JUDGMENT Rajes Kumar, J.
1. These two revisions under Section 11 of U. P. Trade Tax Act (hereinafter referred to as 'Act') are directed against the order of Tribunal dated 04.02.2006 relating to assessment years 1999-2000 and 2000-01 both under the U. P. Trade Tax Act.
2. The questions involved in the present revisions relates to the taxability of Compressor and rate of tax applicable on it.
3. Applicant had purchased Compressor from M/S Kirloskar Pneumatic Company Limited, Purandhar, District Pune. Before the Assessing Authority, applicant claimed that the Compressor purchased by it is a machinery, thus, liable to tax @ 7.5% under the Notification No. TIF-2-2375/X1-9 (251)/97-U. P. Act-15-48-Order-98, dated 23.11.1998 and @ 8% under the Notification No. KA-; NI-2-100/XI, dated 15.1.2000. The Assessing Authority levied the tax on such Compressor under the Notification No. TIF-2-2375/XI-9 (251)/97-U. P. Act-15-148-Order-98, dated 23.11.1998 treating it as a Refrigeration Compressor. The Assessing Authority, observed that the applicant itself declared in Declaration Form No. 644755 and 2043949, such Compressor as a "Kirloskar Pneumatic Refrigeration" and the "Refrigeration Compressor" respectively. It has been further observed that such Compressor have been sold by the applicant to the Cold Storage, Dairy and Units dealing in Refrigeration. First Appeals filed by the applicant had been dismissed. The Tribunal has dismissed the Second Appeals.
4. Heard Sri M. Manglik, learned Counsel for the applicant and Sri U.K. Pandey, learned Standing Counsel.
5. Learned Counsel for the applicant submitted that the Compressor, in which, the applicant dealt with was a big Compressor used in the Cold Storage as a machine and therefore, it was liable to tax as a machinery and not as a Component or part of the Refrigeration or Air-Conditioning Plant. He submitted that the Government vide letter No. K. Ni.-2-384/XI-2002-9/205/92-TC, dated 07.02.2002 opined that since the Compressor is a part of a Refrigerator and Air-Conditioner, hence, it is liable to tax as a part of Refrigerator and Air Conditioner @ 8% with effect from 1.12.2001. Learned Standing Counsel submitted that as per the applicant own case, which is referred in the order, Compressor was Refrigeration Compressor and was sold to the Cold Storage and parties dealing in Refrigeration. He submitted that Compressor by itself is not a machinery, but it is used as part of machinery which is in the form of Refrigerator. Air-Conditioner or Air conditioner Plant. He submitted that even if it is treated as a machinery or part of machinery, it is deemed to have excluded from the entry of machinery, being notified under the Notification No. TIF-2-2375/XI-9 (251)/97-U.P. Act-15-48-Order-98. dated 23.11.1998. He submitted that the Circular which is referred by the learned Counsel for the applicant is applicable to the period after 1.12.2001 when the entry of Refrigeration and Air-Conditioning parts have been amended. He submitted that by referring the aforesaid Circular, dealer admits its Compressor as the part of the Refrigerator and Air-Conditioner.
6. Having heard learned Counsel for the parties and have perused the order of the authorities below. It is useful to refer all the relevant Notifications:
7. The Notification No. TIF-2-2375/XI-9 (251)/97-U.P. Act-15-48-Order-98, dated 23.11.1998 reads as follows:
In exercise of the powers under Clause (d) of Sub-section (1) of Section 3-A of the Uttar Pradesh Trade Tax Act, 1948 (U. P. Act No. 15 of 1948) read with Section 21 of the Uttar Pradesh General Clauses Act, 1904 ( U. P. Act No. 1 of 1904) and in supersession of all previous notifications issued in this behalf, the Governor is pleased to declare that with effect from December I, 1998, turnover in respect of the goods mentioned in column 2 of the Schedule below shall be liable to tax at the point of sale specified in column 3 of said Schedule at the rate specified against each in column 4 thereof-
Schedule "M" stands for sale by the manufacturer in Uttar Pradesh.
"I" stands for sale by the importer in Uttar Pradesh.
----------------------------------------------------------------------
8. In my opinion, submission of learned Counsel for the applicant has no force. In the declaration Form applicant itself has declared the Compressor as 'Refrigeration Compressor" and admitted to have sold to Cold Storage, Dairies and the person dealing in Refrigeration, therefore, Compressor sold by the applicant is undoubtedly Refrigeration Compressor. Compressor by itself is not a machinery. There is no application of force in the Compressor unless it is being operated by some Motors and other machineries. It is a pan of the machinery. It is being used as a part of the Refrigeration and Air-Conditioning Plant, thus, it is covered under the. Notification No. TIF-2-2375/X1-9 (251)/97-U.P. Act-15-48-Order-98, dated 23.11.1998 Even assuming that it a machinery or a machinery part, it is deemed to have excluded from the Notification relating to the machinery or machinery parts being specifically classified under the aforesaid Notifications.
9. So far as. Circular is concerned, it is not applicable to the year under consideration Circular relates to the period after 1.12.2001. With effect from 1.12.2001, Notification relating to the Component parts and parts of Refrigerator and Air-Conditioner has been changed.
10. In the case of Kirloskar Pneumatic Co. Ltd. v. State of Maharashtra reported in 64 STC page 420, the Bombay High Court held the primary use of the article in question in the absence of any evidence of trade or common parlance, has to be looked into. It is held that kind of Compressor dealt by the dealer was covered as part of the Refrigeration and not as a part of the Air-Condition Plant. In this case, dealer has admitted that the Compressor sold by it was primarily used in a Refrigeration Plant. The aforesaid decision is only helpful to the extent that the Compressor sold by the Kirloskar Company is used in the Refrigeration, thus, it is part of the Refrigeration Plant.
11. For the reasons stated above. I do not find any error in the order of the Tribunal.
12. In the result, both the revisions fail, and are, accordingly, dismissed.