JUDGMENT :

1. The present Sales Tax Revisions/References (for short “STRs”), filed under Section 84 of the Rajasthan Value Added Tax Act, 2003 (for short “RVAT Act”), were admitted on following question of law:

“Whether specific entry no.35 of Schedule-IV do not cover the ‘Argon Carbon Dioxide, Oxygen, Hydrogen, Carbon gases as “Other non metals?”

2. Since common question of law is involved in all these STRs, with the consent of the parties, they were heard together and are now being decided by way of this common order. STR No. 94/2020 is taken as lead file to peruse the facts.

3. Learned counsel for the petitioner-assessee submits that the petitioner-assessee, a limited company, was duly registered as a dealer under the RVAT Act and The Central Sales Tax Act, 1956 (for short “CST Act”) and was regularly filing quarterly as well as annual returns with the concerned assessing authority. The assessing authority was regularly assessing the liability of the petitioner-assessee by framing assessment orders under Section 9 of the CST Act read with Sections 23 and 24 of the RVAT Act, for each financial year, since the registration of the petitioner-assessee with the Commercial Taxes Department. The petitioner-assessee was engaged in the business of manufacture and sale of various types of industrial and rare gases and the petitioner-assessee effected the sales by treating their products as ‘Industrial Inputs’, covered under Entry 35 of Part B of Schedule IV to the RVAT Act, which reads as: “Entry No. 25: Hydrogen, rare gases and other non metals : 5/5.5%”. As per the learned counsel for the petitioner-assessee, the cause and controversy in the matter arose when a survey of the petitioner-company’s business premises was conducted by the respondent-revenue on 21.12.2016 and the long standing and long accepted classification of the goods in question was disturbed by the respondent-revenue by treating the filling process of two or more gases in a single cylinder as mixture of gases and accordingly treating the sale of these goods prior to 14.07.2014 as covered under Entry No. 78 (residual entry) of Schedule V to the RVAT Act attracting tax at 14.5% and with effect from 14.07.2014 under Entry No. 29 (“Entry No. 29: Gases liquefied or not, other than those specifically mentioned in any of the Schedules : 14.5%”) of Schedule V to the RVAT Act which also attracted tax at the rate of 14.5%. Consequently, the respondent-revenue, vide assessment order dated 31.10.2017, disqualified the sale of these gases from the entry of ‘Industrial Inputs’ and accordingly levied differential additional tax, interest and penalty thereupon from AY 2011-2012 to AY 2016-2017. The appeals against the said levy was rejected, both by the Appellate Authority vide order dated 26.03.2018 and by the Rajasthan Tax Board vide order dated 26.03.2018, erroneously, by relying upon a Clarification dated 03.08.2017 issued by the Commissioner, Commercial Taxes under Section 91(4) of the RVAT Act read with Section 174 of the Rajasthan Goods & Services Tax Act, 2017 (for short “RGST Act”) and both these authorities maintained the levy of additional tax and interest but deleted the penalty thereupon.

4. Learned counsel for the petitioner-assessee has assailed the impugned levy of additional tax and interest, primarily on the following grounds:

4.1. That the gases produced and sold by the petitioner-assessee are inarguably the gases mentioned in Entry No. 34 of Part B of Schedule-IV to the RVAT Act. The only reason assigned by the respondent-revenue, to deviate from the specific entry, that too after a period of over 11 years, is that the petitioner-assessee was selling different gases in a single container. The said reason was opined by the Commissioner in his Clarification dated 03.08.2017, which in itself was in excess of the query raised by the Rajasthan Industrial Gases Manufactures Association. However, the said opinion of the Commissioner is bereft of any reasoning. Further,