Karnataka High Court
M/S. Advanced Fiber Systems Pvt. Ltd vs Commissioner Of Commercial Taxes on 3 January, 2022
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION No.45189/2015 (T-RES)
BETWEEN:
M/s. Advanced Fiber Systems Pvt. Ltd.,
No.137/2, Service Road,
Outer Ring Road,
Banaswadi, Kalyan Nagar Post,
Bangalore - 560 043.
Represented by its
Business Development Director
Sri Vijay Kumar H.P.,
Aged about 51 years,
S/o Sri Puttaiah Muniappa. ... Petitioner
(By Sri M. Thirumalesh, Advocate)
AND:
Commissioner of Commercial Taxes,
Karnataka
Vanijya Therige Karyalaya
Gandhinagar
Bangalore - 560 009. ... Respondent
(By Sri Hema Kumar, AGA)
This Writ Petition is filed under Articles 226 & 227 of
Constitution of India, praying to quash the clarification issued by
Commissioner of Commercial Taxes, Karnataka in the case of the
petitioner dated 05.07.2014 to extent of holding that Fibre Optic
Jumper or Fibre Cable Assemblies or Fibre Optic Patch cords are
liable to tax at 14.5% under Section 4(1)(b)(iii) of the KVAT VAT
- Annexure-H and etc.
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This Writ Petition coming on for hearing this day, the
Court made the following:
ORDER
The petitioner has sought for quashing of the clarification issued by the Commissioner of Commercial Taxes, Karnataka in the case of the petitioner in No.CLR.CR.255/12-13 dated 05.07.2014 to the extent of holding that Fibre Optic Jumper or Fibre Cable Assemblies or Fibre Optic Patch Cords are liable to tax at 14.5% under Section 4 (1) (b) (iii) of the KVAT Act vide Annexure-'H'.
2. The clarification made before the Commissioner of Commercial Taxes as regards the petitioner is as follows:
"2) Product - Fibre Optic Jumper or Fibre Cable Assemblies or Fibre Optic Patch cords (CET heading 8544.70.90) It is stated by the applicant that Fibre Optic Jumpers or Fibre Optic Cables fitted with connectors used for transmitting telecom signals, voice, video and data. These fibre cables are used for inter-connecting various telecom equipments and apparatus in the telecom network.3
i) VAT Classification:
As per notification No.FD 116 CSL 2006 (9) dated 31.03.2006 the commodity description is as under:
Sl. Heading & Description No. Sub-heading 19 8544 Optical Fibre Cables, Networking Cables such as Flat Cables, CAT-3 Cables, CAT-6 Cables, unshielded twisted pair (UTP) cables
(ii) CET Classification:
Sl. Heading & Description No. Sub-heading 8544 Insulated (included enameled or anodized) wire, cable (including coaxial cable) and other insulated electrical conductors, whether or not fitted with connectors; Optical Fibre Cables, made up of individually sheathed fibre, whether or not assembled with electric conductors or fitted with connectors.
8544.70 Optical Fibre Cables
8544.70.90 Others
The commodity description in the KVAT notification dated 31.3.2006 is confined to cables only and does not include 'cables fitted with connectors' which is called by the applicant as "Fibre Optic Jumper/Fibre Cable Assemblies/ Fibre Optic Patch Cords". Therefore, these commodities are 4 liable to tax at 14.5% under Section 4 (1) (b) (iii) of the KVAT Act, 2003 with effect from 01.08.2012 as unscheduled goods".
3. The petitioner on an earlier occasion had approached this court in W.P.No.29861/2013 seeking for identical relief as regards the product of the petitioner. This court by order dated 22.07.2013 had disposed off the petition remitting the matter for fresh consideration and to pass an order by assigning reasons and findings after extending an opportunity of hearing to the petitioner by way of representation, if any.
4. Pursuant to such order, the proceedings were resumed before the Commissioner of Commercial Taxes, Karnataka and in the proceedings it would be of relevance to note that the Commissioner takes note of the applicant's (present petitioner) relief to withdraw the application referring to the order of this court, but however proceeded with the matter.
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5. It must be noted that when the applicant has sought for withdrawal of the clarification, question of proceeding to make a clarification did not arise. Accordingly, the order dated 05.07.2014 insofar as the products which are subject matter of the writ petition are quashed.
6. It would be open for the Appellate Authority to take a considered decision without reference to the clarification. However, in order to avoid multiplicity of litigations, it would not be out of place to point out that when the authority is considering the Notification under the KVAT Act vis-à-vis Entry under the Central Excise Tariff Act, it must keep in mind the explanation appended to the notification under the KVAT Act viz., Explanation 1 to 4.
7. Accordingly, the writ petition is disposed off in light of the discussion as made above. The clarification at Annexure-'H' is set aside insofar as the products which are 6 subject matter of the present writ petition. All contentions of the parties are kept open.
Sd/-
JUDGE Np/-