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TMI Blog1971 (2) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... here was a conflict of decisions on the point involved in the reference, it was ordered to be placed for hearing before a Full Bench. This is how the case has come up before us. 3.. The facts stated in the reference are that M/s. Narang Industries of Indore, the assessee, sold phawadas worth Rs. 7,611 during the account year 1962-63. The sales of phawadas were taxed by the Sales Tax Officer holding that Phawadas do not come within the description of "hoe", which is an item exempt from tax under a notification issued by the Government. The Appellate Assistant Commissioner, in first appeal, also took the same view, but the Tribunal, in second appeal, came to a different conclusion. It was held by the Tribunal that Phawadas are hoes and are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nternational Dictionary a hoe is "an agricultural implement that usually consists of a thin flat blade set transversely on a long handle and is used especially for cultivating, weeding or loosening the earth around plants.' Similarly, the Oxford English Dictionary defines hoe as "an agricultural and gardening tool, consisting of a thin iron blade fixed transversely at the end of a long handle used for breaking up or loosening the surface of the ground, hoeing up weeds, covering plants with soil, and the like." The Webster's Dictionary gives also a drawing illustrating hoe, which entirely resembles the phawada commonly used by agriculturists in our country. In a book entitled "Agricultural Engineering for Extension Workers" published by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words "shovel" and "spade" in the Oxford Dictionary. As already said the Hindi word "Phawada" is also used to convey the meaning of a shovel or spade. Reference in this connection may be made to Nalanda Current Dictionary (English to Hindi), where phawada is given as one of the synonyms of all the three English words hoe, shovel and spade. A spade which is used for digging, paring or cutting ground or turning soil is a garden instrument and may fall within the description of "agricultural implements". But yet it would be difficult to say that a spade comes within the description of hoe, for there is a marked distinction between these two implements. Similarly a shovel which is also very much dissimilar from hoe cannot be brought within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng material and for mixing sand, cement, lime etc. with boulders and gittis. With respects, we are unable to agree with this line of reasoning. 7.. The power of the State Government under serial No. 1 of Schedule I is to specify agricultural implements. Now, what types of implements are used by the agriculturists in the State which can be classified as agricultural implements is a matter on which the State Government can be presumed to have adequate information and it is expected that the Government will not specify any implement for purposes of serial No. 1 of Schedule I, unless it is satisfied that such an implement is really an agricultural implement. To begin with, there is always a presumption that a statutory power is validly exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied instrument is also used in a trade or calling other than agriculture. Thus, although it is true that Phawadas are also used by building contractors or Public Works Department for spreading and mixing mortar, concrete or similar substances, that cannot negative the presumption that phawadas that are hoes are agricultural implements, for, such phawadas are also commonly used by agriculturists in agricultural operations. It is quite possible that an instrument may be commonly used in agriculture and also in some other trade. But even in that case, if the instrument is specified by the State Government as an agricultural implement, it must be held to be so and it would not at all be necessary to enquire whether the instrument is principall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... once an implement is specified in the notification, it is exempt from tax and it is not necessary to enquire further whether the implement is an agricultural implement or whether it is exclusively used for agricultural purposes. In this connection, we have already said that the result of specifying an implement in the notification is that there is a strong presumption that the implement is an agricultural implement. But that does not mean that the notification is conclusive. The power of the State Government under serial No. 1 of Schedule I is only to specify agricultural implements by a notification. If something which is obviously not an agricultural implement is specified to be so by the State Government, the Government would be acting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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