B.P. Jeevan Reddy and; S.P. Bharucha, JJ.
1. The appeal is filed against the judgment and order of a Division Bench of the High Court of Karnataka whereby it was held that French polish falls within Item 97 of the Second Schedule of the Karnataka Sales Tax Act, 1957 which at the relevant time read thus: “Paints, colours, dyes and varnishes... 6%”.
2. The appellant deals in French polish. The Commercial Tax Officer treated French polish as varnish under Item 97. The Deputy Commissioner of Commercial Taxes, in appeal, found that in the market French polish was sold as a different entity than varnish and colours and that it was a well-known fact that French polish was a distinct entity other than colours. He, accordingly, held that French polish fell outside Item 97. The Karnataka Sales Tax Appellate Tribunal, before whom the Sales Tax Authorities carried the matter, reversed the finding of the Deputy Commissioner of Commercial Taxes. The appellant went in revision to the High Court which, in its judgment, quoted Webster's New Dictionary and held that it was common ground that French polish was shellac dissolved in alcohol and that, therefore, it was clear that French polish was a spirit varnish and as such within Item 97.
3. The judgment of the High Court is assailed before us on the ground that reference to dictionaries was unsafe and that what was really relevant was the meaning in common parlance of the expression “French polish”. It was also contended that the Deputy Commissioner of Commercial Taxes having held that French polish was sold in the market as a different entity than varnish and colours and that finding not having been disturbed, the High Court ought to have held that French polish fell outside the scope of Item 97.
4. There can be no doubt that the test that ought to be ordinarily applied in such cases is: how is the product identified by the class or section of people dealing with or using the product. It was certainly possible for the appellant, who is a dealer in French polish, to have placed before the authorities evidence to show how the expression “French polish” was understood in the trade and in common parlance. No such effort was made. The finding of the Deputy Commissioner of Commercial Taxes was based upon no evidence whatever and we cannot subscribe to his observation that it is a “well-known fact that the French polish is a distinct entity than the colours and varnishes”. Having regard to the lack of such evidence, the Tribunal and the High Court referred to well-known publications to ascertain what exactly French polish was and, having ascertained this, came to the conclusion, in our view, rightly, that French polish was a varnish and, accordingly, within the scope of Item 97.
5. That Item 97 was subsequently amended to include ‘polish’ does not ipso facto lead to the conclusion that, prior to the amendment, French polish fell outside it.
6. The appeal is dismissed. There shall be no order as to costs.