JUDGMENT M. Katiu, A.C.J.
1. This writ petition has been filed for a writ of mandamus restraining the respondent No. 3, Deputy Commissioner (Assessment), Trade Tax, NOIDA from levying sales tax on electronic video projectors and electronic data projectors under entry "cinematographic equipments including cameras, projectors and sound recording and reproducing equipments, lenses, films and films strips...". The petitioner has also prayed for a mandamus restraining the respondent No. 3 from imposing, realizing or recovering trade tax on the electronic goods sold by the petitioner in excess of 8%. The petitioner has also prayed for a writ of certiorari to quash the impugned order dated 28.2.2003 Annexure 6 to the writ petition insofar as it relates to imposition of trade tax at 15% on electronic video projectors and electronic data projectors.
2. We have heard the learned counsel for the parties. We have also perused the counter and rejoinder affidavits.
3. The petitioner is a private limited company having its registered office in New Delhi and factory at NOIDA. The petitioner is carrying on the business of manufacture and sale of various electronic goods including electronic video projectors and its parts. The present petition only relates to the electronic video projectors and parts manufactured by the petitioner.
4. It is alleged in paragraph 5 of the writ petition that the electronic video projectors manufactured and sold by the petitioner are entirely different from the projectors which are used in cinema hall. Hence it is alleged that they should be taxed as electronic goods and not under the entry "projector" which is only meant for projectors run by electricity.
5. In paragraph 10 of the writ petition it is alleged that the electronie video projectors which are manufactured and sold by the petitioner are controlled and operated by microprocessor chips and microprocessors. In paragraph 15 of the writ petition it is alleged that the electronic video projectors manufactured and sold by the petitioner are electronic goods which are completely automatic and operated by integrated circuits, which consists of micro processor chips alongwith electronic beams. The details are given in paragraphs 16 and 22 of the writ petition. In paragraph 22 it is further alleged that the operation of video projectors manufactured and sold by the petitioner are fully controlled by the electronic control panel. In paragraph 23 of the writ petition it is alleged that microchips and microprocessors that controls direct electric current in a programmed manner are treated as electronic equipment.
6. In paragraph 18 of the writ petition it is stated that electronic projector classification has been done by Data Bank and Information Division of the Department of Electronics, New Delhi in which video projectors have been specifically classified as "consumer electronic items" at serial No. 1244. A photocopy of the electronic projector classification done by the Department of Electronics, New Delhi is Annexure 7 to the writ petition. It is alleged that this clearly establishes that the video projectors which are being manufactured by the petitioner are electronic goods as understood in common parlance and in the business community.
7. In paragraph 14 of the writ petition it is alleged that the petitioner is duly registered with the Electronic and Computer Software Export Promotion Council, Ministry of Commerce, Government of India for manufacture of electronic video projectors, electronic T,V. receivers and their parts. Photocopy of the registration certificate is Annexure 5 to the writ petition. Hence it is alleged that the goods manufactured and sold by the petitioner are electronic goods which are completely automatic and operated by integrated circuits, which consists of microprocessor chips alongwith electronic beams.
8. A counter affidavit has been filed by the respondents and we have perused the same. In paragraph 3 (ii) and (iii) of the same it is stated that the general entry ''all other electronic goods not specified any where else" cannot override the specific notification No. 2375 dated 23.11.1998 and notification No. 100 dated 15.1.2000 with regard to liability to trade tax on projectors. Hence it is submitted that the petitioner's submission is devoid of any substance. It is alleged that the projector manufactured and sold by the petitioner is cinematographic material. It is alleged that the question involved in this case is a disputed question of fact which cannot be adjudicated in writ jurisdiction, particularly since there are departmental remedies available to the petitioner under the U.P. Trade Tax Act. It is alleged that an assessment order has been passed against the petitioner and the petitioner has a clear right of appeal under Section 9 of the U.P. Trade Tax Act. It is further alleged that the projector in question is not an electronic good but cinematographic equipment.
9. It is alleged in paragraph 15 of the counter affidavit that a finding of fact has been recorded in the assessment order against which the petitioner has a statutory remedy of appeal under Section 9 and hence this petition should not be entertained.
10. As regards the contention of the respondent that the petitioner has a clear right of appeal, it is well settled that where the controversy is likely to be of a recurring nature and it does not involve disputed questions of fact it should be decided by the High Court instead of relegating the petitioner to his alternative remedy of appeal etc. vide M/s Filterco and Anr. v. Commissioner Trade Tax, , Oudh Sugar Mills Ltd. v. State of U.P. and Ors., 1995 UPTC 723 (LB), Hindustan Aluminium Corporation Ltd. v. State of U.P., 1977 UPTC 81, Union of India and Anr. v. State of Haryana and Anr., , State of U.P. and Ors. V. Indian Hume Pipe Co. Ltd., , M/s Cannon India Private Limited v. State of U.P. and Ors., 2003 UPTC 10, etc. In our opinion the controversy in the present case is likelyto be of a recurring nature and it does not involve disputed questions of fact. The facts alleged in paragraphs 10, 15, 16, 18, 22 and 23 of the writ petition are not really disputed by the respondents. Thus the allegation in paragraph 10 of the writ petition that the electronic video projector manufactured and sold by the petitioner are controlled and operated by microprocessor chips and microprocessors has not been specifically denied in paragraph 10 of the counter affidavit. All that has been said in paragraph 10 of the counter affidavit is " that the contents of paragraphs 8, 9 and 10 of the writ petition are incorrect, misconceived and hence denied." In our opinion such a bald denial is no denial at all according to the well settled law of pleadings. No doubt in paragraph 10 of the counter affidavit reference has also been made to paragraph 3 of the counter affidavit but in paragraph 3 of the counter affidavit there is no specific denial to the factual allegations in paragraphs 10, 15, 16, 18, 22 and 23 of the writ petition. All that has been said in paragraph 3 of the counter affidavit is that the general entry of electronic goods cannot override the specific entry of cinematographic material including camera, projectors etc. Similarly the allegation in paragraphs 15, 16, 18 and 22 of the writ petition have not been specifically denied in paragraphs 15, 16, 18 and 19 of the counter affidavit. The averments in the above paragraphs of the counter affidavit merely make a reference to paragraph 3 of the counter affidavit, which has already been dealt by us above. Thus in our opinion there is no specific denial to the factual averments in the writ petition that the electronic video projectors manufactured and sold by the petitioner are controlled and operated by microprocessor chips and microprocessor and they have been classified as electronic goods by the Department of Electronics, Government of India. They are electronic goods which are completely automatic and are operated by integrated circuits which consist of microprocessor chips alongwith electronic beams as stated in paragraphs 15 and 16 of the writ petition. The operation of said video projectors are fully controlled by electronic control panels and hence in our opinion they have to be treated as electronic goods in view of the decision of the Supreme Court in M/s B.P.L. Ltd. v. State of Andhra Pradesh, and the decision of this Court in M/s Cannon India Private Limited v. State of U.P. and Ors., 2003 UPTC 10 against which S.L.P. No. 9547 of 2003 (Civil) was dismissed by the Supreme Court on 8.7.2003.
11. It may be noted that in the decision of the Supreme Court in B.P.L. Limited v. State of Andhra Pradesh (Supra) a similar argument to the argument which has been advanced by the learned Standing Counsel in this case had been advanced before the Supreme Court. It was submitted by the respondent in that case that washing machine is specifically mentioned at item No. 38 (iv) of the Schedule to the Act, and hence the notification dated 20.7.1988 cannot apply because in the case of washing machine the rate of tax specified under item No. 38 (iv) is 10%. Hence it was contended by the respondent in that case that washing machine should be taxed at the rate of 10% and not at the lower rate under the general entry of "Electronic goods". This argument was specifically repelled by the Supreme Court. In the aforesaid decision in paragraph 15 it was observed:
"It was submitted by the learned Senior Counsel for the respondent that washing machine is specifically mentioned at Item No. 38 (iv) of the Schedule to the said Act and therefore it was contended that the notification of 20th July 1988 cannot apply because in the case of washing machine the rate of duty specified under entry 38(iv) is 10 per cent. We are unable to agree with this contention for the simple reason that entry 38 (iv) relates to electrical items including electrical washing machine whereas electronic items or products are referred to in entry 38 (v). An electronic washing machine would come under 38(v) and the notification dated 20th July, 1988 would apply to all electronic goods including automatic washing machines of the appellants."
12. The above decision was followed by a Division Bench of this Court in M/s Canon India Private Limited vs State of U.P. (Supra). In that case the question was whether the photocopiers manufactured and sold by the petitioner were taxable as electronic goods or as duplicating machines .The said Photocopiers were fully automated and controlled by or working with the help of microchips and microprocessors. On these facts it was held by this Court that the photocopier machine was electronic good and not a duplicating machine?. Against this judgment an S.L.P had been filed which was dismissed by the Supreme Court, as stated above.
13. In view of the above we are of the opinion that the ratio of the decision of the Supreme Court in B.P.L. Limited v. State of Andhra Pradesh (Supra) and of this Court in Cannon India Private Limited v. State of U.P. (Supra) are squarely applicable to the tacts of the present case. The petition is therefore allowed. A mandamus as prayed for by the petitioner is issued to the respondent and they are directed to levy tax on the electronic video projectors and electronic data projector manufactured and solot by the petitioner at the rate applicable to the electronic goods under Entry 75 (3) of the Notification dated 29.1.2000 under the U.P. Trade Tax Act. The impugned order dated 28.2.2003 is quashed insofar it relates to the imposition of tax at the higher rate on the electronic video projectors and electronic data projectors manufactured and sold by the petitioner.