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TMI Blog2008 (8) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... e rate of 15 per cent. The case set out by the dealer applicant was that the tinted sheet glass is nothing but "glass" in its primary sense and as such it is covered by the notification no. 5784 dated 7-9-1981. The contention of the dealer has not found favour by any of the three authorities below including the tribunal. Challenging the order of the tribunal dated 22nd August, 2003, the present revision has been filed under Section 11 of the U.P. Trade Tax Act. In the memo of revision the following six questions have been framed :- (i) Whether the entry "All goods and wares made of glass", excludes plain glass panes and treated the same as unclassified item, the Trade Tax Tribunal and lower authorities were justified to tax tinted/plain glass panes as declared commodity? (ii) Whether in view of common parlance as well as user of the tinted/coloured glass panes and plain glass panes are identical, in spite of that the tax has been imposed on the coloured/tinted glass panes as declared commodity instead of unclassified item? (iii) Whether plain glass panes does not cover tinted/coloured glass panes? (iv) Whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ass in its primary sense it cannot be said that the tinted glass sheet is "goods" "wares" made of glass. The learned standing counsel, on the other hand, supports the order of the tribunal and submits that the findings recorded by the tribunal that the tinted sheet glass is goods and wares made of glass is correct and it is essentially a finding of fact and does not suffer from any error either of law or fact. The submission is that the controversy presently involved in the revision stands concluded by Division Bench decisions of this Court in U.P. Glass Works Limited v. C.S.T., U.P. Lucknow, 1973 UPTC 352 and Tarkeshwar Nath Agrawal v. C.S.T. 1975 U.P.T.C. 343. Considered the respective submission of the learned counsel for the parties and perused the record. It will be of some use to notice the legislative history of the Entry as given in the revision, and reproduced below :- (i) Glasswares 1-4-48 to 31-3-56 (ii) Glasswares other than Hurricane Lantern, chimneys, optical lenses and bottles. 1-4-56 to 19-5-76 (iii) All the goods and wares made of glass but not including plain glass, panes, opticals lenses, Hurricane lantern, chimneys, bottles and phials glass beads, clini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench in para 7 noticed that undoubtedly there is distinction between glass, goods or articles made of glass. After doing so, it quoted a passage from the order of the Board wherein it was held by the Board that glass sheet, is glass simplicitor. Glass sheet is, therefore, according to the Full Bench a primary product which can be used for producing the goods or articles made of glass and it cannot be equivated with goods, or articles made of glass. The Full Bench expressed its dissent with the decision reported in Commissioner of Sales Tax, Madhya Pradesh, Nagpur v. Mohanlal Ramkisan Nathani (1955) 6 STC 136 and Tribuwandas Gulabchand and Brothers, Nagpur v. State of Maharashtra (1965) 16 STC 452 (Bombay) and CST v. Bombay Glasshouse (1986) 63 STC 350 (M.P.). The Full Bench was of the opinion that in these decisions, it was not taken "into account that the glass sheet in common parlance is glass simplicitor" and glass sheet is a primary product used for producing articles or goods made of glass. Glass sheet is a primary product." This distinguishes the case from the facts of the present case. 11. Whether the glass sheet is a manufactured glass sheet in the shape of finished c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not with regard to the taxability of plain glass sheet but is with regard to the tinted glass sheet. It is still worst. A serious attempt was made by the learned senior counsel on behalf of the dealer that so far as manufacturing process is concerned, there is no material difference in manufacture of plain sheet glass and that of 'coloured sheet glass'. By mixing (1) cobalt oxide (2) Nickel Oxide and Iron Oxide etc. in the manufacturing process of glass sheet, the tinted glass is produced. The commodity remains the same i.e. a plain glass sheet, submits the learned counsel. In support of the above proposition, reliance was placed on Gujarat Steel Tubes Limited and others v. State of Kerala and others, 1999 UPTC 1072 and M/s. Maqsood Mohammad v. The State of U.P. and another, 1977 U.P.T.C. 518 and certain other decisions. These decisions have hardly any application to the controversy involved in the present case. In the case of Gujarat Steel Tubes Ltd. it was held that the purpose of galvanised pipe is merely to make it weatherproof. It remains a steel tube. By being put through the process of galvanising it is made rust proof. Neither its structure nor function is altered. As a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Tax Authorities, is a species of edible salt and comes within the ambit of the word 'salt' occurring in Section 4(1)(a) of the Act. It follows that the impugned notification of the Government which seeks to exclude Kala Namak from the exemption granted under Section 4 of the Act is clearly ultra vires of the Act to that extent." 17. As is apparent, the observations made therein were made in a different factual set up. The controversy involved therein was totally different. Even otherwise also somewhat a different view has been taken by the Apex Court in the case of CST v. Agra Belting Works - 1987 (32) E.L.T. 251 (S.C.) = (1987) 66 S.T.C. 1 (S.C.) = 1987 (3) SCR 93. However, it is not necessary in this case to dwell upon any further. 18. Reference was also made to unreported judgment in Sales Tax Revision No. 1560 of 1991 CST v. Harakchand and Sons decided on 6th of April, 2004 wherein question of taxability of figured glass as a glass sheet was raised. The finding recorded by the tribunal was that the figured glass and glass sheet is produced by same process and from the same raw material. The only difference between the plain glass and figured glass as found by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said purpose, put itself in the chair of the legislature. It would presume the "legislation" to be reasonable. [See Mauri Yeast India P. Ltd. v. State of U.P. (2008) 5 SCC 680, a case under the U.P. Trade Tax Act, interpreting "chemicals of all kinds"]. 21. Then, contended that the tinted glass sheet is liable to be excluded as it is nothing but is plain glass panes. Reference was made to the Dictionary meaning of words "plain" and "panes" as given in Webester's Encyclopaedic Unabridged Dictionary 1989 Edition. Plain (plan) adj. 1. clear or distinct to the eye or ear: a plain trail to the river, to stand in plain view. 2. clear to the mind; evident, manifest, or obvious; to make one's meaning plain; a dislike of the subject that was plain. 3. conveying the meaning clearly and simply; easily understood; plain. 4. downright; sheer; utter; plain folly; plain stupidly. 5. free from ambiguity or evasion; candid; outspoken; the plain truth of the matter. 6. without special pretensions, superiority, elegance, etc.; ordinary; plain people. 7. not beautiful; physically unattractive or undistinguished: a plain face; a childhood fear that she would be plain. 8. without intricates or d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aratji Agrawal, the learned senior counsel, on the other hand, submits that the word 'plain' here means 'even surface'. According to him the adding of colour in the glass sheet will not take away the glass sheet out of the ambit of exclusion clause of the aforesaid Entry. 24. The said issue can be resolved from the point of view as to how the persons who are in the business understands the meaning of 'plain glass sheets'. In commercial words, as noticed by the tribunal, plain glass sheets means colourless glass or having a colour of water. The tribunal has noticed that a dealer of glass sheet, is not required to exhibit all kinds of sheet glass including coloured one when a customer demands plain glass sheet. Unless a coloured glass is asked for, a dealer exhibits the (uncoloured) plain glass sheet. The said finding of the tribunal is essentially a finding of fact. In common parlance also, in window and doors, plain glass sheet i.e. uncoloured glass sheets are used generally. These glass sheets are also used as table top, in showcase and also as racks in Almirah. It may be noted that only plain glass sheets which is not coloured is used generally. 25. Neither the dictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such added materials is termed as 'clear' glass, even though the finished product may not be transparent in the ordinary sense as a result of the pattern furnished (wired, corrugated, figured). 2.2 Sheet Glass - Transparent, flat glass having glossy, fire-finished, apparently plane and smooth surfaces, but having a characteristic waviness of surface." The description of 'glass' and 'glass sheets' in the Indian Standard Specification supports the view which I am proposing to take rather advancing the case of the applicant. Sheet glass has been described as 'flat glass' having glossary, fire finished, apparently plain and smooth surfacing. Evidently, it does not include tinted sheet glass. A very interesting question arose before the Apex Court in M/s. Indo International Industries v. Commissioner of Sales Tax, U.P. 1981 UPTC 481. The question was whether hypodermic clinical syringes, thermometers and lactometers are glasswares or are liable to be taxed as hospital equipments. In this connection the Apex Court has held that it is true that the Dictionary meaning of the expression "glassware" is "article made of glass". However, in commercial sense glassware could never com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 28. Another limb of the argument of Shri Bharatji Agrawal, learned senior counsel for the applicant, is that burden is upon Revenue to show that a particular item falls in a particular Entry. In this connection, strong reliance was placed by him on Ponds India Limited (supra). He further submits that in the earlier assessment years the assessing authority had treated the "tinted glass sheet" as plain glass sheet, this year also, the commodity in question should be treated accordingly. It is difficult to agree with him. The cases are to the effect that recourse to a residuary Entry should be taken by way of last resort. In this connection, a recent judgment of Apex Court in Mauri Yeast Pvt. Ltd. v. State of U.P. and another (2008) 5 SCC 680 (para 34), is useful. It reads as follows :- 34. "It is now well settled principle of law that in interpreting different Entries, attempts shall be made to find out as to whether the same answers the description of the contents of the basic Entry and only in the event if it is not possible to do so, recourse to the residuary Entry should be taken by way of a last resort." More or less, similar observation can be found in H.P.L. 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