Full Judgment Text
2009:BHC-OS:5732-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SALES TAX APPEAL NO. 4 OF 2008
The Commissioner of Sales Tax,
th
Maharashtra State, 8 Floor,
Vikrikar Bhavan, Mazgaon,
Sardar Balwantsingh Dhodi Marg,
Mumbai 400 010. ... Appellant
Versus
M/s. India Gypsum Ltd.
349, Business Point,
th
7 Floor, Western Express Highway,
Andheri (E), Mumbai 400 069. ... Respondent
Mr. V.A. Sonpal, A.G.P. For Appellant.
Mr. P.C. Joshi for Respondents,
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CORAM : FERDINO I. REBELLO &
J.H. BHATIA, JJ.
DATED : 17TH APRIL, 2009.
ORAL JUDGMENT (Per Ferdino I. Rebello, J.):
Admit on the following question :
“Whether in facts and circumstances of case, the Tribunal was right
inholding that product “gypsum board” is covered by entry C-41 in respect of
gypsum in all its forms?”
2. The respondent herein vide letter dated 14.7.2005 had sought clarification from
the appellant about the rate of tax on Gypsum Board covered by invoice No. 5190356
dated 21.4.2005. According to the Respondents gypsum board is a versatile building
material which lends itself to application in the interior spaces of commercial and
residential premises. The Respondents manufacture and market gypsum based products
which are “Gypsum Board and Gypsum Plaster”. The basic ingredients of these
products are industrial gypsum or synthetic gypsum which constitutes more than 97%
of the final product. The respondent therefore, made an application for determination of
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rate of tax on Gypsum Board. The appellant by order dated 14.11.2005 determined that
Gypsum Board covered by Invoice No. 5190356 dated 21.4.2005 falls under entry No.
E-I taxable at 12.5%. Aggrieved by that order, the respondent herein preferred an appeal
before the Maharashtra Sales Tax Tribunal. The tribunal by its order dated 30.10.2007
set aside the order of appellant dated 14.11.2005 and held that the Gypsum Board
covered by invoice earlier referred to will be liable to sale tax at the rate of 4% under
Entry 41 of Schedule C of M.V.A.T. Act. This appeal is preferred against the said order.
3. At the hearing of this appeal, on behalf of the Appellant, the learned counsel
submits that the expression “Forms of Gypsum” is not extensive enough to cover the
products manufactured out of Gypsum. The Forms of Gypsum it is submitted would
cover hydrated or dehydrated forms of gypsum and not the further articles which are
produced out of hydrated and dehydrated gypsum. In the process of manufacturing
Gypsum Board, paper is added to both surfaces for giving appearance of board. The
Gypsum Board is commercially understood as a different product from gypsum and
their uses are different. One is raw material and the other is finished product for
altogether different uses. In manufacture, different processes are applied at different
stages to prepare the board and the end product does not remain gypsum powder. The
board therefore, cannot be called a form of gypsum as the term “form” does not cover
the products manufactured out of it. The percentage of content of gypsum used in end
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product is not determinative factor for classification. The meaning of the word “form”
only means its natural existence or manifested forms without altering its meaning in
common trade parlance and common use. The words “Form” and “description” do not
include in their ambit the articles and products of a commodity. The end product of
gypsum board contains various ingredients to give it a character of board for altogether
different use than that of gypsum. It is therefore, submitted that the tribunal erred in
holding that he product Gypsum Board is a form of Gypsum within the meaning of
Entry 41 of Schedule C of MVAT Act and thus liable for tax.
It may be mentioned that in so far as Gypsum plaster is concerned, the Appellant
accepts that it is covered under Entry C-41.
4. The question therefore, that we are called upon to answer is whether the Gypsum
Board falls under the expression “All forms and description”. The counsel for the
Respondents have brought to our attention the the phrasology used in the schedules of
the Maharashtra Value Added Tax Act. Under C-41 the expression used is “all forms
and description”. Under Entry No. 91 it is all forms. Under A-31 it is in any form. In
A-9 and 9A it is specified forms. In C-30 it is a single form, C-31 it is mixed form and
C-67 it is primary form. So also the expression “of all types in A-16, A-41, C-01 and
others. The words except appears in A-18 and others “other than” in A-17 and other
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entries. The other expressions used are “all kinds” in C-3. Other expressions used are
“including”, “all varieties”, “excluding”, “that is to say”. The Legislature therefore,
having used various phrasology and or terminology, the court will have to assign
some meaning to the said words.
5. Let us first note the composition of Gypsum Board and Gypsum Plaster as has
been noted by the tribunal in its impugned order.
Sr. No. Raw material Gypsum Board Gypsum Plaster
% RM requirement % RM requirement
by weight by weight
1. Natural Gypsum/Synthetic 99% 96.8-97%
2. Paper for Boards and Vermiculite
of Perliite for Plaster 0.5% 2-3%
3. Additives 0.5% 0.1-02%
Thus in so far as Gypsum Board is concerned, the Gypsum content is to
the extent of 99% whereas in case of Gypsum Plaster it is 96.8-97%. Similar gypsum
Board has lessor percentage of paper and; vermiculite or Perliite and the additives.
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The tribunal has also noted the process of manufacture of Gypsum Board. We may
gainfully refer to what has been set out by the tribunal :
“Process of Manufacture of Gypsum Board - Gypsum Board is
manufactured using the natural gypsum/synthetic gypsum, paper and
additives. The manufacturing process is given below.
“Gypsum is hydrated by calcination which results in the
production of stucco. In other words, natural gypsum or synthetic
gypsum is converted into hemihydrate gypsum through calcination.
Calcination is the process of holding a material for prolonged periods
at elevated temperatures to remove moisture. The stucco is cooled to
be used for the manufacture of calcinate plasters. The bottom paper
reel and the top paper reel are mounted on respective roll beds. The
required quantity of additives are fed continuously to mixture. In
the mixture of the stucco, additives, water, foam will be mixed and
fed on the moving bottom paper continuously in the form or slurry.
The slurry will be spread on the bottom paper. The top paper will be
bud to the bottom paper through additives. The gypsum board will be
conveyed onto the moving conveyor and cut to required length on the
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cutter. The board is then dried after which they become hard and
handled without damage.”
In so far as Gypsum Plaster is concerned, this is what the tribunal stated :
“Process of manufacture of Gypsum Plaster : Dehydrate gypsum is converted
into hemihydrate gypsum through calcination. The additives are mixed with
hemidydrate gypsum. It is then cooled and bagged. At site, the hemihydrate
gypsum is mixed with water and re-converted into dehydrate gypsum. The
stucco is then ground and additives are mixed with it which results into
gypsum plasters.”
6. The entry itself reads as under :
“C-41 – Gypsum of all forms and descriptions”.
From Wikipedia, the free encyclopedia, some of the uses of Gypsum have been
set out which includes “Blackboard chalk, Plaster of Paris. It is also used as plaster,
wall board, some cements, fertilizers, paint filler, ornamental stone etc. Its chemical
composition is CaSO4-2(H2O).
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th
Form in Black’s Law Dictionary, 8 Edition is described as under :
“The outer shape or structure of something, as distinguished from its
substance or matter”.
“Description” is defined as under:
“A delineation or explanation of something by an account setting forth the
subject’s characteristics or qualities ...”
7. The expression “form” had come for consideration before the Supreme Court in
State of Gujarat Vs. Sakharwala Brothers, 19 STC 21 (SC). In that case under Entry 47,
the Legislature has used words “any form of sugar”,. Considering the expression the
Supreme Court held that it is intended to include within its ambit all forms of sugar that
is to say sugar of any type or texture, colour or density or whatever name by which it is
called. In that case the issue was whether “Patasa”, Harda” and “Alchidana” are forms
of sugar containing more than 90% of sugar and fall within the definition of entry 47 of
schedule A of the Bombay Sales Tax Act. There was no dispute that they contain more
than 90% of sugar. It was however, contended that “any form of sugar” refers to any
variety of sugar and that the words do not mean sugar in any form. It was urged that
the word “form” has not been used in the sense of shape or size but that it has been
used to indicate varieties of sugar and as such did not fall within entry No. 47 of
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Schedule A. The court rejected the contention by holding that the chemical composition
of Patasa, Harda and Alchidana is the same as that of sugar. The argument that they
were sweets used on festive occasions, the court held has no relevance on the question
of legal classification. In other words, considering the entry, the end user test was
found to be irrelevant. Considering the expression “Form” the court held that Patasa,
Harda and Alchidana are forms of sugar. Rejecting the argument that the phrase means
only “variety of sugar”, the court observed that if the legislature had intended to refer to
“any variety of sugar”, there is no reason why it should not have used that expression in
item No. 47. The court noted that though in interpretation of revenue laws, words are to
be taken in their commonly received and popular sense, or according to their
commercial designation, if that differs from the ordinary understanding of the word.
8. The expression “in all forms” had also come up for consideration before the
Supreme Court in, Trutuf Safety Glass Industries Vs. Commissioner of Sales Tax, U.P.
(2007) 8 VST 661 (SC). The court held that the expression in all its forms contained an
expansive description and connoted a visible aspect such as shape or mode in which a
thing existed or manifested itself, species, kind or variety. The expression “in all forms”
was different from the expression “all kinds”. The conceptual difference between the
words “all kinds” and “in all forms’ is that the former multiplies items of the same kind
while the latter multiplies the same commodity in different forms. The use of the word
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“in all forms” widens the scope of the entry.
The court then observed as under :
“It is settled position in law that while interpreting the entry for the purpose
of taxation recourse should not be made to the scientific meaning of the
terms of expressions used but to their popular meaning, that is to say, the
meaning attached to them by those dealing in them.” and thus added :
“It is well settled principle in law that the court cannot read anything
into a statutory provision which is plain and unambiguous. A statute is an
edict of the Legislature. The language employed in a statute is the
determinative factor of legislative intent.”
9. Considering therefore, the tests applied by the Supreme Court, when the
Legislature has used the expression “all forms and descriptions” that the court has to
give meaning to the words used by the legislature. The expression “all Forms and
description” therefore, will have to be assigned in the absence of being defined under ht
Act, by the ordinary dictionary meaning. We have earlier referred to both the dictionary
meanings and how the Supreme Court has itself understood the expression “form”.
Therefore, the word form will include any shape whether it be rectangular or square. In
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the case of “Sakharwala Brothers” the chemical composition of the substance was
considered as the sucrose content had to be above 90% for the product to fall within the
expression “sugar”. Does then Gypsum in its natural or synthetic form converted into
board cease to be “gypsum of all forms and description”. Gypsum Board commercially
may be understood as a different product from gypsum. Does it however, cease to be
“gypsum of all forms and description”. The main composition continues to be gypsum.
The form is a board. It is described as a gypsum Board and not “gypsum”. Considering
the entry and to give meaning to the legislative intent, gypsum Board, which is gypsum
in board form and described as gypsum Board will have to be held to fall under entry
“C-41”.
10. Considering the facts of the present case, can it be said and as now emerges does
Gypsum Board, ceases to be Gypsum. As the Tribunal noted the appellant had
proceeded to hold that it is not covered by the entry purely based on the classification in
the Customs Tariff Act. As the tribunal rightly noted this is irrelevant for the purpose of
considering the entry in the Maharashtra Sales Tax Act or VAT Act. What has to be
considered is the entry in the schedule. It may also be noted that in other states also
similar expressions have been used in so far as Gypsum is concerned. In so far as State
of West Bengal is concerned, the Gypsum Board and Gypsum Plaster are specifically
excluded. Therefore, the expression forms and description will have to mean gypsum of
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any shape and whatever description it may have in the market as long as chemical
composition remains the same. In our opinion, in so far as VAT is concerned, gypsum
Board will be covered by the entry C-41. We therefore, find no fault in the judgment of
the tribunal.
11. In the light of the above, we find no merit in this appeal. The question is answered
in the affirmative in favour of the respondents and against the appellant.
(J.H. BHATIA,J.) (FERDINO I. REBELLO,J.)
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