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TMI Blog2004 (12) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... RIJIT PASAYAT AND THAKKER C.K. JJ. B.B. Singh, Advocate, for the respondents. S. Ganesh, Senior Advocate (Gaurav Agrawal, Ms. Akila Agrawal and Prashant Kumar, Advocates, with him) for the appellant. -------------------------------------------------- The judgment of the Court was delivered by ARIJIT PASAYAT, J. -Appellant (hereinafter referred to as "the dealer") calls in question legality of the judgment rendered by division Bench of the Patna High Court Reported in [2004] 138 STC 423 [Parle Biscuits (P.) Ltd. v. State of Bihar] holding that Notification No. S.O. 154, dated January 28, 1985 issued under proviso to section 13(1) of the Bihar Finance Act, 1981 (in short "the Act") in relation to sale and purchase of packing materials, is applicable to the appellant, and section 13(1)(e) of the Act inserted by the Bihar Finance (Amendment) Act, 1985 (in short, "the Amendment Act") w.e.f. August 1, 1985 did not render it inapplicable. 2.. The background facts necessary for disposal of the appeal essentially are as follows: Appellant is a company registered under the Companies Act, 1956 (in short "the Companies Act") and is a dealer registered under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant filed writ petition before the Patna High Court highlighting that its predecessor was granted concession. The notification dated January 28, 1985 cannot have any operation to rule out operation of section 13(1)(e) of the Act. In any event, what the appellant wanted to include was "card board box" and what is excluded is "card board". Reference was made to an earlier decision of the High Court in Card Board Products v. State of Bihar [1989] 73 STC 438 (patna) where it was held that "card board boxes" are different from "card board". It was also submitted that the expression "carton" used in the notification also would not include the "card board boxes" as was held in the said case. Both the notification and section 13(1) have to be read harmoniously and, therefore, the authorities were not correct in their view. Stand of the learned counsel for the respondents was that section 13 of the Act provides for concessional rate of tax. Proviso to section 13(1) indicates that the State Government may exclude any goods or class or description of goods from the operation of the section. Accordingly, notification dated January 28, 1985 amending earlier notification dated December 26, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serial No. 12 of the notification deals with paper of all kinds and paper products of the enumerated category. Stand of the State that papers of all kinds is included cannot be correct for the simple reason that had same been the intention, there was no necessity for enumerating various paper products. The Notification No. 154 dated January 28, 1985 cannot be pressed into service to take out the effect of section 13(1)(e) of the Act which was inserted subsequently. 7.. Learned counsel for the State additionally submitted that the entry in the notification is intended to include paper of all descriptions and kinds. The definition is an inclusive one and that cannot mean that only paper products of the enumerated category were covered and not other products. No evidence was led to show that in common parlance "card board" and "card board boxes" are different commodities. No evidence relating to common parlance or understanding was filed before any authority. Words of the notification have to be understood taking into account the object for which the same was issued. The reasons for inclusion have been spelt out in the counter-affidavit. Concessional rate of tax was never intended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured goods is expected to exceed the quantum specified in sub-section (1) of section 3 or for mining or generation and distribution of electricity; and in respect of which the purchaser has been granted a certificate by the prescribed authority in the prescribed manner and for prescribed period shall, unless the goods are taxable at a lower rate under section 12 be subject to sub-section (2), leviable to tax at such rate as may be notified by the State Government in this behalf not exceeding 4 percentum: Provided that the State Government may, from time to time by notification in Official Gazette, exclude any goods or class or description of goods from the operation of this section.-................ Section 21. Taxable turnover.-(1) For the purpose of this Part the taxable turnover of a dealer shall be that part of his gross turn- over which remains after deduction therefrom- (a) sale price on account of sales exempted under section 7; (b) amount of sales tax actually collected as such, if any, along with the sale prices received or receivable in respect of sales of goods; (c) sale prices on account of sales to a registered dealer other than a dealer liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e books, exercise books, envelops, labels, letter pads, writing tables and flat files made out of paper." 10.. Description of the goods as indicted in serial No. 12 relates to "paper (of all kinds)" and inclusive definition in clear terms refers to certain paper products. Those which are relevant for our purpose are "cardboard" and "cartons". Had it been the intention to cover paper products of all kinds in the expression "paper" there was no necessity for including definite paper products. At this juncture, it would be proper to note what the article "paper" means: Dictionary meaning of "paper" as given in various dictionaries is as follows: Chamber's Dictionary-A material made in thin sheets as an aqueous deposit from linen rags, esparto, wood-pulp, or other form of cellulose, used for writing and printing, wrapping and other purposes: sometimes extended to similar materials not so made, as papyrus, rice-paper, to the substance of which some wasps built their nests, to card board and even to tin-foil ("silver paper"): a piece of paper. Oxford Dictionary-Substance used for writing, printing, drawing, wrapping up parcels and etc., made of interlaced fibres of rags, straw, woo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging materials, stamps, resin-impregnated laminates, and structural materials. 13.. The Encyclopaedia Americana (International Edition page 261) Paper: A matted or felted sheet of fibers-usually vegetable but sometimes mineral, animal, or synthetic-formed on a screen from a water suspension. The term "paper" is specifically limited to lighter weight, thinner, more flexible sheets formed in this manner. Sheets that are 0.012 inch (0.3 millimeter) or more in thickness, including bristol board, container board, box-board, wallboard, and so forth, are classified as paper board. Paper derives its name from papyrus, a sheet of writing material made in ancient times by pasting together sections of Egyptian sedge (Cypreus papyrus), a marsh plant. 14.. In common parlance, the meaning is not different. 15.. That brings us to the residual question as to whether "card-board box" is covered by the entry "card board". We find that this question was elaborately dealt with in Cardboard products case [1989] 73 STC 438 (Patna). While considering almost identical provision it was found as a fact that "card board box" is not the same as "card board". It is fairly accepted by learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... athered from the construction of the words of the notification or by necessary implication therefrom, the matter is different, but that is not the case here. In this connection we may refer to the observations of Lord Watson in Salomon v. Salomon and Co. [1897] AC 22, 38: "Intention of the Legislature is a common but very slippery phrase, which, popularly understood may signify anything from intention embodies in positive enactment to speculative opinion as to what the Legislature probably would have meant; although there has been an omission to enact it. In a court of law or equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication." 19.. It is an application of this principle that a statutory notification may not be extended so as to meet a casus omissus. As appears in the judgment of the Privy Council in Crawford v. Spooner 6 Moore PC 1 (8): ".......we cannot aid the Legislature's defective phrasing of an Act, we cannot add or mend and, by construction make up defi-iencies which are left there." 20.. The above position w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to show that the earlier notification was intended to be superseded. In that view of the matter, effect of notification dated January 28, 1985 is not taken away by section 13(1)(e) of the Act. 23.. It is next to be considered whether item "carton" appearing at serial No. 12 of the notification would include "card board box". It is correct that in Card Board Products case [1989] 73 STC 438 (Patna) the division Bench of the Patna High Court dealt with this issue. A bare reading of the judgment goes to show that the conclusion was drawn about card board boxes being not carton in view of particular factual background specifically with reference to Explosives Rules, 1940 and 1983. Therefore, in Card Board Products case [1989] 73 STC 438 (Patna) it was factually found with reference to said Rules that the card board boxes to be sold for the purpose of containing explosives were not light pasteboard or card board box but strong card board box. Therefore, a factual determination is necessary. 24.. "Carton" has been defined in various renowned dictionaries as follows: The New Shorter Oxford English Dictionary (Volume I, page 344). Carton A (1)(a): A light card board or pasteboard; ..... 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