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TMI Blog2001 (1) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... on the same parity of reasoning aviation fuel, liquid petroleum gas, kerosene and naphtha would also have to be regarded as not being included in the said entries and if this is so there was no need for their specific exclusion. The very fact that there is an exclusion clause, means that but for the said exclusion, aviation fuel, LPG, etc. would be included in the said entries and as they are not specifically mentioned they would be covered by reason of the words “and others”. The said entries further show that the legislature never intended to exclude furnace oil from the levy of entry tax. Appeal dismissed. - Civil Appeal No. 1896-1899 of 1997, 1900-1903 of 1997, 3697 of 2000 & 3696 of 2000 - - - Dated:- 17-1-2001 - B.N. Kirpal and Ruma Pal, JJ. REPRESENTED BY : S/Shri Gopal Subramanium, Joseph Vellapally, Sr. Advocates, K.P. Kumar, K.T. Anantharaman, Dhruv Agarwal, R.V. Prasad, Praveen Kumar, Udai Singh, Sanjay R. Hegde and Satya Mitra, Advocates, for the appearing parties. [Judgment per : B.N. Kirpal, J]. The judgment of the Court was delivered by M.L. PENDSE, C.J. -These appeals are directed against common judgment dated January 28, 1992, delivered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the aggrieved party to the Appellate Tribunal constituted under the Act. It is open for the aggrieved party to challenge the order of the Appellate Tribunal by filing an appeal to the High Court under section 16 of the Act. Turning to the Schedule, the relevant entry 11 reads as follows: "All petroleum products, that is to say, petrol, diesel, crude oil, lubricating oil, transformer oil, brake or clutch fluid, bitumen (asphalt) tar and others, but excluding LPG, kerosene and naphtha for use in the manufacture of fertilisers." 3.. It is not in dispute that the respondent, which is a public limited company, had imported furnace oil into local areas for consumption. Before the assessing authority, it was claimed that though the petroleum products are liable to levy of duty, the import of the furnace oil cannot be taxed. The assessing authority did not accept the contention in view of the circular issued by the Commissioner on May 13, 1980. The assessment order indicates that penalty was levied by taking a lenient view in respect of various incorrect statements contained in the returns filed by the respondent-company and these incorrect statements were not only in respect of fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The goods referred to in the Schedule are merely illustrative in nature. The principal portion of the entry is "all petroleum products" and due weight must be given to the expression "all". In case the Legislature intended that the scheduled goods set out in the entry are exhaustive in nature, then the expression "all", was uncalled for and the entry could have been petroleum products that is to say, petrol, diesel, etc. The expression "all", in our judgment, is a telltale circumstance to indicate that the Legislature never intended that the list of scheduled goods set out under entry was exhaustive. There is other intrinsic evidence in the entry to establish that the scheduled goods set out are merely illustrative in nature. The entry after setting out various scheduled goods, uses the expression "and others but excluding LPG, kerosene and naphtha for use in the manufacture of fertilisers". The expression "others" clearly demonstrates the intention of the Legislature that the scheduled goods referred to earlier do not exhaust the scheduled goods which are liable to pay duty. The expressions "all petroleum products" and "others" read in conjunction, clearly establish that the sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncipal clause. It has the following properties: (1) It must not be contrary to the principal clause; (2) it must neither increase or diminish it; (3) but where the principal clause is general in terms, it may restrict it. Relying on clause (3), it was contended that the principal clause "All petroleum products" being general in terms, the expression "that is to say" restricts it to only those scheduled goods which are set out therein. It is not possible to accede to the contention for the reasons set out hereinabove. The learned counsel referred to the decision of the Supreme Court in State of Tamil Nadu v. Pyare Lal Malhotra [1976] 37 STC 319; AIR 1976 SC 800. In the case before the Supreme Court, section 14 of the Central Sales Tax Act, 1956 declared certain goods of special importance in inter-State trade and commerce and which was liable to levy of tax. Clause (iv) reads as follows: "(iv) Iron and steel, that is to say,"- and then sets out 16 different categories which enumerates widely different commercial commodities. The Supreme Court was required to determine whether the expression "that is to say" is indicative that only those 16 categories set out therein are liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned and the chicks are birds and not animals, the chicks would not attract the levy under the clause. We are unable to accede to the contention of the learned counsel for the company that these two decisions, which refer to the earlier decision in the State of Tamil Nadu v. Pyare Lal Malhotra [1976] 37 STC 319 (SC); AIR 1976 SC 800 are conclusive for determination of the claim of the respondent- company. In our judgment, the three decisions of the Supreme Court relied upon did not contain the special features which are noticed in entry 11 of the Schedule to the Act and therefore it is not possible to conclude that as the expression "that is to say" occurs in the entry, the conclusion must follow that the list of scheduled goods set out in the entry is exhaustive and not illustrative. Reference was also made to the decision of the High Court of Andhra Pradesh in Jaiswal Sons v. Commissioner of Commercial Taxes [1992] 86 STC 416. In the case before the Andhra Pradesh High Court, entry 38 read "all kinds of electrical goods, instruments, apparatus and appliances, that is to say" and then follows an enumeration of different items. The Andhra Pradesh High Court referred to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the respondent no longer survives. It is open for the respondent to file appeals against the levy of penalty, if so advised. 8.. Accordingly, all the appeals are allowed and impugned judgment dated January 28, 1992, passed by the learned single Judge in Writ Petitions Nos. 16382 to 16385 of 1988 is set aside and the writ petitions stand dismissed. The respondent-company shall pay the costs of the appellants throughout. The assessee appealed to the Supreme Court. Counsel appearing for the parties: The common question which arises for consideration in these cases relates to the interpretation of an entry in the Karnataka Tax on Entry of Goods Act, 1979 (for short the Act ) insofar it relates to furnace oil. 2. In the three sets of cases, there are different periods of assessment which are involved. In the case of Indian Aluminium Company Ltd. (Civil Appeal Nos. 1896-1899/1997 and 1900-1903/1997), the two periods in question are 1982-85 and 1986-89. In the case of M/s. Vikrant Tyres Limited (Civil Appeal No. 3697/2000), the period involved is 1992-93. In case of M/s. Graphite India Limited (Civil Appeal No. 3696/2000), we are concerned with the period post-1998. 3. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f fertilizers. 7. On 30th March, 1994, in exercise of the powers conferred by sub-section (1) of Section 3, the Government of Karnataka by a notification specified different rates of tax in respect of entry of goods into Karnataka. Items 4 and 5, which are relevant in the present cases, which were inserted by reason of the said Notification were as follows : 4. Petroleum products, that is to say Petrol, Diesel, Crude Oil, Lubricating Oil, Transformer Oil, Brake or Clutch fluid, Bitumen (asphalt), Tar and others but excluding Liquid Petroleum Gas (LPG), Kerosene and Naphtha for use in the manufacture of fertilizers ..2% 5. Furnace Oil ..2% 8. On 28th June, 1996, the Division Bench of the Karnataka High Court allowed the appeal of the State and set aside the decision of the Single Judge. The Division Bench came to the conclusion that the aforesaid original Entry No. 11 and the corresponding Entry No. 67 of the First Schedule after amendment in 1992 contemplated the inclusion of furnace oil in the said Entry and, therefore, tax could be levied thereon. In these appeals, the challenge is to the said decision. 9. Learned counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on fuel, LPG, etc. would be included in the said entries and as they are not specifically mentioned they would be covered by reason of the words and others . 12. The said entries further show that the legislature never intended to exclude furnace oil from the levy of entry tax. Had the intention of the legislature been to exclude furnace oil, which admittedly is a petroleum product, then such an exclusion would have been indicated in the said entry itself as has been done in the case of aviation fuel, LPG, kerosene and naphtha for use in the manufacture of fertilizers. The aforesaid entries are clear and unambiguous and clearly indicate the taxability of any type of petroleum product except those which are specifically excluded by the said entries. 13. Coming to the notification of 30th March, 1994, it is quite obvious that as on that day the judgment of the Single Jude in Indian Aluminium Co. s case held the field and as a result thereof the State was unable to impose entry tax on the import of furnace oil into the State. The only way by which this could have been done, pending the outcome of the letters patent appeal, was to make a specific provision which it did by the said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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