2014 (8) TMI 444 - HC - VAT and Sales Tax

Entry tax - Taxability of X-ray films - whether polyester film, metallised pet, metallised BOPP, aluminium foil film and poly film are covered by entry No. 28 of the Assam Entry Tax Act, 2008, i.e., films of all kinds including X-ray films making these liable to be taxed - Held that - taxing statutes must receive strict interpretation and there cannot be taxation by implication and there must be clear and express language imposing tax. Further, the intent of the Legislature is to be gathered from the words used in the statute and once it is shown that the assessee falls within the letter of law, he must be taxed howsoever great the hardship it may appear to be. - On a cursory glance of the entry, it would appear that films of any kind or nature would be covered by the aforesaid entry. Thus the aforesaid items, polyester film, metallised pet, metallised BOPP, aluminium foil film and poly film, if they are to be understood as films would be apparently covered by the said entry. However, the problem has arisen because of the use of the words including X-ray films in the said entry. Words X-ray films would normally be covered by the words films of all kinds and as such, there was no need to specifically mention X-ray films again in the said entry. The expression films of all kinds in its sweep would normally take into account any kind of film including X-ray film . Therefore, it is clear that the word including has not been used as an enlarging or extensive word, for it could not have been the intention of the Legislature to include something which in normal course would already stand included. The contention of the respondent authorities that the said word including has been used as an abundant caution to emphasis the fact that X-ray films have been included to clarify that nothing should be left out from the all inclusive and comprehensive character of the expression films of all kinds , stands repelled in view of the decision of the Supreme Court in South Gujarat Roofing Tiles Manufacturers Association 1976 (10) TMI 147 - SUPREME COURT OF INDIA . By using the word including in entry 28, the Legislature did not wish to include an article which would normally be covered by the general terms films of all kinds but to give an exhaustive meaning to the words films of all kinds by clarifying and indicating the nature of film by referring to X-ray films. In doing so, the substances covered by the expression, films of all kinds would possess such characteristics which are also discernible in X-ray films . Thus, the words films of all kinds would envisage only those films which also possess certain characteristics as discernible in an X-ray film. The expression X-ray films , therefore, would act as the indicator of the nature of the kinds of films contemplated under the expression films of all kinds . Therefore, the words films of all kinds would be such films which possess any of the characteristics or attributes of X-ray film , i.e., photosensitive materials and not any other film which does not possess such character. The kinds of films which would be covered by entry 28 would be only those films which have certain photosensitive materials. It will cover all those films possessing certain characteristics which may be also found in X-ray film but going under different names. This corresponds to the second definition of film as discussed above. In view of the above, films of all kinds referred to in entry 28 would be the films which possess photosensitive elements in them - articles, polyester film, metallised pet, metallised BOPP, aluminium foil film and poly film do not possess any such photosensitive chemical or substances which would qualify them to be treated as films under entry 28 and accordingly, these substances cannot be covered under entry 28 and not liable to be taxed under the said entry - Decided in favour of assessee.

Issues Involved:
1. Validity of the clarificatory order dated December 19, 2009.
2. Interpretation of Entry No. 28 of the Schedule attached to the Assam Entry Tax Act, 2008.
3. Taxability of polyester film, metallised pet, metallised BOPP, aluminium foil film, and poly film under Entry No. 28.

Detailed Analysis:

1. Validity of the Clarificatory Order Dated December 19, 2009
The petitions challenged the clarificatory order dated December 19, 2009, issued by the Commissioner of Taxes, Assam, which determined that polyester film, metallised pet, metallised BOPP, aluminium foil film, and poly film are taxable at four per cent under Entry No. 28 of the Assam Entry Tax Act, 2008. The court found that the clarificatory order and subsequent show-cause and recovery notices were based on an incorrect interpretation of Entry No. 28, leading to their invalidation.

2. Interpretation of Entry No. 28 of the Schedule Attached to the Assam Entry Tax Act, 2008
Entry No. 28 reads: "Films of all kinds including X-ray films." The primary issue was whether this entry encompasses the items in question. The court emphasized that taxing statutes require strict interpretation and that taxation must be imposed through clear and express language. The court examined whether the term "films of all kinds" was expanded or restricted by the inclusion of "including X-ray films."

The court referred to dictionary definitions and legal precedents to understand the term "film." It concluded that in common parlance, "film" usually refers to photosensitive materials used in photography or cinematography, not to packaging materials. The court also analyzed the use of the word "including" in legal contexts, determining that it can either enlarge or restrict the scope of the term it qualifies. In this case, the court found that "including X-ray films" was intended to qualify and restrict the scope of "films of all kinds" to those possessing photosensitive characteristics.

3. Taxability of Polyester Film, Metallised Pet, Metallised BOPP, Aluminium Foil Film, and Poly Film Under Entry No. 28
The court determined that the items in question-polyester film, metallised pet, metallised BOPP, aluminium foil film, and poly film-do not possess photosensitive characteristics and are primarily used for packaging. Therefore, they do not fall within the ambit of "films of all kinds" as intended by Entry No. 28. The court concluded that these items are not taxable under this entry.

Conclusion
The court set aside the clarificatory order dated December 19, 2009, and all consequential show-cause and recovery notices. The court held that polyester film, metallised pet, metallised BOPP, aluminium foil film, and poly film are not covered under Entry No. 28 of the Assam Entry Tax Act, 2008, and are not liable to be taxed under this entry.

← Previous Next →