K. Sukumaran, J.
1. Modern Bakeries (India) Limited made a daring debut in food industry. It gave to the consumer in neat and attractive packets its branded bread rich in nutrients and vitamins. Even the slicing had been done enabling an easy gulping or a quick enough toasting. With the development of the market for its products, it took to other items as well. Variety has its attractions whether it be in food, fabric or fashion. Bun was yet another product. It was placed on a par with the bread to all intents and purposes. It was so treated even by the Government initially. Later came a revision of its view by the Government. Bun is not bread but only a bakery product--was the new view taken by the Government. That view was expressed under an enabling power which the Government got under the amended Act of 1978--Section 59A. The change of view had serious impact on the fiscal position of the petitioner. It agitated its grievances along the hierarchy of statutory authorities. Even the Tribunal felt impelled to follow the directive of the Government under Section 59A. Relief was therefore elusive for the petitioner. The final knock was at the court's door.
2. Elaborate contentions of the petitioner on the factual front, and on the legal aspects were successfully presented to us by the petitioner's counsel Smt. S.K.Devi. We have already pronounced on the constitutionality of the section in our decision in O.P. Nos. 2300, 5082, 6130 of 1985, etc. The section has been struck down as violative of Article 14 and for the reasons stated therein.
3. Deference to the detailed arguments presented to us on the alternate submission--whether bun is bread--prompts us pronounce on that question as well. When the question arises and has been well argued, court shall not ordinarily shirk a decision, the exactions involved in the process notwithstanding.
4. The court has been assisted with cogent details on technical aspects by appropriate averments contained in the original petition. An additional affidavit was filed after the commencement of the hearing of the cases. Though two of the writ petitions have been filed in 1985 and one in 1987, the Taxes Department has shown criminal negligence in the conduct of the cases. No one in that department showed a little of responsibility to the State and to the people in the discharge of his duty. The pendency of the cases for five years, was not sufficient for the money collectors to present their version to the court of law when called upon to do so ! Make-believe arrangement of filing a counter-affidavit, technically, has been attempted. In relation to the averments regarding bun, bread and bakery products, the counter-affidavit gives the views of the Government on sandalwood oil and such other things ! Repeated directives of the court to restructure the functioning of this department, at any rate in relation to the conduct of the cases before the court, have fallen on deaf ears and on indifferent minds. These difficulties notwithstanding, the court has to perform its duty.
5. Undisputed facts may be set out at the outset. For the purpose of these cases, history need be traced only from 1963 when the Kerala General Sales Tax Act, 1963, came into force. 'Bread' figures in item 14 of Schedule III of the Act. A conjoint reading of Section 9 with that Schedule brings about the result that the sales are exempt from taxation. The position continued as such up to September 15, 1980.
6. The petitioners submitted a representation on May 11, 1981 to the Government seeking a clarification regarding the rate of tax payable on bun produced and sold by the petitioners. The Government took the view that bun was a general item liable to levy of tax at 4 per cent multi-point prior to September 16, 1980 and came under entry 9 of that Schedule after the Amendment Act of 1980 (Act 19 of 1980) which came into force on September 16, 1980. An order issuing the clarification and invoking Section 59A was published as G.O. (Rt.) No. 408/82/TD dated July 5, 1982.
7. As noted earlier, the taxing authorities and the Tribunal felt bound by the clarification issued by the State in the exercise of this newly conferred statutory power.
8. The material averments regarding the composition and components of the product, manufacturing process involved, and the sale pattern employed, uncontradicted by any counter-affidavit as matters now stand, may be summarised as follows :
9. The material averments, according to the petitioners, are :
'Bun is really bread in a different shape. The ingredients or raw materials of bread and bun are the same, the process of manufacture is the same, and the commercial identity is the same. Bread itself is manufactured and marketed in different shapes with differing qualities, as loaves, rolls, brown bread, sweet bread, etc. The ingredients of bread and bun are same, viz., maida, sugar, salt, fat, yeast, GMS, vitamins, premix, potassium bromate, acetic acid and calcium propionate. The process of manufacture is also identical. In the case of both bun and bread the various steps and stages in manufacture are mixing raw materials fermenting, remixing, dividing, rounding and moulding, pruning, baking, cooling and packing.'
It is emphasised that bread is manufactured and marketed in different names and forms to suit the tastes and requirements of the consumers.
10. Further factual details about the components and the process have been given in the additional affidavit dated July 30, 1990. It is stated :
'The ingredients of bread and bun are maida, sugar, salt, fat, yeast, glycerine mono stala, vitamin premix, potassium bromate, acetic acid and calcium propionate. The manufacturing process is also the same. The flour is sifted and the raw materials are mixed with water to form a dough. It is then fermented and remixed. The remixed dough is allowed a short resting period before it is divided to form each bread or bun. It is then rounded, moulded, panned, pruned to the required volume and baked. The baked bread is cooled to room temperature and sliced and packed. The cooled bun is directly packed without slicing. In bun the percentage of yeast is more than bread.'
The variety of the breads made and sold by the petitioners is reflected in the enumeration : 'White bread, sweet bread, Kairali special, milk bread and fruity'. The ingredients are virtually the same with marginal difference in their percentage. Bun contains more of yeast. Additional ingredients are there in milk bread and in fruity. A document--daily production and raw material control report--has been produced along with the affidavit to demonstrate the ingredients of each variety of bread and bun. That statement confirms the correctness of the allegations of the petitioner.
11. The question has been considered by this Court and by a Division Bench earlier, when the identical question came up for consideration by the court after the collection and collation of factual and technical details by the taxing authorities and the Tribunal. The court held that bun would be taken in by the entry 'bread' occurring in entry 14. The decision was rendered by Chief Justice Bhaskaran and Justice V. Bhaskaran Nambiar. (Vide T.R.C. No. 50 of 1985 dated July 19, 1985). The State took up the matter by way of special leave to the Honourable Supreme Court of India [S.L.P. (Civil) No. 1539 of 1986]. The Supreme Court was disinclined to disturb the finding of this Court. A binding decision of this Court, therefore, gives the answer to the question posed. The decision was rendered by Judges with intimate nexus with a centre noted for its bakery expertise, Tellicherry. (Such intimacy with the background area or essential activity connected with the determination of a question had been reckoned as additionally advantageous factors in reaching a decision). After considering various aspects, we do not see any reason to differ from the ratio of the decision or to dissent from the reasons forming the basis of the decision.
12. A cognate question arose in a neighbouring State of Andhra Pradesh. Whether what is termed as 'double rotti' would come within the meaning of bread, was the question considered. The High Court of Andhra Pradesh held that it would.
13. Bread was a part of the food routine in the western countries. Sociological and political controversies reached a high pitch about the basic ingredient : Corn laws of England and the plea for their repeal--a catchy slogan of the days was : 'Peel, repeal'. When days of scarcity were apprehended or had become realities, the legislation used to step in for the equitable distribution of bread as a scarce commodity. The legal provisions necessarily gave scope for much of legal discussions. Courts were invited to pronounce on the question. Decisions rendered under diverse enactments relating to bread and food, have been discussed with reference to the questions involving the scope and amplitude of the word 'bread'. When regulation of the distribution is enforced, or when a rationing is introduced and implemented with meticulous care, there are bound to be legal disputations and judicial decisions. The logic and the reasoning in those cases may furnish useful insight into the thought-processes on the allied question. The decisions unravel the existence of a near identity of bun with bread. [See Queen v. Wood (1869) LR 4 QB 559 ; 38 LJMC 144, Aerated Bread Co. v. Gregg (1873) LR 8 QB 355 and Bailey v. Barsby (1909) 2 KB 610].
14. Quite often, courts commend a common sense view or the housewife's understanding in relation to the interpretation of a word or term. Plenteous illustrations are available. Enumeration of all of them is unnecessary. Some may be, however, alluded to, to make the point clearer.
15. Even a casual acquaintance with life and literature may bring about the findings of close observations. All are eager to have their daily bread, the hardened and materialist and the devout religionist. No one would grudge if bun is given in the place of bread. 'The Word Origins and Their Romantic Stories' by Wilfred Funk created an atmosphere surcharged with the aroma of loaf and of bread. It reads :
'If you had gone into an English bakery around 700 A.D. and had asked for a loaf of bread, the clerk wouldn't have known what you were talking about. Our word loaf then meant bread, and their word bread meant 'a little piece', 'a fragment'. So when you spoke of a loaf of bread, the clerk would have understood you to have said 'a bread of fragments', than which nothing could have sounded sillier. Finally, however, bread came to mean 'a piece of bread' ; later 'broken bread' ; and in the end bread and loaf took on their present meanings.'
(See 'The Word Origins and Their Romantic Stories', page 166)
Omarkayam sang those erotic lines :
'A jug of wine, a loaf of bread.....'
Bun would have served the same purpose. It is said that man does not live by bread alone. The strength of the statement will not be diluted or detracted from, if bun is substituted for bread. Some, born with silver spoons, could indulge in the luxury of having their bread buttered on both sides. That exercise can be done with bun also. The Bible makes a solemn statement :
'Stolen waters are sweet and bread eaten in secret is pleasant.'
The pleasure will not be diminished if, in the place of bread, bun is stolen. Lady Dufferin wrote the lines (in praise of Ireland) :
'They say there's bread, and work for all,
And the sun shines always there :..............'
Irish bun is as good as the bread baked there. Burke brought out his thoughts and details of scarcity as follows :
'And having looked to Government for bread, on the very first scarcity they will turn and bite the hand that fed them.'
The statement will have equal efficacy by a substitution of bun for bread. That is so even in the lines of Lewis Carroll :
' 'A loaf of bread', the Walrus said,
'Is what we chiefly need :..........''
So also is the case with Kipling :
'I have eaten your bread and salt,
There does not appear to be any violence in attempting similar substitution whether it be in the hymns of common prayer ('Wine that maketh glad the heart of man :.... and bread to strengthen man's heart.') or in the Shakespearian lines ('Eating the bitter bread of banishment'). The lengthening of the list would be awfully wearisome when the point is demonstrated almost convincingly.
At the end of the discussion, we come to the conclusion that bun would rightly come under the category of 'bread' occurring in entry No. 14. It could be taxable only as coming under that item. The Notification G.O. Rt. No. 408/82/TD dated July 5, 1982, containing contrary declarations are unsustainable. The petitioner will be entitled to resultant benefits. It is accordingly quashed. The original petitions to that extent will stand allowed. We do not make any order as to costs.