Plastic crates - Delhi

M/s Subhash Sales Corporation
Library Road, Azad Market,
Delhi-110006
IN THE COURT OF COMMISSIONER
DEPARTMENT OF TRADE AND TAXES
GOVERNMENT OF N.C.T. OF DELHI
VYAPAR BHAWAN, NEW DELHI
ORDER
No: 273/CDVAT/2010/37
Dated: 20.09.2010
Present for the Applicant : S/Sh. S K Anand, Vasdev Lalwani Advocates
Present for the Department : Shri T.C. Sharma, DR.
The above named applicant has filed an application on 23-06-2010 under
Section 84 of DVAT Act, 2004 (hereinafter referred to as the “said Act”) and the
question put up before this Court for determination under the aforesaid provision of
law is as under:-
“Whether the sale of plastic crates used for transporting/conveyance is
covered by entry no. 168 of Part-A of notification dated 11-05-2005 i.e. the
list of industrial inputs under the DVAT Act and taxable @ 5% or is taxable
at any other rate?”
2. The application for determination has been made in the prescribed format
DVAT-42 and the requisite fees of Rs.500/- paid through Demand Draft No.
337348 dated 14-06-2010.
3. DR for the revenue stated that this Court vide an exparte decision has
already determined the question which is the subject matter of the present application
vide order No. 92/CDVAT/2005 dated 17.5.2006 where in it has been held that “the
articles for packing of plastics namely boxes, cases, crates, containers, carboys,
bottles and the jerry cans are found to be taxable as general unclassified goods
attracting tax @ 12.5% u/s 4(1)(e) of the DVAT Act, 2004”.
4. Sh. Anand and Sh. Lalwani, Advocates who appeared on behalf of the dealer
reiterated the grounds of application argued that the said determination order was
erroneous and cited the clarification issued by the department vide circular No. 5 of
2006-07; F.6(34)/Policy-I/VAT/2006/278-86 dated 21.6.2006 which reads as under:-
“some entries in the schedule of VAT rates appended to the Delhi Value
Added Tax Act, 2004 contain HSN codes against the items mentioned therein. It is
general understanding that these HSN codes are interpreted in different sections at
times.
In order to clear any doubt regarding the interpretation of entries containing
HSN codes, it is intended to clarify that where a four, six or eight digit code is

mentioned in the schedule, it would cover all items falling under the code unless
there is any specific exclusion prescribed for the same in the said act.
It is repeated for the sake of clarity beyond doubt that this clarification is not
meant for such entries in the Delhi Value Added Tax Act, 2004 where the description
does not match fully with the description given for that HSN entry in the Central
Excise Tariff Act, 1985”.
5. Sh. Lalwani stated that Entry No. 84 of the Third Schedule to the DVAT
Act, 2004 containing Industrial Inputs, note 3 appended below entry No. 41A of the
Third Schedule of the Delhi Value Added Tax Act, 2004 were inserted w.e.f.
14.3.2006 and which read as follows:-
Note – (3) subject to Note – (2), for the purpose of any entry contained in
this notification, where the description against any heading or, as the case may be,
sub-heading, matches fully with the corresponding description in the Central Excise
Tariff, then all commodities covered for the purpose of the said tariff under the
heading or sub-heading will be covered by the scope of this notification.
6 (i) Under the Central Excise & Customs Tariff:-
As per HSN code No. 3923:-
Articles for the conveyance or packing of goods, of plastics; stoppers, lids,
caps and other closers of plastic.
(ii) Entry No. 84(168) of schedule III of the DVAT Act, 2004:-
Code No. 39.23:- Articals for the conveyance or packing of goods of
plastics, stoppers, lids, caps and other closures, of plastics but not including:-
(a) Insulated wares
(b) bags of the type which are used for packing of goods at the time of sale for
the convenience of the customer including carry bags.
From the reading of entry No. 84(168) of the Third Schedule of the DVAT
Act, 2004 it is evident that description used under the said entry is similar to that
under code No. 3923 of the Central Excise & Customs Tariff.
Therefore, note No. 3 below entry No. 41(a) of the Third Schedule of the
Delhi Value Added Tax Act, 2004, which is also applicable to entry No. 84 of the
said act, squarely applies to the instant case. Hence it is submitted that sub-heading
code No. 3923 10 includes “crates’ is covered in entry No. 84(168) of the Third
Schedule of the DVAT Act, 2004.
7. DR stated that the item Plastic Crates used as article for the conveyance or
packing of good can be covered under the entry No. 84(168) and shall attract VAT @ 5%.
8. I have heard both the parties, gone through the earlier determination order
No. 92/CDVAT/2005 dated 17.5.2006 of this Court, the circular No. 5 of 2006-07;
F.6(34)/Policy-I/VAT/2006/278-86 dated 21.6.2006, entry No. 84(168) of the DVAT
Act, 2004, HSN code No. 3923 under the Central Excise & Customs Tariff and on
suo-moto review, I am of the considered view that the item Plastic Crates used as
article for the conveyance or packing of good can be covered under the entry No.
84(168) and shall attract VAT @5%. However, this determination shall be applicable

from the date mentioned herein above and will not affect old transactions prior to this
date and the authorities under the DVAT Act, 2004 will not refund any amount if so
collected from the applicant.
Held accordingly.
Copy for information and necessary action to:
1. The Applicant
2. The Addl. Commissioner (Law & Judicial)
3. The Value Added Tax Officer (Policy Branch)
4. Deptt. of Trade & Taxes Bar Association
5. Guard File.
(Jalaj Shrivastava)
Commissioner (T&T)
(Jalaj Shrivastava)
Commissioner (T&T)