2015 (4) TMI 250 - HC - VAT and Sales Tax

Denial of exemption claim - Classification of goods - Rate of levy of duty @4% or 10% - Classification of marker & highlighter - Classification as pen - Classification of carbon paper, stamp pad & ink of stamp pad and covert (eraser) - Classification as stationary items - Held that - As per notification dt. 04/03/1992 the category was all types of fountain pens, ball pens and accessories thereof and as per notification No.F.4(8)FDGR.IV/94-49 dated 7.3.1994 it was exchanged to all types of pens including parts and accessories thereof, drawing materials and poster colours. Therefore, in my view, the scope of pen was enlarged and marker as well as highlighter can fall within the meaning of a pen and by highlighter as well as marker one can certainly write though the low by writing from a marker or a highlighter may not be to that extent but these are definitely instruments of writings. In the light of the judgment of the Hon'ble Apex Court 2008 (9) TMI 1 - SUPREME COURT as also definition of marker and highlighter as given above in my view marker as well as highlighter will literally fall in the category of all types of pens and accordingly, in my view, the Tax Board has rightly considered the said issue in favour of the assessee and against the revenue and I accordingly hold the same Claim of the assessee is well justified as in the notification dt.26/03/1999, the category is All kinds of paper, stationery, greeting/wedding and other printed cards and therefore, in my humble view, all three items will fall within the category of stationery. The sales tax enactment is one which touches the common man and his everyday life. Therefore, the terms in the said enactment must be in the manner in which the common man will understand them. In other words, the test is as to what a common man viewing or dealing with the article will understand it to be. In doing so, the particular use to which a particular customer may put in should be eschewed from consideration. Thus, in common parlance, (i) carbon paper, (ii) stamp pad & ink of stamp pad, (iii) covert (eraser) can certainly be called to be the items of stationery and in my view, the argument of counsel for the petitioner-Revenue is wholly unjustified that they form part of the residuary clause rather than the head of All kinds of paper, stationery, greeting/wedding and other printed cards . In my view, under the taxing statute, the words, which are not technical expressions or words of art, but words of everyday use, must be understood and given a popular meaning not in their technical or strong sense but in a sense as understand in common parlance and sense, which the people conversant with the subject matter, which the statute is dealing would attribute to it. Such words must be understood in their popular sense and at the place in which these are being told. The items namely; (i) marker & highlighter, (ii) carbon paper, (iii) stamp pad & ink of stamp pad, (iv) covert (eraser) will be available in a stationery shop alone and if one has to purchase such items, one will have to go to a shop of stationery only to get these items rather than from a textile or a grocery shop . Therefore, in my view, all these items can be understood according to the common commercial understanding of these terms and in my view, all these form part of stationery items and cannot be termed as falling within the general category. In so far as the classification of goods is concerned, the Hon'ble Apex Court in the case of HPL Chemical Ltd. (2006 (4) TMI 1 - SUPREME COURT OF INDIA) has held that classification of goods is a matter relating to chargeability and the burden of proof is squarely upon the Revenue. If the Department intends to classify the goods under a particular heading or sub-heading different from that claimed by the assessee, the Department has to adduce proper evidence and discharge the burden of proof. I notice that in the present case, except that the Revenue claims that it falls in residuary/general clause, nothing has been brought on record so as to come to the conclusion that these items are not items of stationery, burden was on the Revenue. - Decided against Revenue.

Issues Involved:
1. Classification of marker & highlighter as pens.
2. Classification of carbon paper as stationery.
3. Classification of stamp pad & ink of stamp pad as stationery.
4. Classification of covert (eraser) as stationery.

Detailed Analysis:

1. Classification of Marker & Highlighter as Pens:
The primary issue was whether markers and highlighters fall under the category of "pens" as per the notification dated 07/03/1994. The Assessing Officer (AO) argued that markers and highlighters are not pens and should be taxed at a general rate of 10%. The Deputy Commissioner (Appeals) (DC(A)) and the Tax Board concluded that markers and highlighters fall within the definition of pens, referencing the expanded definition in the notification which included "all types of pens including parts and accessories thereof, drawing materials and poster colours." The High Court upheld this view, citing the Hon'ble Apex Court's decision in Camlin Limited v. CCE, which recognized markers and highlighters as instruments of writing. The court referred to dictionary definitions to support this interpretation, concluding that markers and highlighters are indeed types of pens and should be taxed accordingly.

2. Classification of Carbon Paper as Stationery:
The AO contended that carbon paper should not be classified as stationery and should be taxed at a higher rate of 10%. The DC(A) and the Tax Board classified carbon paper as stationery, subject to a lower tax rate. The High Court supported this classification, referencing the MP High Court's decision in Modern Agency, which emphasized a pragmatic view of the term "stationery" to include items commonly used in offices and by students. The court distinguished the Hon'ble Apex Court's decision in Kores (India) Ltd., which addressed whether carbon paper is "paper" rather than "stationery." The court concluded that carbon paper falls within the common parlance understanding of stationery.

3. Classification of Stamp Pad & Ink of Stamp Pad as Stationery:
The AO argued that stamp pads and their ink should be taxed at a general rate of 10%. The DC(A) and the Tax Board classified these items as stationery, subject to a lower tax rate. The High Court upheld this classification, referencing the MP High Court's decision in Modern Agency and emphasizing the common parlance understanding of stationery. The court noted that these items are typically found in stationery shops and used in offices, supporting their classification as stationery.

4. Classification of Covert (Eraser) as Stationery:
The AO contended that erasers should be taxed at a general rate of 10%. The DC(A) and the Tax Board classified erasers as stationery, subject to a lower tax rate. The High Court supported this classification, emphasizing the common parlance understanding of stationery and referencing the MP High Court's decision in Modern Agency. The court noted that erasers are commonly used by students and professionals and are typically found in stationery shops.

Conclusion:
The High Court dismissed both revision petitions by the revenue, upholding the Tax Board's decision. The court concluded that markers and highlighters fall within the category of "all types of pens," and carbon paper, stamp pads & their ink, and erasers fall within the category of "stationery." The court emphasized the importance of common parlance understanding and the burden of proof on the revenue to classify items under a different heading. The question of law was answered in favor of the assessee and against the revenue.

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