Gujarat High Court
Samsung India Electronics Pvt Ltd vs State Of Gujarat on 28 March, 2019
Author: Harsha Devani
Bench: Harsha Devani, Bhargav D. Karia
C/SCA/6109/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6109 of 2019
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SAMSUNG INDIA ELECTRONICS PVT LTD
Versus
STATE OF GUJARAT
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Appearance:
MR SN SOPARKAR, SENIOR ADVOCATE WITH MR UCHIT N
SHETH(7336) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 28/03/2019
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. Mr. S.N. Soparkar, Senior Advocate, learned counsel with Mr. Uchit Sheth, learned advocate for the petitioner, has invited the attention of the Court to Entry No.45 of ScheduleII to the Gujarat Value Added Tax Act, 2003, which bears the heading "Goods, The Sales or Purchase of which is subject to Tax and the Rate of Tax" to point out that the same provides for rate of tax for Information Technology (IT) products, as may be specified by the State Government by Notification issued in the Official Gazette, at Four paise in the rupee. Reference was made to Page 1 of 4 C/SCA/6109/2019 ORDER the Notification dated 01.08.2009 issued by the Government of Gujarat, in exercise of powers conferred by Entry No.45 of ScheduleII of the Gujarat Value Added Tax Act, 2003, wherein, it has been stated that "The Headings, Subheadings, or as the case may be, Tariff Items specifications of the IT product / goods mentioned in the table are as they are specified in the Central Excise Tariff Act, 1985". It was pointed out that in subheading No.8471 30, the description of the IT product has been given as "Potable digital automatic data processing machines, weighing not more than 10 kg. consisting of at least a central processing unit, a keyboard and a display, including personal computer". Reference was made to Chapter 84 of the Central Excise Tariff Act, 1985 and more particularly, to subheading No.8471 30, which is identically worded to the abovereferred entry. It was submitted that thus, the description and the entry have been verbally lifted from the Central Excise Tariff Act, 1985. Reference was made to a Central Board of Excise and Customs (hereinafter referred to as "the CBEC") Circular No.20/13Customs dated 14.05.2013 wherein, the CBEC has given detailed reasons and has held that "Tablet Computers" are more appropriately classifiable in heading No.8471, subheading 8471
30. It was submitted that the classification made Page 2 of 4 C/SCA/6109/2019 ORDER by the CBEC for machines commercially referred to as "Tablet Computers" would be binding upon the Assessing Officer even under the Gujarat Value Added Tax Act, 2003, since the Government of Gujarat has adopted the classification as specified in the Central Excise Tariff Act, 1985.
2. The attention of the Court was invited to the written submissions submitted before the assessing authority wherein, the contents of the abovereferred CBEC Circular and other authorities have been reproduced and relied upon.
3. It was pointed out that in the entire assessment order, the Assessing Officer has not dealt with the submissions advanced on behalf of the petitioner nor has he given any reasons as to why he does not agree with the classification adopted by the CBEC.
4. Insofar as the maintainability of the petition against the order passed by the assessing authority is concerned, learned counsel placed reliance upon the decision of this Court in the case of West Coast Waterbase Private Limited and another v. State of Gujarat and another, [2016] 95 VST 370 (Guj) as well as an unreported decision of this Court in the case of Godrej Consumer Product Ltd. v. State of Gujarat Page 3 of 4 C/SCA/6109/2019 ORDER rendered on 12.10.2018 in Special Civil Application No.12172 of 2018.
5. Having regard to the submissions advanced by the learned counsel for the petitioner, issue Notice, returnable on 11.04.2019.
By way of adinterim relief, the respondents are restrained from taking any coercive action against the petitioner pursuant to the assessment order dated 31.12.2018 read with order dated 23.02.2019.
Direct service is permitted.
(HARSHA DEVANI, J) (BHARGAV D. KARIA, J) PRAVIN KARUNAN Page 4 of 4