Commissioner of Sales Tax Vs. Fateh Chand Mahajan - Court Judgment

Satish Chandra, J.

1. The assessee is a dealer in sports goods including sports shoes. The distinctive feature of the shoes dealt in by the assessee is that the soles of some are fitted with spikes while others have studs fitted to the soles. These shoes are exclusively used for sports.

2. In his return for the assessment year 1968-69 under the Central Sales Tax Act the assessee showed a turnover of such shoes at Rs. 76,233 taxable as an unclassified item at 2 per cent. According to him, these shoes were sports goods, and since there was no such specific category, they were taxable as an unclassified item.

3. The Sales Tax Officer did not accept this plea. He held that the turnover of shoes came within the entry 'footwear' in the notification dated 1st October, 1965. Since the assessee did not furnish the declaration in C form, this turnover was taxable at 10 per cent. This view was upheld in appeal.

4. The assessee went up in revision. The Judge (Revisions) held that sports shoes were not used as ordinary shoes. They were specially made and designed for a particular purpose, that is, for sports. On this finding the revision was allowed. At the instance of the Commissioner, the revising authority has submitted this statement of the case for the opinion of this court on the following question of law :

Whether, on the facts and circumstances of the case, 'sports shoes' are included in 'footwear' of item No. 2 of Notification No. ST-7097/X- 1012-1965 dated 1st October, 1965.

5. The notification dated 1st October, 1965, has an entry 'footwear'. There is no other entry in any other notification dealing with shoes of any particular kind, including shoes that are usually worn by sportsmen while participating in sports, like hockey, football, cricket or athletics. If the shoes in question reasonably fall within the purview of the entry 'footwear' they will be taxable thereunder, and would ipso facto be excluded from the residuary entry, 'unclassified item'.

6. In Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola [1061] 12 S.T.C. 286 (S.C.), the Supreme Court held that the names of articles, the sale and purchase of which are liable to be taxed under any statute, unless defined in the statute, must be construed not in a technical sense but as understood in common parlance. In that case the question was whether the word 'vegetable' included betel leaves. The Supreme Court held that 'vegetable' is a word of everyday use ; it has not been defined in the Act and it must be construed in a popular sense, meaning that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it.

7. In Savin Chemical Laboratory v. Commissioner of Sales Tax [1970] 26 S.T.C. 339 (S.C.), the Supreme Court reaffirmed this principle and held that in common parlance tooth-powder is considered as a toilet, and that accords with the dictionary meaning as well.

8. In Commissioner, Sales Tax, M.P. v. Jaswant Singh Charan Singh [1967] 19 S.T.C. 469 (S.C.), the Supreme Court held :

A sales tax statute, being one levying a tax on goods, must, in the absence of a technical term or a term of science or art, be presumed to have used an ordinary term as coal according to the meaning ascribed to it in common parlance. Viewed from that angle both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include 'charcoal' in the term 'coal'. It is only when the question of the kind or variety of coal would arise that a distinction would be made between coal and charcoal; otherwise, both of them would in ordinary parlance as also in their commercial sense be spoken as coal.

9. Following this principle a Bench of this Court in Commissioner, Sales Tax v. Mango Mai Nanak Ram 1974 U.P.T.C. 259, held that in common parlance and in commercial sense the word 'cement' would include all varieties of cement, that unless the legislature makes a distinction between different varieties of cement, the word 'cement' by itself would include all kinds and varieties of cement, and that white cement is only a variety of cement and taxable as such.

Footwear' has been defined by Webster's Third International Dictionary, Vol. 11, page 886, as wearing apparel for the feet (as shoes, t boots, slippers, overshoes) usually excluding hosiery.

10. In Encyclopaedia Britannica, 1968 edition. Vol. 20, page 435, under the heading 'Shoes' it has been stated, 'shoes and boots, worn as protective footwear, are ancient items of dress.'

11. At page 437 reference has been made to footwear industry. This industry caters to all possible kinds of wearing apparel for the feet or protective footwear called shoes. It has been mentioned that shoes and boots are made of leather, like calf, kid, suede, patent leather. Shoes are also made from linen, satin and silk. Another modern development has been coated fabrics, consisting of a fabric base coated with a chemical surface finish to give a vast variety of textures and designs, many of them simulating leather grains to a remarkable degree. These find wide use in less expensive shoes, especially in women's and girls' footwear. Nylon mesh and nylon velvet as well as synthetic patent and suede is also produced for shoes.

12. Under the sub-heading 'Styling and Design' it has been stated :

Many kinds of footwear-men's work shoes, oxfords, and riding boots, for example-remain essentially unchanged from year to year, but in other types fashion plays a considerable role.... In the U. S. it is estimated that more than 1,00,000 new sample styles are prepared annually by the manufacturers.... Most manufacturers design their lines twice yearly, for spring, summer and fall-winter. Some designing is done for one brief season, such as summer or for resort-cruise wear. The greatest demand for variety of style is in women's shoes followed by men's and girls' shoes.' It has also been stated that calf is the luxury leather used in the finest grade of men's and women's shoes. Side leather is the most versatile of all shoe leathers. It comes in several grades and is used for a great variety of footwear-women's lightweight casual footwear, children's school shoes and other kinds. Kid leather has wide use in women's high grade dress shoes and men's comfort shoes. Sheep-skin is used largely in slippers and linings. Reptile leathers (alligator, lizard and snake) are used in some women's and few men's shoes.

13. Under the heading 'Retailing and Marketing' relating to the footwear industry, it has been stated that slightly over half of the shoes manufactured by the industry are sold through shoe stores and the rest are distributed through various types of retail establishments-department stores, mail-order and variety store chains, clothing stores, general merchandise stores, discount houses and even drug stores.

14. It has also been stated that in the United States about 47 per cent of all shoes manufactured are women's shoes. The remainder consists of men's shoes : 17 per cent, children's shoes : 23 per cent, slippers : 12 per cent, athletic and other specialised types : 1 per cent.

15. It is thus apparent that footwear is an industry, catering to the manufacture of all varieties of shoes and protective footwear. This industry produces shoes, called athletic shoes or sports shoes. There are hundreds of varieties of shoes, catering to diverse tastes, different occasions and special events. Nonetheless, all these varieties or kinds of shoes are protective footwear. In common parlance footwear is known as wearing apparel for the feet and that accords with the dictionary meaning as well.

16. The fact that the shoes in question are used by sportsmen at the sports field does not make them anything other than shoes. They are a variety of footwear.

17. Footwear is a genus, having a large number of species depending upon the specific use to which a particular variety of shoe may be put. When the notification used the generic term 'footwear', it would include all varieties and kinds of footwear within its purview. The legislature has not made any distinction between the diverse varieties of footwear. The term 'footwear' by itself will include all kinds and varieties of shoes.

18. For the assessee our attention was invited to Imperial Surgico Industries, Lucknow v. Commissioner, Sales Tax [1969] 23 S.T.C. 201. In that case this court construed the term 'furniture' occurring in a notification issued under Section 3-A of the U. P. Sales Tax Act. The Bench observed that the list of items mentioned in the notification should be construed according to the understanding popular in the community. In common parlance furniture are articles which supply the daily conveniences of the common man in relation to the place where he lives, like chairs, tables, beds, etc. The articles in question in that case were bedside lockers, dressing carriages, instrument cabinets, revolving stools, instrument trollies, instrument tables, self-propelling chairs, fowler beds, etc. The Bench held that in the commercial world these articles are generally described as hospital equipment. Their normal use is not as household furniture. The fact that their design and equipment does not preclude them from being used as furniture was not the correct test. This was not the generally accepted sense of the articles in question. This case is not applicable. Here we are dealing with footwear, which is a term of very wide sweep. It includes all kinds of shoes, including those which may be used on particular occasions or events. Simply because one variety of shoe is generally sold by a dealer in sports goods it will not go outside the purview of the entry 'footwear'. Even if it be assumed that since this variety of shoes is used by sportsmen and so are generally kept and sold by dealers in sports goods, yet since there is no specific category called sports goods in any notification, sports shoes would remain footwear and would be taxed as such.

19. In the result our answer to the question referred to us is in the affirmative, in favour of the department and against the assessee. The Commissioner will be entitled to costs which are assessed at Rs. 100.