ASIAN PAINTS INDIA LTD Vs. COMMISSIONER SALES TAX

JUDGEMENT

(1.) BY filing this petition under Article 226/227 of Constitution of India, the petitioner has challenged the six orders all dated July 27, 1993 filed (annexure A collectively) passed by Commissioner, Sales Tax, Indore, in exercise of powers conferred under Section 42-B of Madhya Pradesh General Sales Tax Act (since repealed) (for short called "the Act" ). Facts in brief are these.

(2.) PETITIONER is a limited company registered under the Companies Act, 1956. It is engaged in the business of manufacture and sale of paints and what is called "primers". Petitioner is a dealer under the Act. The dispute in this case relates to six types of primers manufactured by the Petitioner--namely, (1) Tractor redoxide metal primer, (2) Wood rite primer, (3) Deco prime cement primers (oil base), (4) Asian redoxide metal primer, (5) Apcolite primer surfacer and (6) Decoprime cement primer (water base ).

(3.) A question arose before the taxing authorities under the State Sales Tax Act, as to under which entry the various kinds of primers, manufactured and sold by the petitioner is liable to be taxed. According to petitioner in the absence of any specific entry under Schedule II, the commodity in question, i. e. , primer will be taxable under Part VI, i. e. , under the residuary entry, whereas the contention of the department (taxing authorities) was that the commodity in question is liable to be taxed under entry No. 20 of Part II of Schedule II relating to paints. It is to decide this issue, the matter was referred to Commissioner under Section 42-B of the Act. By impugned order, the learned Commissioner held that primer manufactured by the petitioner is in fact a paint and is thus liable to be taxed under entry No. 20 of Part II of Schedule II. In other words, the Commissioner did not accept the contention of the petitioner and held the issue against them. It is against this order of Commissioner, the petitioner has filed this writ.