Commissioner of Sales Tax Vs. Bombay Glass House - Court Judgment

Excerpt:
- indian penal code, 1890.sections 307 & 324: [lokeshwar singh panta & b.sudershan reddy,jj] assault proof - appellant allegedly dealt sickle blow to deceased - testimony of eye-witnesses showed that sudden altercation ensued between appellant and deceased - no evidence to indicate any previous enmity between parties - single blow of sickle had been inflicted by appellant on back of deceased - incised wound allegedly inflicted by appellant - however opinion of doctor proved that deceased had not died due to direct result of said injury held, appellant is therefore liable to be convicted under section 324 of i.p.c., sentence of 3 years imprisonment reduced to period undergone by appellant considering mental agony suffered by him - 381-ii/75 held that glass sheet is a raw material which.....orderp.d. mulye, j. 1. this order shall also govern the disposal of misc. civil case no. 195 of 1983 (commissioner of sales tax, m.p. v. bombay glass house, ujjain). both these references, which arise between the same parties are made by the tribunal (board of revenue) at the instance of the department for the opinion of this court on the following common question of law:whether, in the facts and circumstances of the case, glass sheets will be assessed to tax under entry no. 1 of part vi of schedule ii appended to the m.p. general sales tax act, 1958, and not under entry no. 26 of part ii of schedule ii? 2. the facts giving rise to these references as per the statement of case received, may be stated, in brief, thus: the period relates for the assessment year 1974-75 and for the.....

Judgment:
ORDER

P.D. Mulye, J.

1. This order shall also govern the disposal of Misc. Civil Case No. 195 of 1983 (Commissioner of Sales Tax, M.P. v. Bombay Glass House, Ujjain). Both these references, which arise between the same parties are made by the Tribunal (Board of Revenue) at the instance of the department for the opinion of this Court on the following common question of law:

Whether, in the facts and circumstances of the case, glass sheets will be assessed to tax under entry No. 1 of Part VI of Schedule II appended to the M.P. General Sales Tax Act, 1958, and not under entry No. 26 of Part II of Schedule II?

2. The facts giving rise to these references as per the statement of case received, may be stated, in brief, thus: The period relates for the assessment year 1974-75 and for the assessment year 1976-76. The non-applicants-assessee are dealers carrying on the business of sale of glass, rubber, plastic and aluminium goods. In the relevant years the assessee sold glass sheets also. They were assessed to tax under the prevailing relevant entry No. 26 of Part II of Schedule II of the said Act at the rate of 12 per cent, whereas the contention of the assessee before the assessing authority as also before the appellate authority was that they had effected sale of plain glass sheets and, therefore, should be assessed under the residuary entry which up to July, 1974, was at the rate of 8 per cent and from August, 1974, it was 10 per cent. According to the non-applicants-assessee glass sheet is a product from glass and, therefore, it could not be taxed under entry No. 26 of Part II of Schedule II.

3. The assessing authority rejected the assessee's contention and tax was levied under entry No. 26 of Part II of Schedule II of the Act. On an appeal being filed, the first appellate authority confirmed the order of the assessing authority holding that glass sheets were goods made of glass and, therefore, were assessable to tax under entry No. 26 of Part II of Schedule II of the said Act.

4. The assessee went up in further appeal before the Tribunal, which relying on a Division Bench decision of the Tribunal in the case of Bharat Glass House, Ratlam v. Commissioner of Sales Tax in Appeal No. 381-II/75 held that glass sheet is a raw material which may be used for the manufacture of new goods like manufacturing acquaria, or lens or a looking glass, etc., and it is these manufactured articles which would be regarded as 'goods made of glass' and not the sheet glass which in popular parlance is the raw material for production of goods made of glass, and therefore, accepted the contention of the assessee that they should have been assessed under the residuary article at the rate of eight per cent. Hence these references,

5. It is not in dispute that by the amending Act No. 20 of 1972, for the period 1st August, 1972, to 25th March, 1975, entry No. 26 read as under:

All types of crockery and goods made of glass and glassware, on which tax was levied at ten per cent.

and for the subsequent period 26th March, 1975, to 30th September, 1978, entry No. 26 read as under:

All types of crockery, goods made of glass and glassware, but excluding glass chimneys of hurricane lanterns and kerosene lamps.

6. From the relevant assessment orders it is not in dispute that the non-applicants-assessee deal in glass, rubber, plastic and aluminium goods and that he has also been selling glass sheets. In the decision reported in [1965] 6 STC 136 (Nag) (Commissioner of Sales Tax, M.P., Nagpur v. Mohanlal Ramkishan Nathani, Raipur), which arose under the C.P. and Berar Sales Tax Act, 1947, it has been held that:

The term 'glassware' in item 14 in Part I of the original Schedule I to the C.P. and Berar Sales Tax Act, 1947, whether it is interpreted in a narrow sense or otherwise, would include glass sheets.

In the decision reported in [1965] 16 STC 452 (Tribuwandas Gulabchand and Brothers, Nagpur v. State of Maharashtra), the Bombay High Court has held that:

The term 'glassware' in entry 15 of Schedule I, Part I, to the C.P. and Berar Sales Tax Act, 1947, includes glass sheets.

It has further been held that:

The question whether glassware includes glass sheets as understood in trade parlance is a matter of evidence and a question of fact. Where no evidence was led at any stage of the proceeding to show that in common parlance glassware does not include glass sheets, the question has to be decided on the construction of the entry and the provision in the Schedule.

In the said decision it has further been observed that:

The C.P. and Berar Sales Tax Act when it was originally passed contained entry in respect of this class of goods in the following form:

Glassware, domestic pottery and china. The entry was altered to its present form by addition of the words 'excepting bottles and lamp and lantern chimneys'.

In [1977] 39 STC 315 (Commissioner of Sales Tax v. Polychem Ltd.), the Bombay High Court has held that:

Polynite sheets used for making toys and novelties, inner door lining, back panels of refrigerators, wall panelling, casings for musical instruments, etc., must be regarded as plastics and not 'goods made primarily from any kind of plastics' within the meaning of entry 19A of Schedule E to the Bombay Sales Tax Act, 1959.

7. After considering all these decisions, the Delhi High Court in its judgment reported in [1980] 46 STC 17 (Commissioner of Sales Tax, Delhi Administration v. Baluja Glass Company) held that:

Glass sheets or glass panes are not glassware and, therefore, cannot be taxed under entry No. 23 of the First Schedule to the Bengal Finance (Sales Tax) Act, 1941, as extended to the Union Territory of Delhi.

It has further been held that:

Glassware means containers or vessels or other items of use made of glass and would not include glass sheets or window-panes cut out of glass sheets.

Glassware may include articles made of glass but all articles made of glass will not be glassware.

It has further been observed that:

We cannot agree with the finding that glass sheets would be raw material for fabricating window-panes thereby making window-panes 'glassware'. Blockquote> Entry No. 23 of the First Schedule in the said case read as under:Glassware, glazedware and china-ware including crockery.

8. The learned Counsel for the Revenue, therefore, contended that in the cases referred to above, the entry regarding glassware was different from the entry in question wherein it has been specifically mentioned as 'crockery and goods made of glass and glassware'. Therefore, now a distinction has been made between goods made of glass and glassware. Obviously glass sheets could not be included in glassware. He further submitted that even according to the assessee he has been dealing in glass sheets which he sells to the customers. It is not his case that these glass sheets are being sold by him as a raw material for any manufacturing purpose. Therefore, considering the wordings of entry No. 26 referred to above, it cannot be said that glass sheets are only glass in the form of a raw material.

9. The learned Counsellor the Revenue further submitted that 'goods' have been defined in Section 2(g) of the M.P. General Sales Tax Act, 1958, which is as follows:

'goods' means all kinds of movable property other than actionable claims, newspapers, stocks, shares, securities or Government stamps and includes all materials, articles and commodities whether or not to be used in the construction, fitting out, improvement or repair of movable or immovable property; and also includes all growing crops, grass, trees, plants and things attached to, or forming part of the land which are agreed to be severed before sale or under the contract of sale.

He also invited our attention to the definition of 'incidental goods' as mentioned in Section 2(hh), which is as follows:

'incidental goods' means goods other than raw material and packing material referred to in Clause (b) of Sub-section (3) of Section 8 of the Central Sales Tax Act, 1956 (No. 74 of 1956), for use by the registered dealer in the manufacture or processing of goods or in mining or in the generation of or distribution of electricity or any other form of power.

He also referred to the definition of the word 'manufacture' as defined in Section 2(j) and 'raw material' as defined in Section 2(1) of the said Act, which are as follows:

(j) 'manufacture' includes any process or manner of producing, collecting, extracting, preparing or making any goods, and in respect of trees which have been severed from the land or which have been felled, also the process of lopping the branches, cutting the trunks, or converting them into logs, poles or bailies or any other articles of wood, but does not include such manufactures or manufacturing processes as may be notified;(1) 'raw material' means an article used as an ingredient in any manufactured goods or an article consumed in the process of manufacture and includes fuel and lubricants required for the process of manufacture, but does not include bullion and specie.

He, therefore, after distinguishing the authorities referred to above submitted that according to the wordings of entry No. 26 the Tribunal has committed an error of law in deciding the point in favour of the assessee. The learned Counsel for the Revenue did not dispute this fact that while construing entries in taxing statutes, words must be given their ordinary connotation or at best connotation acceptable and commonly understood in the commercial world.

10. On the other hand the learned Counsel for the assessee relying upon the view taken by the Tribunal submitted that there is no evidence on record to indicate for what purpose the glass sheets are sold by the assessee though he did not dispute that from the statement of facts received from the Tribunal it is mentioned that the assessee deals in glass, rubber, plastic and aluminium goods. Therefore, it can be safely presumed, there being no dispute as such that the assessee has been selling glass sheets.

11. Admittedly the term 'glass' has nowhere been defined in the Act. But it also cannot be disputed that 'glass sheets' are made out of glass. However the learned Counsel for the assessee submitted that glass sheets are not goods made of glass. Further according to the learned Counsel glass sheets are just plain glass and while interpreting this entry the rule of ejusdem generis will apply and the expression 'goods made of glass' will be interpreted in conjunction with the expression 'all types of crockery' and 'glassware' occurring before and after the above expression. Thus interpreted, according to the learned Counsel, the term 'glass sheet' could not be considered as goods made of glass. However, in view of the specific wordings of entry No. 26 referred to above, we are not persuaded to agree with this submission especially when the word 'glassware' has been separately mentioned in entry No. 26. It is not the case of the assessee that he has been selling glass sheets for a manufacturing purpose or that he deals in broken glass sheets which cannot be used independently as glass sheets except for a manufacturing purpose, as a glass. It was also not disputed that glass sheets are made out of glass.

12. In the result we are of opinion that the question referred to us has to be answered in favour of the department and against the assessee. Both the references are answered accordingly with no order as to costs.