VENKATESWARA Vs. COMMISSIONER OF CUSTOMS SEA PORT IMPORTS

JUDGEMENT

(1.) The assessee is the review petitioner. Challenge is to the order of the Tribunal dated October 17, 2005 passed in S.T.A. Nos. 1490 and 1693 of 2001. The assessment years are 1996-97 and 1998-99. The common questions of law raised in these revisions are:

(2.) In the instruction book supplied to the customers by M/s. TAPE, it has explained the use of "grease gun" and the requirement of the application of grease to the various parts of the engine of the tractor at periodical intervals for longer life of the bearings fitted to the various tractor aggregates. In the said instruction book M/s. TAFE, is stated to have identified the various greasing points where the customer is required to apply grease with the aid of the "grease gun".

(3.) When the assessing officer issued notice to the assessee in respect of the sale of "grease gun" up to July 16, 1996 and from July 17, 1996 for the assessment year 1996-97, the petitioner, in its objections, claimed that the sale of "grease gun" to M/s. TAFE, would attract the levy of four percent tax only as the said item falls under tools/accessories as specified in item No. 79(i) of the First Schedule to the Tamil Nadu General Sales Tax Act, hereinafter referred to as the TNGST Act. The assessing officer, by stating that the dealer themselves charged tax at eight percent on the sale of "grease gun" unto July 16, 1996 and as according to him the "grease guns" sold by them were not exclusive spare parts for tractors and can be used for other tractors also, it will fall under the residuary clause and consequential rate of tax to be applied was eight percent and 11 percent, respectively. The Appellate Assistant Commissioner, however, noted that the "grease guns" were sold by the petitioner only to M/s. TAFE, which were manufactured based on the specifications and drawings given by them, and not to any other dealer. The Appellate Assistant Commissioner has also noted that the "grease gun" cannot be used by any other tractor dealers and, therefore, the assessing officer's order cannot be sustained. The Tribunal, however, took the view that since "grease gun" is not normally fitted with the tractor, it cannot be taken as an accessory or a part of the tractor in order to apply Sl. No. 79(i) of Part B of the First Schedule.