IN THE OFFICE OF COMMISSIONER
DEPARTMENT OF TRADE AND TAXES
GOVERNMENT OF N.C.T. OF DELHI
VYAPAR BHAWAN, NEW DELHI
No.374/CDVAT/2015/357, Dated: 17.04.2015
M/s. Everest Kanto Cylinder Ltd., B-69/2, Wazirpur Industrial Area, Delhi-110052.
Present for the Applicant : Sh. R.K.Motwani, Authorised Signatory
Present for the Department : Sh. M.K.Aggarwal, Departmental Representative
The above named applicant filed an application on 12/02/2015 under section 84 of Delhi Value Added Tax Act, 2004 (hereinafter referred to as the “said Act”) and the question put up for determination under the aforesaid provision of law is as under: –
“What is the rate of Tax on (Oxygen Cylinder & Nitrous Oxide Cylinders)”
1. The application has been filed in the prescribed format DVAT-42 and the requisite fee of Rs.1000/- paid through online Reference No.420242206910115 dated 23.01.2015 of Indian Overseas Bank.
2. Sh. R.K.Motwani, Authorised Signatory of the Company, appeared and reiterated the facts and grounds of the case and requested to determine the rate of tax on Oxygen Cylinder & Nitrous Oxide Cylinders.
3. The brief facts of the case, as explained by the applicant are as under:-
i) M/s. Everest Kanto Cylinder Ltd., is a registered dealer of ward 206 having TIN 07250220379.
ii) The dealer is engaged in the sale of Oxygen and Nitrous oxide cylinder
iii) The dealer claimed that the item is covered under entry – 92 of the third schedule of the DVAT Act 2004 being medical item. Further he stated that almost all the dealer dealing in these items are charging tax @ 5% presuming as covered under the above entry as medical equipment/devices and implants while the dealer is charging tax @ 12.5%.
With these averments the dealer requested to determine the rate of tax on sale of Oxygen and Nitrous oxide cylinder so that a parity is maintained in the trade among all the dealers.
4. The DR appearing on behalf of the department stated that Entry 92 of the Third schedule of the DVAT Act 2004 reads as under :
Medical Equipment/devices and implants.
The entry clearly includes only medical equipments, devices and implants used. The medical gases used are not covered under this entry.
Further entry 84(38) of the third schedule of the DVAT Act 2004 reads as:-
Hydrogen, rare gases other than metals excluding oxygen (medicinal grade)
This entry again specifically excludes oxygen gas of medicinal grade.
Hence the item under consideration, oxygen cylinder 86 Nitrous Oxide Cylinder, are not included under third schedule and hence should be taxed as unspecified item under section 4(1)(e) of the DVAT Act 2004 and taxed at 12.5%.
I have heard both the sides and gone through the documents available on record and of the considered view that Oxygen and Nitrous Oxide Cylinders are not covered under entry 92 of the third schedule of the DVAT Act 2004 and hence should be taxed under section 4(1)(e) of the DVAT Act 2004 as unspecified item.
6. Held accordingly.
(Sanjeev Khirwar) Commissioner, VAT