Full Judgment Text
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2023INSC892
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3773 OF 2011
M/S TRIVENI GLASS LIMITED REP.
BY ITS DEPUTY GENERAL
MANAGER (SALES AND P.R.)
SHRI R.K. SINHA …APPELLANT
VERSUS
COMMISSIONER OF
TRADE TAX, U.P. …RESPONDENT
WITH
Civil Appeal NO. 5914 OF 2023
M/s TRIVENI GLASS LTD. …. APPELLANT
VERSUS
ASSTT. COMMISSIONER (ASSESSMENT)
TRADE TAX …RESPONDENT
WITH
Civil Appeal NOs.5965-5966 OF 2023
M/s TRIVENI GLASS LTD. …. APPELLANT
VERSUS
Signature Not Verified
Digitally signed by
NEETA SAPRA
Date: 2023.10.10
17:44:00 IST
Reason:
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COMMISSIONER OF
TRADE TAX, UP ….RESPONDENT
J U D G M E N T
Aravind Kumar, J.
1. The point that arises for our consideration is whether “tinted
glass sheets” manufactured by the appellants is liable to be taxed as
“goods or wares made of glass” under the Notification No.5784
dated 07.09.1981 being Entry No.IV or as unclassified item.
2. In all these appeals, the above common question of law arises
for our consideration. The facts in brief which are common in Civil
Appeal No.3773 of 2011 relates to the tax assessment years 1996-97,
Civil Appeal No.5914 of 2023 relates to the notice issued for re-
assessment for the tax assessment years 1992-93 to 1996-97 and
whereas Civil Appeal Nos.5965-66 of 2023 relates to the tax
assessment years 1998-99 and 2003-04 respectively.
3. The appellant deals with manufacturing and sale of sheet glass,
tinted glass, coloured glass, figured glass, void glass, wired glass,
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float glass and neutral glass. After taking note of the books of
accounts tendered during the course of the assessment proceedings the
assessing officer opined after enquiry that tinted glass has been
manufactured by assessee in a separate unit and the process adopted
for its manufacture is different from manufacture of sheet glass.
Assessing Officer has further opined in his order that raw materials
used in manufacture of tinted coloured glass are cobalt oxide, carbon
oxide, iron oxide etc. besides those used in the manufacture of sheet
glass. Assessing Officer has further held that the transparency and
density of tinted coloured glass is different from the simple glass
surface as also solar radiation on the absorption capacity of tinted
coloured glass being more than that of the simple sheet glass. He
further concludes in his assessment orders that in the ordinary and
common parlance the tinted glass is not recognised or understood as
sheet glass.
4. Hence, the assessing officer imposed tax @15% on the sale of
the goods by holding that said goods cannot be included in the
category of plain glass but under the category of “all goods and wares
made of glass” as reflected in the Notification No.5784 dated
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07.09.1981. The appeals filed against the said assessment orders came
to be dismissed and the imposition of tax @15% came to be upheld.
The appellate authority also relied on the meaning of the word
“goods” as reflected in circular dated 28.09.1993 for arriving at a
conclusion that only plain glass sheet has been taken as unclassified
item and not the goods in question. The assessee was unsuccessful
before the Trade Tax Tribunal. The contentions raised and grounds
urged contrary to the findings recorded by the assessing officer and
the appellate authority also did not find favour by the tribunal. In
other words, the orders of the authorities came to be affirmed by the
tribunal. The assessee pursued its grievance before the High Court by
filing a revision petition contending that plain glass panes which are
commercially known as sheet glass includes sheet glass both in tinted
and non-tinted forms and the entry “plain glass panes” cannot be
interpreted to exclude the tinted glass from its purview. The
contention of the appellant that manufacturing of tinted/coloured glass
is the same as that of uncoloured glass also did not find waiver by the
tribunal. Hence, the revision application/petition came to be
dismissed.
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5. The assessment orders which related to the tax assessment
years 1996-97, 1998-99 and 2003-04 were the subject matter of the
appeals and revision as noticed hereinabove. However, for the tax
assessment years 1992-93 to 1996-97 notices under Section 21(2)
came to be issued stating thereunder that said goods were liable to be
taxed @15% while tax @10% inclusive of surcharge had been
deposited. Hence, appellant was called upon to showcase as to why
sales tax @15% should not be levied on the sale of the said goods.
The notice issued for the tax assessment year 1996-97 came to be
adjudicated and an assessment order came to be passed on 12.9.2002
which is the subject matter of Civil Appeal No. 3773 of 2011 . The
notices demanding tax @15% for the tax assessment years 1992-93 to
1996-97 came to be challenged in Writ Petition No. 283 of 2001
before the High Court of judicature at Allahabad which writ petition
came to be dismissed in the light of said issue having already been
laid to rest in appellant’s case itself, in the light of assessment order
for the tax assessment year 1996-97 having been passed by rejecting
the similar contentions. Hence, in all these appeals the common
question of law has arisen and as such they are taken up together for
consideration, adjudication and determination thereof.
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6. We have heard the arguments of Shri S.K. Bagaria, learned
senior counsel appearing on behalf of the appellant and Shri R.K.
Raizada, learned senior counsel appearing for the respondent.
7. Shri S.K. Bagaria, learned senior counsel appearing for the
appellant-assessee has contended that tinted glass is also sheet glass
and as such attracts 10% tax and not 15% as claimed by the revenue.
He would contend that the only difference between both the glasses is
colour. He would urge that tinted glass and simple glass are same
commodities and both do not fall under the category of “goods and
wares made of glass”. By placing reliance on several judgments noted
hereinbelow he would submit that tinted glass is glass in its primary
sense and no material difference in the manufacturing process of
tinted sheet glass and plain glass exists. He would elaborate his
submissions by contending that tinted glass is liable to be excluded as
it is nothing but “plain glass panes” and he drew our attention to the
dictionary meaning of the word “plain” and “panes” to contend that
there is no distinction between these two commodities. He submits
that adding of colour will not take away the tinted glass sheet out of
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the ambit of exclusion clause of Entry No. 4 of Notification No.5784
dated 07.09.1981.
8. He would rely upon the description of the expression “glass”
and “glass sheet” given in Indian Standard Specification for Flat
Transparent Sheet Glass (Third Revision) March, 1988 to substantiate
his contention. He would also submit that the revenue has failed in its
attempt to discharge the burden and demonstrate that a particular item
falls in a particular entry. He would submit that in the earlier
assessment year the assessing authority itself had treated the “tinted
glass sheet” as plain glass sheet and as such for the assessment year in
question it should be accordingly treated.
9. In these factual circumstances the recourse to tax by treating
the commodity in question as falling within the residuary entry has to
be resorted to is also his contention. In support of his submissions, he
has relied upon the following judgments:
(i) Atul Glass industries (Pvt.) Ltd vs Collector of
Central Excise And Hindustan Safety Glass Works
Ltd. Vs Union of India & Ors. (1986) 3 SCC 480
(ii) Gujarat Steel Tubes Ltd. And Ors. VS State of
Kerala and Ors. (1989) 3 SCC 127
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(iii) Geep Flashlight Industries Ltd. Vs Union of
India & Ors. (2002) 9 SCC 545
(iv) Brindavan Bangle Stores and Ors vs Asstt.
Commissioner of Commercial Taxes and Another.
(2000) 1 SCC 674
(v) State of Jharkhand and others Vs LA Opala
R.G. Limited. (2014) 15 SCC 136
(vi) M/s. Indo International Industries Vs
Commissioner of Sales Tax. Uttar Pradesh. (1981)
2 SCC 528
(vii) Commissioner of Sales Tax, Madhya Pradesh
Vs Triveni Sheet Glass Works Ltd. And Others
(1989) SCC Online MP 346: (1990) 76 STC 308
(FB)
(viii) Commissioner of Sales Tax. Delhi
Administration. Vikas Bhawan, New Delhi Vs
Baluja Glass Company 1979 SCC Online Del 300:
(1980) 46 STC 17
(ix) Commissioner of Sales Tax Vs Mohd. Ayub
& Sons 1981 SCC Online All 971: (1982) 50 STC
187
(x) HPL CHEMICALS LTD. Vs Commissioner
of Central Excise, Chandigarh (1997) 2 SCC 677
(xi) U.P. Glass Works Ltd. Vs Commissioner,
Sales Tax. UP, Lucknow. 1973 SCC Online All
422: (1973) 32 STC 252 : 1973 Tax LR 2589
(xii) Commissioner. Sales Tax, U.P. Lucknow Vs
Banaras Bead Manufacturing Co., Varanasi 1968
SCC Online All 380: (1970) 25 STC 100
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(xiii) Jalal Plastic Industries And Ors. vs Union of
India And Ors. 1981 (8) ELT 653
(xiv) Commissioner Of Sales Tax vs Dawoodbhoy
M. Tayabally (1975) 36 STC 291
(xv) Nirlex Spares (P) Ltd. Vs Commissioner of
Central Excise (2008) 2 SCC 628
(xvi) State of Uttar Pradesh & Others vs.
Aryaverth Chawal Udyog & Others (2015) 17 SCC
324
(xvii) Commissioner of Customs (Import),
Mumbai vs. Dilip Kumar & Company & Ors.
(2018) 9 SCC 1
10. Per contra, Shri R.K. Raizada, learned senior counsel
appearing for the respondent state would support the orders passed by
the authorities and the High Court and prays for dismissal of the
appeals.
FINDINGS RECORDED BY THE HIGH COURT
11. The learned High Court before whom grounds as urged by
Shri S.K. Bagaria, learned senior advocate, appearing for the assessee
had been urged was of the opinion that six (6) questions were required
to be answered and accordingly framed the following six (6)
questions:
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(i) Whether the entry "All goods and wares made
of glass". excludes plain glass panes and treated
the same as unclassified item, the Trade Tax
Tribunal and lower authorities were justified to tax
tinted/plaint glass panes as declared commodity?
(ii) Whether in view of common parlance as well
as user of the tinted/coloured glass panes and plain
glass panes are identical, in spite of that the tax has
been imposed on the coloured / tinted glass panes
as declared commodity instead of unclassified
item?
(iii) Whether plain glass panes does not cover
tinted/ coloured glass panes?
(iv) Whether once the entry plain glass panes is
specifically excluded from the entry "All goods
and wares made of glass" the authorities were not
justified in imposing tax on plain glass panes
(coloured and tinted glass panes) as goods made of
glass wares/
(v) Whether in view of the fact that by mixing inch
of colours no new commercial commodity comes
into existence as tinted/coloured glass panes is a
plain glass panes, still the tax can be imposed as
declared commodity instead of unclassified item?
(vi) Whether in any view of the matter, the order
passed by the Trade Tax Tribunal is justified?
12. The High Court has noted that authorities had taken note of the
fact that during survey conducted through Special Investigation
Branch Unit, Allahabad, it was noticed that manufacturing process
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adopted for manufacturing of tinted sheet was different or distinct
from the manufacturing process adopted for manufacture of glass
sheet and it was also noticed that the tinted glass sheet was
manufactured in a separate unit. The High Court also noted that
authorities had noted that density and transparency of the tinted
colour sheet glass is different from that of ordinary sheet glass and the
solar absorption power of tinted coloured glass sheet is much more
than plain sheet glass and in the market or in the common parlance
‘tinted glass sheet’ is not treated as plain sheet glass.
OUR FINDINGS
13. The tug of war between the assesses and the revenue in these
appeals revolves around the plea of assessee that tinted glasses
manufactured by it falls under clause (c) of sub-section (1) of Section
3A namely residuary clause and as such tax is to be levied @ 10%;
whereas revenue is contending that it would fall under Entry No.4 of
the notification No.5784 dated 07.09.1981 which Notification has
been issued in exercise of the power conferred under clause(d) of
Sub-section (1) of Section 3A of the Act. It is in this background, the
rival contentions requires to be examined and it would be apt and
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appropriate to extract Section 3A of U.P. Trade Tax Act, 1948. It
reads as under:
“Section 3-A: Rates of tax
(1) Except as provided in Section 3-D, the tax payable by a
dealer under this Act shall be levied:--
(a) on the turnover in respect of "declared goods", at the
point of sale to the consumer at the maximum rate for
the time being specified in Section 15 of the Central
Sales Tax Act, 1956, or where the State Government, by
notification, declares any other single point or a lesser
rate, at such other point or at such lesser rate;
(b) the turnover in respect of such goods), other than the
goods referred to in clause (a), at such point and at such
rate, not exceeding fifty per cent, as the State
Government may, by notification, declare, and different
points and different rates may be declared in respect of
different goods
(c) on the turnover in respect of goods, other than those
referred to in clause (a) or clause (b), at the point of sale
by manufacturer or importer at the rate of ten percent.
(2) Every notification made under this section shall, as soon
as may be after it is made, be laid before each House of the
State Legislature, while it is in session, for a total period of
not less than fourteen days, extending in its one session or
more than one successive sessions; and shall, unless some
later date is appointed, take effect from the date of its
publication in the Gazette subject to such modifications or
annulments as the two Houses of the Legislature may during
the said period agree to make, so, however, that any such
modification or annulment shall be without prejudice to the
validity of anything previously done thereunder except that
any imposition, assessment, levy or collection of tax or
penalty shall be subject to the said modification or annulment.
(3) Where the State Government has declared any point or
rate at which the tax payable by a dealer under the Act be
levied under clause (b), clause (c), clause (c-1), clause (d) or
clause (e) of sub-section (1) as existed immediately before the
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commencement of the Uttar Pradesh Trade Tax (Second
Amendment) Act, 2000 and such declaration in force on such
commencement, such rate or point of tax shall continue to be
in force after such commencement, until modified or
rescinded.”
14. A perusal of sub-section (1) of Section 3-A would indicate that
the tax payable by the dealer under the Act shall be levied under
clause (a) on the turnover in respect of "declared goods", at the point
of sale to the consumer at the maximum rate for the time being
specified in Section 15 of the Central Sales Tax Act, 1956, or where
the State Government, by notification, declares any other single point
or a lesser rate, at such other point or at such lesser rate; under clause
(b) on the turnover in respect of such goods, other than the goods
referred to in clause (a), at such point and at such rate, not exceeding
fifty per cent, as the State Government may, by notification, declare,
and different points and different rates may be declared in respect of
different goods; under clause (c) on the turnover in respect of goods,
other than those referred to in clause (a) or clause (b), at the point of
sale by manufacturer or importer @10 percent.
15. The Notification No. ST-2-5784/X-10(1)-80 dated 7/9/1981
issued in exercise of the power conferred under clause(d) of Sub-
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section (1) of Section 3A of the Act specifies that under Entry No.
4 reads as under:
“4. All goods and glass wares made of glass but not
including plain glass panes optical lenses, hurricane
lantern, chimneys bottles and phials, glass beads,
clinical syringes, Therma Meters and scientific
apparatus and instruments made of glass.”
Thus, on a plain reading of the above entry it would leave no manner
of doubt that all goods and wares made of glass would fall within the
definition of the said entry or in other words, all goods and wares
made of glass would fall within Entry No.IV of the aforesaid
notification and thus attract a duty @15 %. The exclusion of plain
glass panes, optical lens as indicated therein would fall within the
residuary clause attracting 10 % tax.
16. In the aforesaid background, it requires to be examined in the
facts that has unfolded in the present case as to whether the tinted
glass sheet is to be treated as equivalent to plain glass sheets/panes or
not.
17. Tracing the history of the entry can be noticed as under:
(i) Glass wares 1.4.48 to 31.3.56
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(ii) Glasswares other than
1.4.56 to 19.5.76
Hurricane lantern, chimneys,
optical lenses and bottles.
(iii) All the goods and wares made
of glass but not including plain
glass, panes, optical lenses,
Hurricane lantern, chimneys,
bottles and phials glass beads,
clinical syringes, thermometer
made of glass.
(iv) All the goods and wares made
7.9.91 till date
of glass but not including plain
glass, panes, opticals lenses,
Hurricane lantern, chimneys,
bottles and phials glass beads,
clinical syringes, thermometer
and scientific apparatus and
instruments made of glass.
There is no dispute to the fact that earlier the entry was
“glassware” alone and the said entry was subsequently amended by
adding word “all goods” within its scope and ambit and this widening
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of the expression would indicate the intention of the legislature to
include all goods and wares of glass unless excluded, in other words
the intention of the legislature is explicitly clear to include in its ambit
any goods and wares made of glass. The meaning of the word “of”
also acquires the significance. The intention of the legislature of using
this expression “of” would reveal the purpose and it would be the
endeavour of the court to put itself in the chair of the legislature and
presume that the legislature was reasonable as held by this Court in
Mauri Yeast India Private Limited Vs. State of U.P. (2008) SCC 680
wherein the expression “chemicals of all kinds” was interpreted. It is
well settled principle that the word used in a statute must take its
colour from the object it seeks to achieve and also by considering the
words with which it is associated in the context.
18. In the matter of Geep Flashlight Industries Ltd. Vs. Union of
India and others ( 2002) 9 SCC 545 , this Court was of the view that
canon of construction commands that commodity commonly known
in the market would be the basis for determination of its entry. It came
to be further held:
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“ 5. By a catena of decisions it is settled law that an
expression used in a taxing statute for describing a
commodity must be given the meaning which is
generally given to it by a person in the trade or in the
market of commodities and should be interpreted in the
sense the person conversant with the subject-matter of
the statute and dealing with it would attribute to it.
(See Ramavatar Budhaiprasad v. Asstt. STO [(1961) 12
STC 286 : AIR 1961 SC 1325] .) The High Court
approached the matter from this angle and reached the
correct conclusion that the expression “articles made of
plastics” used in Tariff Item 15-A(2) does not cover
such articles which are not directly made from the
material indicated in sub-item (1) but are made from
articles made out of such material.”
19. Reiterating the position with regard to interpretation of
provisions in fiscal statues and adherence to the principle of popular
meaning as understood in their common and popular ex-parlance in
the matter of State of Jharkhand and others Vs. LA Opala RG
Limited- (2014) 15 SCC 136 it came to be held:
“22. It is a settled law that in taxing statutes the terms and
expressions must be seen in their common and popular
parlance and not be attributed their scientific or technical
meanings. In common parlance, the two words “type” and
“form” are not of the same import. According to
the Oxford Dictionary , whereas the meaning of the
expression “types” is “kind, class, breed, group, family,
genus”; the meaning of the word “form” is “visible shape
or configuration of something” or the “style, design, and
arrangement in an artistic work as distinct from its
content”. Similarly, Macmillan Dictionary defines “type”
as “a group of people or things with similar qualities or
features that make them different from other groups” and
“form” as “the particular way in which something appears
or exists or a shape of someone or something”. Therefore,
“types” are based on the broad nature of the item intended
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to be classified and in terms of “forms”, the distinguishable
feature is the particular way in which the items exist. An
example could be the item “wax”. The types of wax would
include animal, vegetable, petroleum, mineral or synthetic
wax whereas the form of wax could be candles, lubricant
wax, sealing wax, etc.”
20. In the instant case, assessee has placed reliance on the full
bench Judgment of the High Court of Madhya Pradesh in the matter
of Commissioner of Sales Tax, Madhya Pradesh Vs. Triveni Sheet
Glass Limited and others, (1990) 76 STC 308 (Full Bench)= 1989
SCC online MP 346 whereunder the issue relating to entry of glass
sheets had come up for consideration namely whether glass sheets
falls within the ambit of the expression “goods made of glass and
glassware”. This judgment which was relied upon under the
impugned order came to be distinguished as under:
“Then, reliance was placed on CST, Madhya Pradesh Vs
Triveni Sheet Glass Works Limited (1990), 76 STC 308 , a
full bench decision of the Madhya Pradesh High Court.
Therein the question was with regard to the taxability of
glass sheets. The relevant portion of the Entry was "goods
made of glass and glasswares". The full bench in para 7
noticed that undoubtedly there is distinction between glass,
goods or articles made of glass. After doing so, it quoted a
passage from the order of the Board wherein it was held by
the Board that glass sheet, is glass simplicitor. Glass sheet
is, therefore, according to the Full Bench a primary
product which can be used for producing the goods or
articles made of glass and it cannot be equivated with
goods or articles made of glass. The Full Bench expressed
its dissent with the decision reported in Commissioner of
Sales Tax, Madhya Pradesh, Nagpur v. Mohanlal Ramkisan
Nathani (1955) 6 STC 136 and Tribuwandas Golabchand
19
and Brothers, Nagpur V. State of Maharashtra (1965) 16
STC 452 (Bombay) and CST Vs Bombay Glasshouse
(1986) 63 STC 350 (M.P.). The Full Bench was of the
opinion that in these decisions, it was not taken into
account that the glass sheet is common parlance is glass
simplicitor" and glass sheet is a primary product used for
producing articles of goods made of glass. Glass sheet is a
primary product." This distinguishes the case from the
facts of the present case.”
21. This Court in Atul Glass industries Pvt. Ltd. Vs. Collector of
Central Excise, (1986) 63 STC 322 has held the test commonly
applied to determine whether an article after subjecting to
manufacturing processes becomes a different article or remains the
same is: how is the product identified by the class or section of the
people dealing with or using such product. It came to be held:
“ 8. The test commonly applied to such cases is: How is
the product identified by the class or section of people
dealing with or using the product? That is a test which is
attracted whenever the statute does not contain any
definition. Porritts and Spencer ( Asia ) Ltd. v. State of
Haryana [(1979) 1 SCC 82 : 1979 SCC (Tax) 38 : AIR
1979 SC 300 : (1978) 42 STC 433] . It is generally by
its functional character that a product is so identified.
In CST, U.P. v. Macneill & Barry Ltd., Kanpur [(1986)
1 SCC 23 : 1986 SCC (Tax) 155] this Court expressed
the view that ammonia paper and ferro paper, used for
obtaining prints and sketches of site plans could not be
described as paper as that word was used in common
parlance. On the same basis the Orissa High Court held
in State of Orissa v. Gestetner
Duplicators ( P ) Ltd. [(1974) 33 STC 333 (Ori)] that
stencil paper could not be classified as paper for the
purposes of the Orissa Sales Tax Act. It is a matter of
common experience that the identity of an article is
associated with its primary function. It is only logical
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that it should be so. When a consumer buys an article,
he buys it because it performs a specific function for
him. There is a mental association in the mind of the
consumer between the article and the need it supplies in
his life. It is the functional character of the article which
identifies it in his mind. In the case of a glass mirror, the
consumer recalls primarily the reflective function of the
article more than anything else. It is a mirror, an article
which reflects images. It is referred to as a glass mirror
only because the word glass is descriptive of the mirror
in that glass has been used as a medium for
manufacturing the mirror. The basic or fundamental
character of the article lies in its being a mirror. It was
observed by this Court in Delhi Cloth and General Mills
Co. Ltd. v. State of Rajasthan [(1980) 4 SCC 71 : 1980
SCC (Tax) 548 : AIR 1980 SC 1552 : (1980) 3 SCR
1109] which was a case under the sales tax law: (SCC
pp. 75-76, para 7)
“... In determining the meaning or connotation of
words and expressions describing an article or
commodity the turnover of which is taxed in a sales tax
enactment, if there is one principle fairly well settled it
is that the words or expressions must be construed in the
sense in which they are understood in the trade, by the
dealer and the consumer. It is they who are concerned
with it, and it is the sense in which they understand it
that constitutes the definitive index of the legislative
intention when the statute was enacted.”
That was also the view expressed in Geep Flashlight
Industries Ltd. v. Union of India [(1985) 22 ELT 3] .
Where the goods are not marketable that principle of
construction is not attracted: Indian Aluminium Cables
Ltd. v. Union of India [(1985) 3 SCC 284 : 1985 SCC
(Tax) 383] . The question whether thermometers,
lactometers, syringes, eyewash glasses and measuring
glasses could be described as “glassware” for the
purpose of the Orissa Sales Tax Act, 1947 was
answered by the Orissa High Court in State of
Orissa v Janta Medical Stores [(1976) 37 STC 33 (Ori)]
in the negative. To the same effect is the decision of this
Court in Indo International Industries v. CST, Uttar
Pradesh [(1981) 2 SCC 528 : 1981 SCC (Tax) 130 :
AIR 1981 SC 1079 : (1981) 3 SCR 294] where
hypodermic clinical syringes were regarded as falling
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more accurately under the entry relating to “hospital
equipment and apparatus” rather than under the entry
which related to “glasswares” in the UP Sales Tax Act.”
In the aforesaid Judgment, the question that arose for consideration
was under what tariff item ‘glass mirror’ would fall, and glass screens
fitted in motor vehicles as wind screens, rear screens, window screens
would fall under which competing tariff item. Adjudicating this
question, this Court held that glass sheet after successive stage of
processing undergoes a complete transformation to become a glass
mirror and a different commercial product with a reflective surface. It
was further held, after this process glass sheet is reduced to a mere
medium and if any part of the coating is scratched and removed that
particular area of the glass mirror will cease to be a glass mirror. It
was further held that said commodity is referred to as a glass mirror
only because the word “glass” which is descriptive of the mirror and
basis or fundamental character of the article lies in its being a mirror
cannot be regarded as glass. Thus, the legislative intent is clear as
regards the product, namely, the primary product is not coupled with
goods and articles made of that primary product. Thus, it would
emerge from the test commonly applied to determine whether an
article after subjecting it to manufacturing process becomes a
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different article or remains same and as held in the aforesaid
Judgment it will have to be examined as to how the product is
identified by the class or section of people dealing with or using the
product. This test acquires significance particularly when the statue
does not contain any definition and by its functional character a
product is so identified.
22. In fact, the High Court has noticed this fact and has recorded the
following finding:
“The said issue can be resolved from the point of view
as to how the persons who are in the business understands
the meaning of plain glass sheets in commercial words, as
noticed by the tribunal, plain glass sheets means colourless
glass or having a colour of water. The tribunal has noticed
that a dealer of glass sheet, is not required to exhibit all
kinds of sheet glass including coloured one when a
customer demands plain glass sheet. Unless a coloured
glass is asked for, a dealer exhibits the (uncoloured) plain
glass sheet. The said finding of the tribunals essentially a
finding of fact. In common parlance also, in window and
doors, plain glass sheet i.e. uncoloured glass sheets are
used generally These glass sheets are also used as table
top, in showcase and also as racks in Almirah. It may be
noted that only plain glass sheets which is not coloured is
used generally.”
23. Now, we proceed to note the simple dictionary meaning
assigned with regard to “plain glass panes” in order to examine the
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claim of assessee to extend the meaning assigned to “plain glass
sheet” to “tinted glass sheet.”
PLAIN:
Webster’s Encyclopaedic Unabridged Dictionary 1989
Edition defines “Plain" as-
“Plain (plan) adj. 1. clear to distinct to the eye or ear: a
plain trail to the river, to stand in plain view. 2. one's
meaning plain, a dislike of the subject that was plain. 3.
conveying the meaning clearly and simply: easily
understood; plain 4. downright; sheer; utter; plain folly,
plain stupidly. 5. free from ambiguity or evasion; candid;
outspoken: the plain truth of the matter. 6. without special
pretension, superiority elegance, etc.; ordinary: plain
people. 7. not beautiful: physically unattractive or
undistinguished: a plain face; a childhood fear that she
would be plain. 8. without intricates or difficulties. 9.
ordinary, simple, or unostentatious: Although she was a
duchess, her manners were attractively plain. 10. with little
or no embellishment, decoration, or enhancing elaboration:
a plain blue suit. 11. without a pattern, figure, or device: a
plain fabric. 12. not rich, highly seasoned, or elaborately
prepared, as food: plain, fresh, substantial fare; a plain diet.
13, flat or level: plain country. 14. unobstructed, clear or
open, as ground, a space, etc. 15. Cards, being other than a
face card or a trump. - adv. 16. clearly and simply: He's
just plain stupid - n. 17. an area of and not significantly
higher than adjacent areas and with relatively minor
difference in elevation, commonly less than 500 feet,
within the area. 18. the Plain, Fr. Hist. (in the National
Assembly) the loosely organised party of moderate
republicans: so called because its members occupied the
lowest seats or benches. Cf. mountain (def. 4). 19. The
plains. See Great Plains. [ME OF <L plan (us) flat, level,
plan (um) flat country)- plan ly, adv. - plain ness, n.
In the Compact Oxford Reference Dictionary
audited by Catherine Soanes the word "Plain" means "1.
simple or ordinary 2. without a pattern 3. unmarked 4. easy
to see or understand.........."
In the Dictionary by Webster the word "plain" means
as follows:
24
"(plein) 1. adj. easy to see or understand simple, not
embellished or complicated absolute, complete, plain
madness (of food) unelaborated, not having unusual or
spicy ingredients bluntly frank unsophisticated lacking
physical beauty, but not ugly 2.n. a large expanse of level,
open country 3. adv. Manifestly, it's just plain wrong
clearly, candidly, she told him plain [KO F. fr.L]”
PANE:
“Webster's Dictionary defines “Pane" as-
Pane - a single sheet of glass in a window, greenhouse etc.
a division of a window etc, containing such a sheet of glass
in a frame a flat side or edge of a many-sided object."
“ Concise Oxford Dictionary defines “Pane" as - a single
sheet of glass in a window or door. 2. A rectangular
division of a chequered pattern etc..”
24. A plain reading of the above definitions would not detain us
for too long to brush aside the contentions of the learned senior
counsel appearing for the appellant-assessee, inasmuch as, “panes”
means glass sheets in small sizes used in doors and windows and they
cannot be treated as glass sheets as panes or made out of glass sheets
by cutting it into different sizes.
25. Yet another contention was raised that commodity remains the
same even after the manufacturing process and applying the said
principle to the product on hand, namely tinted glass sheets would
continue to be the genus of the species namely “plain glass panes” by
relying upon Gujarat Steel Tubes Ltd. V. State of Kerala (1989) 3
25
SCC 127 and Maqsood Mohammad Vs. State of Uttar Pradesh and
Another (1978) 41 STC 324 . Both the Judgments are distinguishable
on facts, and reasoning adopted under the impugned order is just and
proper for reasons more than one; firstly in Gujarat Steel Tubes matter
(supra) it was noticed that the steel tube was galvanized and by virtue
of the same, it did not cease to be a steel tube inasmuch as its
structure or its function is not altered and it remained as a steel tube.
Whereas in the instant case the tinted glass sheet during the process of
manufacture has undergone a change and as noticed by the authorities
it has more radiation absorption capacity and is also different in its
transparency and density than a plain glass sheet or in other words the
commodity did not remain the same after the manufacturing process.
Secondly, in Maqsood Mohammad matter (supra) it was noticed that
after the manufacturing process the product “kala namak” remained as
an edible salt or in other words it was a species of salt and as such it
was held exempted from tax and cannot be taxed under Section 3A of
U.P. Sales Tax Act, 1948. The analogy noted hereinabove to
distinguish Gujarat Steel Tubes Limited (supra) is squarely applicable
to distinguish the principles enunciated in Maqsood Mohammad case,
which was on facts obtained therein.
26
26. When the assessee is contending that an item/product falls
under the residuary category, necessarily the burden is on the assessee
to prove the said fact and in the instant case, the business premises of
the appellant was inspected by Special Investigation Branch of the
Department and it was revealed that “tinted glass sheet” was being
manufactured through a different process. The process so adopted has
been succinctly explained in the Assessment Order to the following
effect:
“An intensive inquiry XXX Rs. 9,47,28, 446.00. In
the inquiry held by Allahabad Unit, this fact has
come to the light that the tinted coloured glass is
manufactured by the trader in a separate unit and
the raw material used in its manufacture is also
different from the raw material used in the
manufacture of sheet glass. That is the raw
materials used in the manufacture of tinted
coloured glass are cobalt oxide, carbon oxide, iron
oxide etc. besides those used in the manufacture of
sheet glass. A specific process is adopted for its
manufacturing. The transparency density of tinted
coloured glass is different from the simple glass
surface. The solar radiation absorption capacity of
tinted coloured glass is more than that of the simple
sheet glass. In ordinary common parlance of the
market the tinted glass is not understood as sheet
glass. Therefore, the plain sheet of tinted coloured
glass cannot be deemed as sheet glass. After
apprising XXX tax liability shall be determined.”
27
In this background, when the contention of Mr. Bagaria, learned
senior counsel, appearing for the appellant contending that “plain
glass panes” would include ‘tinted glass sheet’ is examined, same has
to be rejected as the general meaning of “glassware” could not have
been attached to ‘tinted glass’ sheet or the exclusion would have been
specific in Entry (IV) itself. In our considered opinion, the expression
“all the goods and wares made of glass” occurring in Notification
dated:07.09.1981 must be taken to refer to all articles of glass except
those specifically excluded in the entry itself.
27. It would not be out of context or in other words it would be
apposite to refer to the judgment of this Court in the matter of
Ramavatar Budhaiprasad Etc. Vs. Assistant Sales Tax Officer -
(1962) 1 SCR 279 wherein challenge to the imposition of sales tax on
beetle leaves by the revenue came to be upheld by arriving at a
conclusion that the legislature by using two distinct and different
items that is item 6 “vegetables” item 36 “beetle leaves” had indicated
its intention. It was held that the word “vegetables” in taxing statues is
to be understood as in common parlance that is denoting class of
28
vegetables which are grown in a kitchen garden or in a farm and are
used for the table. It was further held:
“3. The Schedule was amended …………... But this
word must be construed not in any technical sense
nor from the botanical point of view but as
understood in common parlance. It has not been
defined in the Act and being a word of every day us it
must be construed in its popular sense meaning “that
sense which people conversant with the subject-
matter with which the statute is dealing would
attribute to it”. It is to be construed as understood in
th
common language; Craies on Statute Law, p.153 (5
Edn.) . It was so held………………..
28. This Court examined in M/s. Indo International Industries vs
Commissioner of Sales Tax, Uttar Pradesh (1981) 2 SCC 528 almost
similar issue namely whether hypodermic clinical syringes could be
regarded as “glass ware” under Entry 39 of First Schedule of UP Sales
Tax Act, 1948 and negatived the plea of the assessee by opining that
in taxing statues, words and phrases must be construed as understood
in popular or commercial parlance and not technically. It came to be
further held:
“5. Having regard to the aforesaid well settled test the
question is whether clinical syringes could be regarded as
“glassware” falling within Entry 39 of the First Schedule
to the Act? It is true that the dictionary meaning of the
expression “glassware” is “articles made of glass”
(see Webster's New World Dictionary). However, in
commercial sense glass ware would never comprise
articles like clinical syringes, thermometers, lactometers,
and the like which have specialised significance and utility.
In popular or commercial parlance a general merchant
29
dealing in “glassware” does not ordinarily deal in articles
like clinical syringes, thermometers, lactometers, etc.
which articles though made of glass, are normally
available in medical stores or with the manufacturers
thereof like the assessee. It is equally unlikely that
consumer would ask for such articles from a glass ware
shop. In popular sense when one talks of glass ware such
specialised articles like clinical syringes, thermometers,
lactometers and the like do not come up to one's mind.
Applying the aforesaid test, therefore, we are clearly of the
view that the clinical syringes which the assessee
manufactures and sells cannot be considered as “glass
ware” falling within Entry 39 of the First Schedule of the
Act.”
29. In the aforesaid background, we are of the considered view
that neither the dictionary meaning nor the common parlance theory
would come to the rescue of the appellant. The arguments canvassed
by the learned senior counsel with regard to flat transparent sheet
glass as indicated in the Indian Standards Specification has also
received the attention of the High Court and has been dealt with under
the impugned order and distinguished it on facts in favour of the
revenue, and rightly so, for the reasons indicated thereunder which we
are of the considered view is in tune with the settled principles of law
noted hereinabove and thereby impugned order does not call for our
interference.
30
30. There is no vagueness in the notification dated 07.09.1981 and
the entry No. 4 is clear and unambiguous namely it has brought within
the sweep “all goods and wares made of glass” exigible to tax but not
including “plain glass panes” and the exemption being the creation of
the statute itself, it has to be construed strictly and even if there is any
vagueness in the exemption clause must go to the benefit of the
revenue. [(2018) 9 SCC 1 paras 36 to 38]
31. For the reasons indicated hereinabove, we are of the
considered view that the impugned judgments would not call for
interference and accordingly the appeals are dismissed. The notice for
reassessment dated 08.02.2001 issued in Civil Appeal No.5914 of
2023 (Special Leave Petition(c) No.29516 of 2013) for the assessment
years 1992-93 to 1996-97 is upheld. No order as to costs.
.……………………….J.
(S. Ravindra Bhat)
…………………..……J.
(Aravind Kumar)
New Delhi,
October 09, 2023