Semantic Analysis by spaCy
State of Orissa, Represented by the Commissioner of Sales Tax Vs. Das Glass Company
Decided On : Feb-21-2002
Court : Orissa
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Glass Works Ltd.', (int) 20 => 'Sales Tax', (int) 21 => 'U.P.', (int) 22 => 'the Madhya Pradesh High Court', (int) 23 => 'Sales Tax', (int) 24 => 'the Allahabad .High Court', (int) 25 => 'Tarkeshwarnath Agarwal', (int) 26 => 'U.P. Glass Works Ltd.', (int) 27 => 'P.K. Patra' ), 'NORP' => array( (int) 0 => 'J.1' ), 'CARDINAL' => array( (int) 0 => '38', (int) 1 => '42', (int) 2 => '2', (int) 3 => '1', (int) 4 => '8%The', (int) 5 => '40', (int) 6 => '42', (int) 7 => '9', (int) 8 => '38.5', (int) 9 => '47', (int) 10 => '359', (int) 11 => '39', (int) 12 => '34', (int) 13 => '497', (int) 14 => '32', (int) 15 => '252', (int) 16 => '74', (int) 17 => '26', (int) 18 => 'one', (int) 19 => '38' ), 'DATE' => array( (int) 0 => '40', (int) 1 => '85', (int) 2 => '1947', (int) 3 => ''40', (int) 4 => '1978', (int) 5 => '38', (int) 6 => '1981', (int) 7 => '1974', (int) 8 => '1973', (int) 9 => '1989', (int) 10 => '40' ), 'PERSON' => array( (int) 0 => 'Shantilal Kalidas', (int) 1 => 'Shantilal Kalidas v. State', (int) 2 => 'Glass', (int) 3 => 'Webster', (int) 4 => 'Madhya Pradesh', (int) 5 => 'Glass', (int) 6 => 'Tiles House' ), 'GPE' => array( (int) 0 => 'Puri', (int) 1 => 'Puri', (int) 2 => 'china', (int) 3 => 'Orissa', (int) 4 => 'glass.8' ), 'PERCENT' => array( (int) 0 => '12%', (int) 1 => '12%', (int) 2 => '8%', (int) 3 => '12%' ), 'PRODUCT' => array( (int) 0 => '101' ) ), 'desc' => array( 'Judgement' => array( 'id' => '536908', 'acts' => 'Orissa Sales Tax Act, 1947 - Sections 9B(3) and 24(1)', 'appealno' => 'Tax Revision No. 129 of 2001', 'appellant' => 'State of Orissa, Represented by the Commissioner of Sales Tax', 'authreffered' => '', 'casename' => 'State of Orissa, Represented by the Commissioner of Sales Tax Vs. Das Glass Company', 'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act. Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. - The Apex Court observed, 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. ' In the light of the settled position the Court further observed :it is true that the dictionary meaning of the expression 'glassware' is 'articles made of glass' (see Webster's New World Dictionary). However, in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in 'glassware' does not ordinarily deal in articles like clinical syringes, thermometers, lactometers etc. which articles though made of glass are normally available in medical stores or with the manufacturers thereof like the assessee. In popular sense when one talks of glassware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come upto one's mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be considered as 'glassware' falling within entry 39 of the First Schedule to the Act. In other words, it is glass simpliciter which is used for making or manufacturing 'glassware'.If one were to go for purchasing 'glassware' one would definitely not accept or purchase a 'glass sheet' and for the like reason, if one were to go for purchasing glass sheet one would not accept glassware if that was offered by the seller.', 'caseanalysis' => null, 'casesref' => 'Madhya Pradesh v. Glass and Tiles House;', 'citingcases' => '', 'counselplain' => 'V. Narasingha, Addl. Standing Counsel (C.T.)', 'counseldef' => 'None', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2002-02-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'P.C. Naik and ;P.K. Patra, JJ.', 'judgement' => '<p style="text-align: justify;">P.C. Naik, J.</p><p style="text-align: justify;">1. At the instance of the Revenue, the Orissa Sales Tax Tribunal has referred for the opinion of this Court, the following question of law :</p><p style="text-align: justify;">'Whether in the facts and circumstances of the case the Hon'ble Sales Tax Tribunal is correct to hold that glass sheets do not fall under the entry 38 or 40 as the case may be of the schedule of goods taxable on the point of sale in view of the ratio of the Orissa High Court judgment rendered in Shantilal Kalidas case (42 STC P-9) ?'</p><p style="text-align: justify;">2. The dispute relates to the assessment year 1984- 85. Admittedly, the dealer-opp. party carried on business in glass, mirror, straw board etc. at Puri. During the period in question the opp. party, who is a registered dealer had collected tax at 12% on the sale of glass sheets and paid tax at that rate on the turnover of glass sheet. However, in appeal before the Assistant Commissioner of Sales Tax, Puri the dealer contended that it had wrongly collected and paid tax at 12% on the sale of glass sheet which in fact ought to have been taxed at 8% as an unspecified item. The contention was accepted and the matter was remanded to the Assessing Officer for a fresh assessment and, it was also directed that action be taken against the dealer under Section 9-B(3)(a) (ii) of the Orissa Sales Act, 1947 (in short, 'the Act'). Aggrieved with the said order, the Revenue went up on appeal before the Tribunal which was turned down. However, on an application under Section 24 (1) of the Act, the question, as stated above, has been referred to this Court for its opinion.</p><p style="text-align: justify;">3. The entries relevant for the purpose of this case (as they stood at that time) read thus :</p><p style="text-align: justify;">'40. Glassware and china clay goods excepting bottles, lamp and lantern chimney and earthen were pottery ... 12%</p><p style="text-align: justify;">101. All other articles ... 8%</p><p style="text-align: justify;">The question for determination, therefore, is whether 'glass sheet' is 'glassware' so as to fall within entry 40 or whether it falls under entry 101 being an unspecified item.</p><p style="text-align: justify;">4. The learned counsel for the Revenue made a reference to the decision of this Court in the case of Shantilal Kalidas v. State of Orissa, (1978) 42 S.T.C. 9 wherein the question for consideration was whether 'glass bangles' are covered by the term 'glassware' . Therein, it was observed that since glassware has no statutory definition, but in view of the definition given in the dictionary, glassware would mean articles made of glass. The Court further observed that in construing entry 38, (at the relevant time) the common parlance theory is to be invoked and since in popular sense glassware would ordinarily refer to articles made of glass, the internal indication in the said entry by excluding certain class of articles made of glass from the ambit of glassware coupled with the popular sense establishes that all articles made of glass would be glassware for the purpose of that entry. Accordingly, glass bangles were held to be covered by the term 'glassware' in entry 38.</p><p style="text-align: justify;">5. In the case at hand, however, we are not dealing with any 'article' made of glass but with glass simpliciter. It will be stretching the expression 'glassware' too far if one were to say that 'glass sheet' is glassware. In fact, Glass is the raw material which is used for making glassware. At this stage reference may be made to a decision of the Apex Court in Indo International Industries v. Commissioner of Sales Tax, Uttar Pradesh, (1981) 47 STC 359 wherein the question for determination was whether hypodermic clinical syringes were glassware. The Apex Court observed,</p><p style="text-align: justify;">'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. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted.'</p><p style="text-align: justify;">In the light of the settled position the Court further observed :</p><p style="text-align: justify;">'.......it is true that the dictionary meaning of the expression 'glassware' is 'articles made of glass' (see Webster's New World Dictionary). However, in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in 'glassware' does not ordinarily deal in articles like clinical syringes, thermometers, lactometers etc. which articles though made of glass are normally available in medical stores or with the manufacturers thereof like the assessee. It is equally unlikely that a consumer would ask for such articles from a glassware shop. In popular sense when one talks of glassware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come upto one's mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be considered as 'glassware' falling within entry 39 of the First Schedule to the Act.'</p><p style="text-align: justify;">6. On behalf of the Revenue, reference was also made to a decision of the Allahabad High Court in the case of Tarkeshwarnath Agarwal v. Commissioner of Sales Tax, (1974) 34 S.T.C. 497 where relying on a decision in the case of U.P. Glass Works Ltd. v. Commissioner of Sales Tax, U.P. (1973) 32 S.T.C. 252, it was held that imported glass sheets sold as window-glasses would be taxed as glassware. We may, however, refer to a decision of the Madhya Pradesh High Court in Commissioner of Sales Tax, Madhya Pradesh v. Glass and Tiles House (1989) 74 S.T.C. 26 wherein it has been laid down that glassware does not include glass sheet and accordingly, glass sheets are taxable under the residuary entry.</p><p style="text-align: justify;">7. Having considered the matter in all its aspects, and the authorities cited, we do not find ourselves in agreement that the view expressed by the Allahabad .High Court in the case of Tarkeshwarnath Agarwal and U.P. Glass Works Ltd. (supra). It cannot be denied that a glass sheet is glass simpliciter and it is a primary product which is used for producing goods or articles made of glass. In other words, it is glass simpliciter which is used for making or manufacturing 'glassware'. If one were to go for purchasing 'glassware' one would definitely not accept or purchase a 'glass sheet' and for the like reason, if one were to go for purchasing glass sheet one would not accept glassware if that was offered by the seller. Therefore, though a glass sheet is glass, it cannot be equated with nor can it be termed as glassware or an article made of glass.</p><p style="text-align: justify;">8. In the above view of the matter, we are of the opinion that glass sheets do not fall under entry 38 or 40 as the case may be of the schedule of goods taxable on the point of sale. However, we may observe, that since admittedly, the dealer in question had recovered tax at 12% from the customers, he shall not be entitled to any refund. Reference is answered accordingly.</p><p style="text-align: justify;">P.K. Patra, J. </p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2002(I)OLR522', 'ratiodecidendi' => '', 'respondent' => 'Das Glass Company', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '536908' ) ) $title_for_layout = 'State of Orissa, Represented by the Commissioner of Sales Tax Vs. Das Glass Company Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Section 9-B(3)(a', (int) 1 => 'Section 24' ), 'ORG' => array( (int) 0 => 'P.C. Naik', (int) 1 => 'the Orissa Sales Tax Tribunal', (int) 2 => 'Court', (int) 3 => 'Sales Tax', (int) 4 => 'Tribunal', (int) 5 => 'Court', (int) 6 => 'Court', (int) 7 => 'Court', (int) 8 => 'the Apex Court', (int) 9 => 'Indo International Industries', (int) 10 => 'Sales Tax', (int) 11 => 'Uttar Pradesh', (int) 12 => 'The Apex Court', (int) 13 => 'the Excise Tax Acts', (int) 14 => 'Court', (int) 15 => 'New World Dictionary', (int) 16 => 'the Allahabad High Court', (int) 17 => 'Tarkeshwarnath Agarwal', (int) 18 => 'Sales Tax', (int) 19 => 'U.P. Glass Works Ltd.', (int) 20 => 'Sales Tax', (int) 21 => 'U.P.', (int) 22 => 'the Madhya Pradesh High Court', (int) 23 => 'Sales Tax', (int) 24 => 'the Allahabad .High Court', (int) 25 => 'Tarkeshwarnath Agarwal', (int) 26 => 'U.P. Glass Works Ltd.', (int) 27 => 'P.K. Patra' ), 'NORP' => array( (int) 0 => 'J.1' ), 'CARDINAL' => array( (int) 0 => '38', (int) 1 => '42', (int) 2 => '2', (int) 3 => '1', (int) 4 => '8%The', (int) 5 => '40', (int) 6 => '42', (int) 7 => '9', (int) 8 => '38.5', (int) 9 => '47', (int) 10 => '359', (int) 11 => '39', (int) 12 => '34', (int) 13 => '497', (int) 14 => '32', (int) 15 => '252', (int) 16 => '74', (int) 17 => '26', (int) 18 => 'one', (int) 19 => '38' ), 'DATE' => array( (int) 0 => '40', (int) 1 => '85', (int) 2 => '1947', (int) 3 => ''40', (int) 4 => '1978', (int) 5 => '38', (int) 6 => '1981', (int) 7 => '1974', (int) 8 => '1973', (int) 9 => '1989', (int) 10 => '40' ), 'PERSON' => array( (int) 0 => 'Shantilal Kalidas', (int) 1 => 'Shantilal Kalidas v. State', (int) 2 => 'Glass', (int) 3 => 'Webster', (int) 4 => 'Madhya Pradesh', (int) 5 => 'Glass', (int) 6 => 'Tiles House' ), 'GPE' => array( (int) 0 => 'Puri', (int) 1 => 'Puri', (int) 2 => 'china', (int) 3 => 'Orissa', (int) 4 => 'glass.8' ), 'PERCENT' => array( (int) 0 => '12%', (int) 1 => '12%', (int) 2 => '8%', (int) 3 => '12%' ), 'PRODUCT' => array( (int) 0 => '101' ) ) $desc = array( 'Judgement' => array( 'id' => '536908', 'acts' => 'Orissa Sales Tax Act, 1947 - Sections 9B(3) and 24(1)', 'appealno' => 'Tax Revision No. 129 of 2001', 'appellant' => 'State of Orissa, Represented by the Commissioner of Sales Tax', 'authreffered' => '', 'casename' => 'State of Orissa, Represented by the Commissioner of Sales Tax Vs. Das Glass Company', 'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act. Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. - The Apex Court observed, 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. ' In the light of the settled position the Court further observed :it is true that the dictionary meaning of the expression 'glassware' is 'articles made of glass' (see Webster's New World Dictionary). However, in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in 'glassware' does not ordinarily deal in articles like clinical syringes, thermometers, lactometers etc. which articles though made of glass are normally available in medical stores or with the manufacturers thereof like the assessee. In popular sense when one talks of glassware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come upto one's mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be considered as 'glassware' falling within entry 39 of the First Schedule to the Act. In other words, it is glass simpliciter which is used for making or manufacturing 'glassware'.If one were to go for purchasing 'glassware' one would definitely not accept or purchase a 'glass sheet' and for the like reason, if one were to go for purchasing glass sheet one would not accept glassware if that was offered by the seller.', 'caseanalysis' => null, 'casesref' => 'Madhya Pradesh v. Glass and Tiles House;', 'citingcases' => '', 'counselplain' => 'V. Narasingha, Addl. Standing Counsel (C.T.)', 'counseldef' => 'None', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2002-02-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'P.C. Naik and ;P.K. Patra, JJ.', 'judgement' => '<p style="text-align: justify;">P.C. Naik, J.</p><p style="text-align: justify;">1. At the instance of the Revenue, the Orissa Sales Tax Tribunal has referred for the opinion of this Court, the following question of law :</p><p style="text-align: justify;">'Whether in the facts and circumstances of the case the Hon'ble Sales Tax Tribunal is correct to hold that glass sheets do not fall under the entry 38 or 40 as the case may be of the schedule of goods taxable on the point of sale in view of the ratio of the Orissa High Court judgment rendered in Shantilal Kalidas case (42 STC P-9) ?'</p><p style="text-align: justify;">2. The dispute relates to the assessment year 1984- 85. Admittedly, the dealer-opp. party carried on business in glass, mirror, straw board etc. at Puri. During the period in question the opp. party, who is a registered dealer had collected tax at 12% on the sale of glass sheets and paid tax at that rate on the turnover of glass sheet. However, in appeal before the Assistant Commissioner of Sales Tax, Puri the dealer contended that it had wrongly collected and paid tax at 12% on the sale of glass sheet which in fact ought to have been taxed at 8% as an unspecified item. The contention was accepted and the matter was remanded to the Assessing Officer for a fresh assessment and, it was also directed that action be taken against the dealer under Section 9-B(3)(a) (ii) of the Orissa Sales Act, 1947 (in short, 'the Act'). Aggrieved with the said order, the Revenue went up on appeal before the Tribunal which was turned down. However, on an application under Section 24 (1) of the Act, the question, as stated above, has been referred to this Court for its opinion.</p><p style="text-align: justify;">3. The entries relevant for the purpose of this case (as they stood at that time) read thus :</p><p style="text-align: justify;">'40. Glassware and china clay goods excepting bottles, lamp and lantern chimney and earthen were pottery ... 12%</p><p style="text-align: justify;">101. All other articles ... 8%</p><p style="text-align: justify;">The question for determination, therefore, is whether 'glass sheet' is 'glassware' so as to fall within entry 40 or whether it falls under entry 101 being an unspecified item.</p><p style="text-align: justify;">4. The learned counsel for the Revenue made a reference to the decision of this Court in the case of Shantilal Kalidas v. State of Orissa, (1978) 42 S.T.C. 9 wherein the question for consideration was whether 'glass bangles' are covered by the term 'glassware' . Therein, it was observed that since glassware has no statutory definition, but in view of the definition given in the dictionary, glassware would mean articles made of glass. The Court further observed that in construing entry 38, (at the relevant time) the common parlance theory is to be invoked and since in popular sense glassware would ordinarily refer to articles made of glass, the internal indication in the said entry by excluding certain class of articles made of glass from the ambit of glassware coupled with the popular sense establishes that all articles made of glass would be glassware for the purpose of that entry. Accordingly, glass bangles were held to be covered by the term 'glassware' in entry 38.</p><p style="text-align: justify;">5. In the case at hand, however, we are not dealing with any 'article' made of glass but with glass simpliciter. It will be stretching the expression 'glassware' too far if one were to say that 'glass sheet' is glassware. In fact, Glass is the raw material which is used for making glassware. At this stage reference may be made to a decision of the Apex Court in Indo International Industries v. Commissioner of Sales Tax, Uttar Pradesh, (1981) 47 STC 359 wherein the question for determination was whether hypodermic clinical syringes were glassware. The Apex Court observed,</p><p style="text-align: justify;">'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. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted.'</p><p style="text-align: justify;">In the light of the settled position the Court further observed :</p><p style="text-align: justify;">'.......it is true that the dictionary meaning of the expression 'glassware' is 'articles made of glass' (see Webster's New World Dictionary). However, in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in 'glassware' does not ordinarily deal in articles like clinical syringes, thermometers, lactometers etc. which articles though made of glass are normally available in medical stores or with the manufacturers thereof like the assessee. It is equally unlikely that a consumer would ask for such articles from a glassware shop. In popular sense when one talks of glassware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come upto one's mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be considered as 'glassware' falling within entry 39 of the First Schedule to the Act.'</p><p style="text-align: justify;">6. On behalf of the Revenue, reference was also made to a decision of the Allahabad High Court in the case of Tarkeshwarnath Agarwal v. Commissioner of Sales Tax, (1974) 34 S.T.C. 497 where relying on a decision in the case of U.P. Glass Works Ltd. v. Commissioner of Sales Tax, U.P. (1973) 32 S.T.C. 252, it was held that imported glass sheets sold as window-glasses would be taxed as glassware. We may, however, refer to a decision of the Madhya Pradesh High Court in Commissioner of Sales Tax, Madhya Pradesh v. Glass and Tiles House (1989) 74 S.T.C. 26 wherein it has been laid down that glassware does not include glass sheet and accordingly, glass sheets are taxable under the residuary entry.</p><p style="text-align: justify;">7. Having considered the matter in all its aspects, and the authorities cited, we do not find ourselves in agreement that the view expressed by the Allahabad .High Court in the case of Tarkeshwarnath Agarwal and U.P. Glass Works Ltd. (supra). It cannot be denied that a glass sheet is glass simpliciter and it is a primary product which is used for producing goods or articles made of glass. In other words, it is glass simpliciter which is used for making or manufacturing 'glassware'. If one were to go for purchasing 'glassware' one would definitely not accept or purchase a 'glass sheet' and for the like reason, if one were to go for purchasing glass sheet one would not accept glassware if that was offered by the seller. Therefore, though a glass sheet is glass, it cannot be equated with nor can it be termed as glassware or an article made of glass.</p><p style="text-align: justify;">8. In the above view of the matter, we are of the opinion that glass sheets do not fall under entry 38 or 40 as the case may be of the schedule of goods taxable on the point of sale. However, we may observe, that since admittedly, the dealer in question had recovered tax at 12% from the customers, he shall not be entitled to any refund. Reference is answered accordingly.</p><p style="text-align: justify;">P.K. Patra, J. </p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2002(I)OLR522', 'ratiodecidendi' => '', 'respondent' => 'Das Glass Company', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '536908' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/'include - APP/View/Case/meta.ctp, line 36 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Warning (2): Invalid argument supplied for foreach() [APP/View/Case/meta.ctp, line 39]Code Context//$shops = $shops['entities'];foreach ($shops2 as $key => $val) {$viewFile = '/home/legalcrystal/app/View/Case/meta.ctp' $dataForView = array( 'title_for_layout' => 'State of Orissa, Represented by the Commissioner of Sales Tax Vs. Das Glass Company Semantic Analysis', 'shops' => array( 'LAW' => array( (int) 0 => 'Section 9-B(3)(a', (int) 1 => 'Section 24' ), 'ORG' => array( (int) 0 => 'P.C. 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Patra' ), 'NORP' => array( (int) 0 => 'J.1' ), 'CARDINAL' => array( (int) 0 => '38', (int) 1 => '42', (int) 2 => '2', (int) 3 => '1', (int) 4 => '8%The', (int) 5 => '40', (int) 6 => '42', (int) 7 => '9', (int) 8 => '38.5', (int) 9 => '47', (int) 10 => '359', (int) 11 => '39', (int) 12 => '34', (int) 13 => '497', (int) 14 => '32', (int) 15 => '252', (int) 16 => '74', (int) 17 => '26', (int) 18 => 'one', (int) 19 => '38' ), 'DATE' => array( (int) 0 => '40', (int) 1 => '85', (int) 2 => '1947', (int) 3 => ''40', (int) 4 => '1978', (int) 5 => '38', (int) 6 => '1981', (int) 7 => '1974', (int) 8 => '1973', (int) 9 => '1989', (int) 10 => '40' ), 'PERSON' => array( (int) 0 => 'Shantilal Kalidas', (int) 1 => 'Shantilal Kalidas v. State', (int) 2 => 'Glass', (int) 3 => 'Webster', (int) 4 => 'Madhya Pradesh', (int) 5 => 'Glass', (int) 6 => 'Tiles House' ), 'GPE' => array( (int) 0 => 'Puri', (int) 1 => 'Puri', (int) 2 => 'china', (int) 3 => 'Orissa', (int) 4 => 'glass.8' ), 'PERCENT' => array( (int) 0 => '12%', (int) 1 => '12%', (int) 2 => '8%', (int) 3 => '12%' ), 'PRODUCT' => array( (int) 0 => '101' ) ), 'desc' => array( 'Judgement' => array( 'id' => '536908', 'acts' => 'Orissa Sales Tax Act, 1947 - Sections 9B(3) and 24(1)', 'appealno' => 'Tax Revision No. 129 of 2001', 'appellant' => 'State of Orissa, Represented by the Commissioner of Sales Tax', 'authreffered' => '', 'casename' => 'State of Orissa, Represented by the Commissioner of Sales Tax Vs. Das Glass Company', 'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act. Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. - The Apex Court observed, 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. ' In the light of the settled position the Court further observed :it is true that the dictionary meaning of the expression 'glassware' is 'articles made of glass' (see Webster's New World Dictionary). However, in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in 'glassware' does not ordinarily deal in articles like clinical syringes, thermometers, lactometers etc. which articles though made of glass are normally available in medical stores or with the manufacturers thereof like the assessee. In popular sense when one talks of glassware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come upto one's mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be considered as 'glassware' falling within entry 39 of the First Schedule to the Act. In other words, it is glass simpliciter which is used for making or manufacturing 'glassware'.If one were to go for purchasing 'glassware' one would definitely not accept or purchase a 'glass sheet' and for the like reason, if one were to go for purchasing glass sheet one would not accept glassware if that was offered by the seller.', 'caseanalysis' => null, 'casesref' => 'Madhya Pradesh v. Glass and Tiles House;', 'citingcases' => '', 'counselplain' => 'V. Narasingha, Addl. Standing Counsel (C.T.)', 'counseldef' => 'None', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2002-02-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'P.C. Naik and ;P.K. Patra, JJ.', 'judgement' => '<p style="text-align: justify;">P.C. Naik, J.</p><p style="text-align: justify;">1. At the instance of the Revenue, the Orissa Sales Tax Tribunal has referred for the opinion of this Court, the following question of law :</p><p style="text-align: justify;">'Whether in the facts and circumstances of the case the Hon'ble Sales Tax Tribunal is correct to hold that glass sheets do not fall under the entry 38 or 40 as the case may be of the schedule of goods taxable on the point of sale in view of the ratio of the Orissa High Court judgment rendered in Shantilal Kalidas case (42 STC P-9) ?'</p><p style="text-align: justify;">2. The dispute relates to the assessment year 1984- 85. Admittedly, the dealer-opp. party carried on business in glass, mirror, straw board etc. at Puri. During the period in question the opp. party, who is a registered dealer had collected tax at 12% on the sale of glass sheets and paid tax at that rate on the turnover of glass sheet. However, in appeal before the Assistant Commissioner of Sales Tax, Puri the dealer contended that it had wrongly collected and paid tax at 12% on the sale of glass sheet which in fact ought to have been taxed at 8% as an unspecified item. The contention was accepted and the matter was remanded to the Assessing Officer for a fresh assessment and, it was also directed that action be taken against the dealer under Section 9-B(3)(a) (ii) of the Orissa Sales Act, 1947 (in short, 'the Act'). Aggrieved with the said order, the Revenue went up on appeal before the Tribunal which was turned down. However, on an application under Section 24 (1) of the Act, the question, as stated above, has been referred to this Court for its opinion.</p><p style="text-align: justify;">3. The entries relevant for the purpose of this case (as they stood at that time) read thus :</p><p style="text-align: justify;">'40. Glassware and china clay goods excepting bottles, lamp and lantern chimney and earthen were pottery ... 12%</p><p style="text-align: justify;">101. All other articles ... 8%</p><p style="text-align: justify;">The question for determination, therefore, is whether 'glass sheet' is 'glassware' so as to fall within entry 40 or whether it falls under entry 101 being an unspecified item.</p><p style="text-align: justify;">4. The learned counsel for the Revenue made a reference to the decision of this Court in the case of Shantilal Kalidas v. State of Orissa, (1978) 42 S.T.C. 9 wherein the question for consideration was whether 'glass bangles' are covered by the term 'glassware' . Therein, it was observed that since glassware has no statutory definition, but in view of the definition given in the dictionary, glassware would mean articles made of glass. The Court further observed that in construing entry 38, (at the relevant time) the common parlance theory is to be invoked and since in popular sense glassware would ordinarily refer to articles made of glass, the internal indication in the said entry by excluding certain class of articles made of glass from the ambit of glassware coupled with the popular sense establishes that all articles made of glass would be glassware for the purpose of that entry. Accordingly, glass bangles were held to be covered by the term 'glassware' in entry 38.</p><p style="text-align: justify;">5. In the case at hand, however, we are not dealing with any 'article' made of glass but with glass simpliciter. It will be stretching the expression 'glassware' too far if one were to say that 'glass sheet' is glassware. In fact, Glass is the raw material which is used for making glassware. At this stage reference may be made to a decision of the Apex Court in Indo International Industries v. Commissioner of Sales Tax, Uttar Pradesh, (1981) 47 STC 359 wherein the question for determination was whether hypodermic clinical syringes were glassware. The Apex Court observed,</p><p style="text-align: justify;">'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. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted.'</p><p style="text-align: justify;">In the light of the settled position the Court further observed :</p><p style="text-align: justify;">'.......it is true that the dictionary meaning of the expression 'glassware' is 'articles made of glass' (see Webster's New World Dictionary). However, in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in 'glassware' does not ordinarily deal in articles like clinical syringes, thermometers, lactometers etc. which articles though made of glass are normally available in medical stores or with the manufacturers thereof like the assessee. It is equally unlikely that a consumer would ask for such articles from a glassware shop. In popular sense when one talks of glassware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come upto one's mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be considered as 'glassware' falling within entry 39 of the First Schedule to the Act.'</p><p style="text-align: justify;">6. On behalf of the Revenue, reference was also made to a decision of the Allahabad High Court in the case of Tarkeshwarnath Agarwal v. Commissioner of Sales Tax, (1974) 34 S.T.C. 497 where relying on a decision in the case of U.P. Glass Works Ltd. v. Commissioner of Sales Tax, U.P. (1973) 32 S.T.C. 252, it was held that imported glass sheets sold as window-glasses would be taxed as glassware. We may, however, refer to a decision of the Madhya Pradesh High Court in Commissioner of Sales Tax, Madhya Pradesh v. Glass and Tiles House (1989) 74 S.T.C. 26 wherein it has been laid down that glassware does not include glass sheet and accordingly, glass sheets are taxable under the residuary entry.</p><p style="text-align: justify;">7. Having considered the matter in all its aspects, and the authorities cited, we do not find ourselves in agreement that the view expressed by the Allahabad .High Court in the case of Tarkeshwarnath Agarwal and U.P. Glass Works Ltd. (supra). It cannot be denied that a glass sheet is glass simpliciter and it is a primary product which is used for producing goods or articles made of glass. In other words, it is glass simpliciter which is used for making or manufacturing 'glassware'. If one were to go for purchasing 'glassware' one would definitely not accept or purchase a 'glass sheet' and for the like reason, if one were to go for purchasing glass sheet one would not accept glassware if that was offered by the seller. Therefore, though a glass sheet is glass, it cannot be equated with nor can it be termed as glassware or an article made of glass.</p><p style="text-align: justify;">8. In the above view of the matter, we are of the opinion that glass sheets do not fall under entry 38 or 40 as the case may be of the schedule of goods taxable on the point of sale. However, we may observe, that since admittedly, the dealer in question had recovered tax at 12% from the customers, he shall not be entitled to any refund. Reference is answered accordingly.</p><p style="text-align: justify;">P.K. Patra, J. </p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2002(I)OLR522', 'ratiodecidendi' => '', 'respondent' => 'Das Glass Company', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '536908' ) ) $title_for_layout = 'State of Orissa, Represented by the Commissioner of Sales Tax Vs. Das Glass Company Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Section 9-B(3)(a', (int) 1 => 'Section 24' ), 'ORG' => array( (int) 0 => 'P.C. 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Patra' ), 'NORP' => array( (int) 0 => 'J.1' ), 'CARDINAL' => array( (int) 0 => '38', (int) 1 => '42', (int) 2 => '2', (int) 3 => '1', (int) 4 => '8%The', (int) 5 => '40', (int) 6 => '42', (int) 7 => '9', (int) 8 => '38.5', (int) 9 => '47', (int) 10 => '359', (int) 11 => '39', (int) 12 => '34', (int) 13 => '497', (int) 14 => '32', (int) 15 => '252', (int) 16 => '74', (int) 17 => '26', (int) 18 => 'one', (int) 19 => '38' ), 'DATE' => array( (int) 0 => '40', (int) 1 => '85', (int) 2 => '1947', (int) 3 => ''40', (int) 4 => '1978', (int) 5 => '38', (int) 6 => '1981', (int) 7 => '1974', (int) 8 => '1973', (int) 9 => '1989', (int) 10 => '40' ), 'PERSON' => array( (int) 0 => 'Shantilal Kalidas', (int) 1 => 'Shantilal Kalidas v. State', (int) 2 => 'Glass', (int) 3 => 'Webster', (int) 4 => 'Madhya Pradesh', (int) 5 => 'Glass', (int) 6 => 'Tiles House' ), 'GPE' => array( (int) 0 => 'Puri', (int) 1 => 'Puri', (int) 2 => 'china', (int) 3 => 'Orissa', (int) 4 => 'glass.8' ), 'PERCENT' => array( (int) 0 => '12%', (int) 1 => '12%', (int) 2 => '8%', (int) 3 => '12%' ), 'PRODUCT' => array( (int) 0 => '101' ) ) $desc = array( 'Judgement' => array( 'id' => '536908', 'acts' => 'Orissa Sales Tax Act, 1947 - Sections 9B(3) and 24(1)', 'appealno' => 'Tax Revision No. 129 of 2001', 'appellant' => 'State of Orissa, Represented by the Commissioner of Sales Tax', 'authreffered' => '', 'casename' => 'State of Orissa, Represented by the Commissioner of Sales Tax Vs. Das Glass Company', 'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act. Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. - The Apex Court observed, 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. ' In the light of the settled position the Court further observed :it is true that the dictionary meaning of the expression 'glassware' is 'articles made of glass' (see Webster's New World Dictionary). However, in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in 'glassware' does not ordinarily deal in articles like clinical syringes, thermometers, lactometers etc. which articles though made of glass are normally available in medical stores or with the manufacturers thereof like the assessee. In popular sense when one talks of glassware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come upto one's mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be considered as 'glassware' falling within entry 39 of the First Schedule to the Act. In other words, it is glass simpliciter which is used for making or manufacturing 'glassware'.If one were to go for purchasing 'glassware' one would definitely not accept or purchase a 'glass sheet' and for the like reason, if one were to go for purchasing glass sheet one would not accept glassware if that was offered by the seller.', 'caseanalysis' => null, 'casesref' => 'Madhya Pradesh v. Glass and Tiles House;', 'citingcases' => '', 'counselplain' => 'V. Narasingha, Addl. Standing Counsel (C.T.)', 'counseldef' => 'None', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2002-02-21', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => 'P.C. Naik and ;P.K. Patra, JJ.', 'judgement' => '<p style="text-align: justify;">P.C. Naik, J.</p><p style="text-align: justify;">1. At the instance of the Revenue, the Orissa Sales Tax Tribunal has referred for the opinion of this Court, the following question of law :</p><p style="text-align: justify;">'Whether in the facts and circumstances of the case the Hon'ble Sales Tax Tribunal is correct to hold that glass sheets do not fall under the entry 38 or 40 as the case may be of the schedule of goods taxable on the point of sale in view of the ratio of the Orissa High Court judgment rendered in Shantilal Kalidas case (42 STC P-9) ?'</p><p style="text-align: justify;">2. The dispute relates to the assessment year 1984- 85. Admittedly, the dealer-opp. party carried on business in glass, mirror, straw board etc. at Puri. During the period in question the opp. party, who is a registered dealer had collected tax at 12% on the sale of glass sheets and paid tax at that rate on the turnover of glass sheet. However, in appeal before the Assistant Commissioner of Sales Tax, Puri the dealer contended that it had wrongly collected and paid tax at 12% on the sale of glass sheet which in fact ought to have been taxed at 8% as an unspecified item. The contention was accepted and the matter was remanded to the Assessing Officer for a fresh assessment and, it was also directed that action be taken against the dealer under Section 9-B(3)(a) (ii) of the Orissa Sales Act, 1947 (in short, 'the Act'). Aggrieved with the said order, the Revenue went up on appeal before the Tribunal which was turned down. However, on an application under Section 24 (1) of the Act, the question, as stated above, has been referred to this Court for its opinion.</p><p style="text-align: justify;">3. The entries relevant for the purpose of this case (as they stood at that time) read thus :</p><p style="text-align: justify;">'40. Glassware and china clay goods excepting bottles, lamp and lantern chimney and earthen were pottery ... 12%</p><p style="text-align: justify;">101. All other articles ... 8%</p><p style="text-align: justify;">The question for determination, therefore, is whether 'glass sheet' is 'glassware' so as to fall within entry 40 or whether it falls under entry 101 being an unspecified item.</p><p style="text-align: justify;">4. The learned counsel for the Revenue made a reference to the decision of this Court in the case of Shantilal Kalidas v. State of Orissa, (1978) 42 S.T.C. 9 wherein the question for consideration was whether 'glass bangles' are covered by the term 'glassware' . Therein, it was observed that since glassware has no statutory definition, but in view of the definition given in the dictionary, glassware would mean articles made of glass. The Court further observed that in construing entry 38, (at the relevant time) the common parlance theory is to be invoked and since in popular sense glassware would ordinarily refer to articles made of glass, the internal indication in the said entry by excluding certain class of articles made of glass from the ambit of glassware coupled with the popular sense establishes that all articles made of glass would be glassware for the purpose of that entry. Accordingly, glass bangles were held to be covered by the term 'glassware' in entry 38.</p><p style="text-align: justify;">5. In the case at hand, however, we are not dealing with any 'article' made of glass but with glass simpliciter. It will be stretching the expression 'glassware' too far if one were to say that 'glass sheet' is glassware. In fact, Glass is the raw material which is used for making glassware. At this stage reference may be made to a decision of the Apex Court in Indo International Industries v. Commissioner of Sales Tax, Uttar Pradesh, (1981) 47 STC 359 wherein the question for determination was whether hypodermic clinical syringes were glassware. The Apex Court observed,</p><p style="text-align: justify;">'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. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted.'</p><p style="text-align: justify;">In the light of the settled position the Court further observed :</p><p style="text-align: justify;">'.......it is true that the dictionary meaning of the expression 'glassware' is 'articles made of glass' (see Webster's New World Dictionary). However, in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in 'glassware' does not ordinarily deal in articles like clinical syringes, thermometers, lactometers etc. which articles though made of glass are normally available in medical stores or with the manufacturers thereof like the assessee. It is equally unlikely that a consumer would ask for such articles from a glassware shop. In popular sense when one talks of glassware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come upto one's mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be considered as 'glassware' falling within entry 39 of the First Schedule to the Act.'</p><p style="text-align: justify;">6. On behalf of the Revenue, reference was also made to a decision of the Allahabad High Court in the case of Tarkeshwarnath Agarwal v. Commissioner of Sales Tax, (1974) 34 S.T.C. 497 where relying on a decision in the case of U.P. Glass Works Ltd. v. Commissioner of Sales Tax, U.P. (1973) 32 S.T.C. 252, it was held that imported glass sheets sold as window-glasses would be taxed as glassware. We may, however, refer to a decision of the Madhya Pradesh High Court in Commissioner of Sales Tax, Madhya Pradesh v. Glass and Tiles House (1989) 74 S.T.C. 26 wherein it has been laid down that glassware does not include glass sheet and accordingly, glass sheets are taxable under the residuary entry.</p><p style="text-align: justify;">7. Having considered the matter in all its aspects, and the authorities cited, we do not find ourselves in agreement that the view expressed by the Allahabad .High Court in the case of Tarkeshwarnath Agarwal and U.P. Glass Works Ltd. (supra). It cannot be denied that a glass sheet is glass simpliciter and it is a primary product which is used for producing goods or articles made of glass. In other words, it is glass simpliciter which is used for making or manufacturing 'glassware'. If one were to go for purchasing 'glassware' one would definitely not accept or purchase a 'glass sheet' and for the like reason, if one were to go for purchasing glass sheet one would not accept glassware if that was offered by the seller. Therefore, though a glass sheet is glass, it cannot be equated with nor can it be termed as glassware or an article made of glass.</p><p style="text-align: justify;">8. In the above view of the matter, we are of the opinion that glass sheets do not fall under entry 38 or 40 as the case may be of the schedule of goods taxable on the point of sale. However, we may observe, that since admittedly, the dealer in question had recovered tax at 12% from the customers, he shall not be entitled to any refund. Reference is answered accordingly.</p><p style="text-align: justify;">P.K. Patra, J. </p><p style="text-align: justify;">I agree.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2002(I)OLR522', 'ratiodecidendi' => '', 'respondent' => 'Das Glass Company', 'sub' => 'Sales Tax', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '536908' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/' $shops2 = nullinclude - APP/View/Case/meta.ctp, line 39 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
LAW: Section 9-B(3)(a, Section 24
ORG: P.C. Naik, the Orissa Sales Tax Tribunal, Court, Sales Tax, Tribunal, Court, Court, Court, the Apex Court, Indo International Industries, Sales Tax, Uttar Pradesh, The Apex Court, the Excise Tax Acts, Court, New World Dictionary, the Allahabad High Court, Tarkeshwarnath Agarwal, Sales Tax, U.P. Glass Works Ltd., Sales Tax, U.P., the Madhya Pradesh High Court, Sales Tax, the Allahabad .High Court, Tarkeshwarnath Agarwal, U.P. Glass Works Ltd., P.K. Patra
NORP: J.1
CARDINAL: 38, 42, 2, 1, 8%The, 40, 42, 9, 38.5, 47, 359, 39, 34, 497, 32, 252, 74, 26, one, 38
DATE: 40, 85, 1947, '40, 1978, 38, 1981, 1974, 1973, 1989, 40
PERSON: Shantilal Kalidas, Shantilal Kalidas v. State, Glass, Webster, Madhya Pradesh, Glass, Tiles House
GPE: Puri, Puri, china, Orissa, glass.8
PERCENT: 12%, 12%, 8%, 12%
PRODUCT: 101