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SAMEER JAIN
Commercial Taxes officer, Circle-A, Jaipur – Appellant
Versus
Bharti Hexacom Limited – Respondent
| Table of Content |
|---|
| 1. definition and nature of acle (Para 1 , 2) |
| 2. arguments on legality of acle as goods (Para 3 , 5 , 6 , 7) |
| 3. court’s assessment of previous judgments (Para 4 , 8 , 9) |
| 4. judgment on applicability of vat and final decision (Para 10 , 11 , 12) |
ORDER :
(Sameer Jain, J.)
Present revision petitions were admitted on following question of law:-
(ii) Whether the Tax Board was justified in law in holding that sale of Data Transmission through OFC using ACLE is not a "Deemed Sale" under RVAT Act?"
2. It is the case of the revenue-petitioner that light carrier/ACLE, used by telecommunication companies like the present assessee-respondent, is a movable property capable of being guided from point to point, having all the stipulated attributes of goods like abstraction, possession, transfer, use, delivery, etc., and works very much like 'electric energy' and therefore is liable to be treated as 'goods' as defined under Section 2 (15) of the Rajasthan Value Added Tax Act, 2003 (in short "RVAT Act") and taxed accordingly.
3. O
The burden of proof on the revenue to justify classification, the principles of specific entry overriding general entry, and the importance of supporting evidence in classification matters.
Point of Law : Court see no difference between a sale of a software program on a CD/floppy disc from a sale of music on a cassette/CD or a sale of a film on a video cassette/CD.
Mobile battery chargers are independent products and should be taxed separately from cellphones, as established by the Supreme Court in Nokia India Pvt. Ltd. case.
Sale of goods – A necessary ingredient of sale of goods is transfer of property in goods subject matter of sale from seller to buyer – Only because a person is allowed to use certain goods of owner, ....
The main legal point established in the judgment is that the transaction of selling medical equipment during medical treatment predominantly constitutes a service and not a sale under the RVAT Act, 2....
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