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(b) Whether under the facts and circumstances of the present case, the Rajasthan Tax Board, Ajmer was justified in ignoring/overlooking the fact that Memory Cards are IT products covered under Entry No.3 of Part A of Entry 65 of Schedule IV of the Rajasthan Value Added Tax Act, 2003 which provides for levy of VAT at the rate of 5 per cent on 'Computer system and peripherals, computer printers excluding multifunctional devices & electronic diaries'?"

4.3. The third submission of learned counsel for the petitioner-assessee is that the Entry No. 10 of Part A of Schedule IV to the RVAT Act is inclusive and not exhaustive. The 'inclusive clause', specifies that various products such as Compact Disc (for short "CD") and Digital Versatile Disc (for short "DVD") shall be included in the said entry. It is submitted that the inclusive clause cannot be interpreted to restrict the scope of entry to only CD or DVD as the purpose of the inclusive clause is to include all such products which are capable of 'sound recording or similar recording of other phenomena', within the scope of the said entry. 4.4. The fourth submission of learned counsel for the petitioner-assessee is that the Entry No. 10 of Part A of Schedule IV to the RVAT Act cannot be restricted only to those 'media' which are only capable of recording sound as the entry itself contains 'similar recording of other phenomena'. It is further submitted that even the specifically included items, i.e. CD and [2023:RJ-JP:24001] (11 of 23) [STR-17/2022] DVD, are capable of recording not just sound, but all other phenomena as well and therefore there exists no reasonable nexus to preclude memory cards from the specific entry. 4.5. The fifth submission of learned counsel for the petitioner-assessee is that the impugned orders of the authorities suffer from total non-application of mind. It is submitted that the authorities below merely relied on the determination order dated 15.09.2015 passed by the Commissioner, Commercial Taxes Rajasthan under Section 36 of RVAT Act in application filed by M/s. Sanwariya Taxpro Pvt. Ltd. Jaipur and M/s Balaji Solutions Pvt. Ltd. Jaipur wherein the Commissioner opined that since memory card can be used for purposes other than those mentioned in the entry and since the memory card can also be used in different devices, the same has to taxed as per the residual rate. It is contended that the determination order of the Commissioner is de hors the settled position of law and bereft of valid reasoning. It is contended that under taxing statues, the levy of tax on a particular commodity is not based on its possible uses, rather the tax is to be levied on basic characteristic of an item. If goods are capable of multiple use, then primary use will have to be seen. Reliance in this regard is placed on Apex Court judgments of Annapurna Carbon Industries Co. vs. State of Andhra Pradesh reported in (1976) 2 SCC 273, Union Carbide India Ltd. vs. State of A.P. reported in 1995 Supp (2) SCC 267, Krishi Utpadan Mandi Samiti and Ors. vs. Ved Ram reported in (2012) 4 SCC 496 and judgments of Bombay High Court in Commissioner of Sales Tax, Maharashtra State v. Shri Iron [2023:RJ-JP:24001] (12 of 23) [STR-17/2022] and Metal Works reported in 1995 SCC OnLine Bom 559 and Kirloskar Pneumatic Co. Ltd. vs. State of Maharashtra reported in 1984 SCC OnLine Bom 454. It is further contended that conclusion reached by the Commissioner is not in consonance with the reasoning adopted by the Commissioner himself as the Commissioner at one hand opines that the memory card enhances functionality of the computed and on the other hand concluded that it cannot be classified as an I.T Product. Thus, the product in question, i.e. memory card can also be classified under Entry 3 of Part A of Schedule IV to the RVAT Act which read as "Computer system and peripherals, computer printers excluding multifunctional devices, and electronic diaries". It is submitted that Part A of Schedule IV, which germinates from Entry No. 65 of Schedule IV, lays out a comprehensive list of I.T. products, for which a lower rate of tax is prescribed. It is submitted that different I.T. products may get classified under one or more items specified in Part A as entries in Part A are not water-tight or mutually exclusive. This is more so when the product is capable of being used in a fungible manner like in the case of memory cards. Reliance is placed on Gauhati High Court judgment of Sterlite Optical Technologies Ltd. Vs. Oil India Limited & Ors. reported in [(2008) 14 VST 9 (Gauhati)], Madras High Court judgments of State of Tamil Nadu vs. CMC Limited reported in [(2014) 75 VST 413 (Mad.)], Canon India Pvt. Ltd. vs. State of Tamil Nadu reported in [(2015) 80 VST 483 (Mad.)], and judgment of this Court in Compuage Infocom Limited and Ors. vs. The Assistant Commissioner, Rajasthan, Anti-Evasion-I [2023:RJ-JP:24001] (13 of 23) [STR-17/2022] and Ors. (S.B. STR No. 182/2017; decided on 30.05.2023; Neutral Citation: 2023/RJJP/12108).