the present case, as stated above, the basis for re-opening the assessment of the Dealer in respect of assessment year 1988-89, was the view taken by the Assessing Officer in the case of HINDALCO that `properzi redraw rods were not primary metal in terms of Entry 24. Therefore, subsequently when on remand by the High Court as affirmed by this Court, in HINDALCOs fresh assessment in respect of the said assessment year, the said product was held to be a `metal falling under Entry 24, the entire foundation for re-opening of the assessment vanished. Having accepted the view of the Assessing Officer in the case of HINDALCO, the Sales Tax Authorities in the State cannot be permitted to take a different stand in the case of the Dealer in respect of a similar item for the same assessment year.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Now, coming to the second issue, it is trite that in view of the inherent complexity of fiscal adjustment of diverse elements, a wider discretion is given to the Revenue for the purpose of taxation and ordinarily different interpretations of a particular tariff entry by different authorities as such cannot be assailed as violative of Article 14 of the Constitution. Nonetheless, in our opinion, two different interpretations of a particular entry by the same authority on same set of facts, cannot be immunised from the equality clause under Article 14 of the Constitution. It would be a case of operating law unequally, attracting Article 14 of the Constitution.In the present case, as stated above, the basis forthe assessment of the Dealer in respect of assessment yearwas the view taken by the Assessing Officer in the case of HINDALCO that `properzi redraw rods were not primary metal in terms of Entry 24. Therefore, subsequently when on remand by the High Court as affirmed by this Court, in HINDALCOs fresh assessment in respect of the said assessment year, the said product was held to be a `metal falling under Entry 24, the entire foundation forof the assessment vanished. Having accepted the view of the Assessing Officer in the case of HINDALCO, the Sales Tax Authorities in the State cannot be permitted to take a different stand in the case of the Dealer in respect of a similar item for the same assessment year.