1. The instant application in R.N. No. 127 of 1997 was heard along with case Nos. 128 and 139 of 1997 because identical issues were involved in all these cases.
2. In case No. R.N. 127 of 1997, Neo-Technico (Graphic) Sales Pvt.
Ltd., the applicant, challenges the legality of seizure of 8 boxes of pre-sensitised plates (in short, P.S. plates). The applicant is a reseller of P.S. plates since 1982. In course of business it placed an order with Nulith Graphic Pvt. Ltd., Mumbai, for supply of 700 numbers of P.S. plates. When the truck carrying the said quantity of P.S.plates, contained in 8 boxes, reached Chichira check-post on April 19, 1997 the respondent No. 1, Inspector of Commercial Taxes of the check-post, demanded from the driver of the truck the sales tax permit for P.S. plates and allowed 24 hours' time for production of such permit. On April 20, 1997 the respondent No. 1 seized the 8 boxes of plates on the ground that on physical verification the plates in question were found to be aluminium plates, which being specified goods included in Part A of Schedule IV of the West Bengal Sales Tax Act, 1994 required S.T. permit for importation from outside West Bengal.
Thereafter, the driver was served with a notice to show cause why penalty under Section 71 would not be imposed. It is the applicant's case that P.S. plates are manufactured by subjecting aluminium coils to micro-graining and micro-finishing processes and to various other chemical processing and eventual imparting on it a layer of photo sensitive coating. Its further case is that the finished product is a commodity altogether different from the aluminium plate, a specified goods, and for that matter, it (P.S. plate) is a general goods not requiring any permit for importation from outside West Bengal. The applicant's further contention is that since the commencement of its business there was never any demand of permit by the check-post authorities on any earlier occasion of importation of P.S. plates.
Moreover, as against a clarification sought for by Technico, a sister concern of the applicant, the Commissioner of Commercial Taxes (respondent No. 3) communicated in writing that P.S. Plates not being notified goods no permit was necessary for importation of such plates.
The applicant asserts that such information simply confirmed the position that no permit was necessary for importation of P.S. plates.
The applicant, therefore, prays, inter alia, for quashing seizure on the ground of its illegality, for release of seized P.S. plates and for restraining the respondents from giving effect to the show cause notice under Section 71 of the 1994 Act.
3. Similarly, case No. R.N. 139 of 1997 has been filed by N.K. Gossain & Co. (P) Ltd., challenging the seizure of 5 boxes of P.S. plates on April 18, 1997 at the same check-post and also challenging the validity of notice under Section 71.
4. R.N. 128 of 1997 is in connection with the seizure of 4 boxes of microlith sheets on April 20, 1997 at the said check-post. Technico, a partnership firm, is the applicant. It is not in dispute that microlith sheets are used for the purposes identical to that of P.S plates by the printing presses and newspapers. The contents of the literature and the certificates issued by different printers, annexed to the affidavit-in-reply, bear the testimony on the point. Therefore, the findings in regard to the P.S. plates will squarely apply to microlith sheets.
affidavit-in-opposition filed in R.N. 127 of 1997 is that the 8 boxes which the truck No. WB-23-4767 was carrying were found on physical verification to be aluminium plates which are specified items mentioned in Part A of Schedule IV of the 1994 Act and hence for importation of such goods into West Bengal a permit must be obtained. According to the respondents, the seizure dated April 20, 1997 was validly made under Section 70 of the 1994 Act because the driver failed to produce any S.T. permit even after he was given 24 hours' time for such production.
The respondents further aver that use of P.S. plates in the printing industry cannot negate the fact that these are aluminium plates and as such come within the fold of Schedule IV. The respondents have set up identical pleas in the other two cases.
6. The decision in the instant cases hinges on the issue whether the special treatment to which the aluminium coils are subjected converts the end-product altogether to a new commercial commodity or if the product can still be considered aluminium articles within the meaning of entry No. 3 in Part A of Schedule IV of the 1994 Act.
7. Before we take up disquisition into controversy, we quote below the entry No. 3 of Part A of Schedule IV : "3. Aluminium in all its forms, namely, aluminium ingots, slabs, bars, rods, pipes, tubes, wires, coils, sheets, plates, circles, Sections, channels, angles, joints, extrusions, but excluding aluminium foils." 8. Shri J.K. Goswami, learned State Representative, contends that the plates in question are basically aluminium plates though one surface of it contains some coating which according to the applicant is photo sensitised. According to him, an aluminium plate because of a layer of coating does not cease to be aluminium plate and the comprehensive nature of entry No. 3 of Part A of Schedule IV brings under its sweep any aluminium plate despite any special coating on its surface. But Mr.
S.K. Chakraborty, learned Advocate for the applicant, disputes such contention on the ground that Shri Goswami's plea is an over-simplification of a problem which requires a deeper probe.
According to him, the mere physical appearance of the concerned goods will not decide the issue and classification of goods in the context of a taxing statute should be made according to the general usage and known denomination of the trade.
9. We have considered the contention of the sides and are of the opinion that within the scheme of 1994 Act the expression "aluminium in all its forms" as appearing in entry No. 3 of Part A of Schedule IV is not so comprehensive as to cover all articles made of aluminium irrespective of their denomination in the common parlance or their specific use as distinct commercial commodities. Inclusion of (1) "bangles made of aluminium" in entry No. 11 in Schedule I, (2) of "furniture, almirahs and safes, made wholly or principally of aluminium....." In entry No. 34 of Part A of Schedule IV and of (3) "wares of all varieties arid descriptions other than pressure cooker and pressure pan made mainly or solely from aluminium" in entry No. 82 of the same part of Schedule IV shows that there are articles made of aluminium which do not come within the fold of the so-called comprehensive expression "aluminium in all its forms" as appearing in entry No. 3 of Part A of Schedule IV.10. It is pertinent to mention that unless the concerned fiscal statute gives an express definition of an article, in attributing the meanings to the article for the purpose of classification under the fiscal statute, resort must be had to the position as to how people in trade and commerce, conversant with the article, generally treat and understand the article in usual course. The Supreme Court and various High Courts time and again in their decisions have enunciated this position. A quotation, as given below from the judgment of the Supreme Court in the case of Indo International Industries v. Commissioner of Sales Tax, Uttar Pradesh [1981] 47 STC 359, will make the position clear : "It is well-settled that in interpreting items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances, resort should be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them." 11. We shall now see how far in the above perspective a P.S. plate can be logically classified with the items enumerated in entry No. 3 of Part A of Schedule IV, viz., aluminium ingots, slabs, bars, rods, etc.
It is true that barring the photo sensitised coating on one surface, the P.S. plate in its bulk is an aluminium plate ; but it is the photo sensitised layer that makes all the difference, giving an exclusive character to the P.S. plates. The pictorial literature appended to the application gives the sectional diagram of P.S. plate showing how stacking of layers over an aluminium plate creates the photo sensitive coating. Page 6 of the affidavit-in-reply is a literature relating to pre-sensitised plates. The first part of it contains an introductory information about P.S. plate and runs thus : "It is an anodised positive plate for sheet-fed and web off-set presses. The plate is intended for medium to long runs.
The base material is uniformly grained and hard anodised, as well as resistant to cracking. These properties ensure minimal water requirement, good contrast after exposure and development, high corrosion and abrasion resistance of the non-image areas and exceptionally high resistance to toning. On exposure the colour of P.S. coating changes, this produces a clearly visible image and excellent contrast, after development. Coating and base are designed to avoid under-cutting and halation. The light sensitivity of the plate is designed to provide large exposure latitude. Finally, the ink receptivity is remarkable." 12. It is not difficult to discern from this literature that a P.S.plate is akin to a photographic plate in view of the photo sensitive coating which is capable of retaining impression of a picture or writing when exposed to such picture or writing under a special type of light and developed with the help of chemicals. This plate is capable of retaining the impression of image/writings and when inked and used in printing press is capable of imparting the image/writings on a paper. The P.S. plates are used by the newspapers and the printing presses. Thus, in its use and utility a P.S. plate is poles as under from the class of goods enumerated in entry No. 3 of Part A of Schedule IV. From a trading point of view no dealer dealing in items enumerated in entry No. 3 is expected to store for sale of a P.S. plate, an item having exclusive use in the printing presses. Similarly, a person interested to purchase aluminium plates as such will not purchase P.S.plates nor will a person in requirement of P.S. plates for its specific use would think of purchasing ordinary aluminium plates. The principles laid down by the Supreme Court in the case of Royal Hatcheries Pvt.
Ltd. v. State of Andhra Pradesh [1994] 92 STC 239 ; (1994) 53 ECR 200 will provide the guideline in deciding the case of the nature as is before us. In the said case the Supreme Court was called upon to decide if one day-old chicks can be considered to be covered by the expression "live-stock, that is to say, all domestic animals such as oxen, bulls, cows, buffaloes, goats, sheeps, horses, etc.". The court propounded that in interpreting expressions occurring in sales tax enactments these must be understood in their popular sense, i.e., in the sense of which "people conversant with the subject-matter with which the statute is dealing would attribute to it". The court, therefore, held that in popular and common parlance, day-old chick--or for that matter, chicks--are not referred to or understood as animals, "though in its literal sense the word "animal" refers to every "animate" object as distinct from "inanimate objects". In giving further illustration the court has observed as follows : "Diamonds are stones, so are there several semi-precious stones used in carving in marble. They are referred to as precious or semi-precious stones. When one speaks of stones, one does not mean to include the precious and semi-precious stones therein--unless, of course, the context drives one to do so." 13. Here, in our case also in the trade parlance nobody will think of an aluminium plate while in need of P.S. plates. During the argument Shri Chakraborty, has mentioned that a square-inch of P.S. plate costs 14 paise, whereas one square-inch of aluminium plate having the same thickness is available at 5 paise. This assertion has not been disputed on behalf of the respondents. Sri Chakraborty adds that an intending purchaser of an ordinary aluminium plate would not pay thrice the price for the photo sensitive layer which has absolutely no utility for him in the matter of use of aluminium plate as such. Shri Chakraborty has mentioned that installation of a P.S. plate manufacturing unit involves a huge expenditure. One can hardly miss to note that aluminium plate is used as a base material but the process to which the same is subjected converts it into altogether a different commercial commodity having a special field of use. We are, therefore, of the opinion that P.S. plate cannot be a commodity coming within the sweep of entry No. 3 of Part A of Schedule IV. Since P.S. plate does not come under any other entry relating to notified goods, there is no question of obtaining sales tax permit for its importation from outside West Bengal.
14. The applications, thus, succeed. The impugned seizures of the three consignments which are the subject-matters of these three applications are set aside. It is declared that P.S. plates and microlith sheets are commercial commodities altogether different from aluminium plates. The release order passed by this Tribunal on May 7, 1997 and May 16, 1997 in the three cases are made absolute. The respondents shall not proceed further with notices in form 44 issued against the applicants of these three cases. The penalty proceeding if any, started against any of these three applicants in respect of the disputed consignments shall stand quashed. This judgment applies to all the three cases, viz. R.N.Nos. 127, 128 and 139 of 1997. We make no order as to costs.