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TMI Blog1976 (2) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... hereto appended in regard to the turnover on the sales of goods specified therein subject to the conditions also specified therein. In Schedule I of the appendix to this notification item 23 is fresh fish and item 25 is meat except meat, which is cured or frozen. The main questions raised in the 0. P. are: What are the meanings of the expressions "fresh fish" and "frozen meat", and whether meat and fish preserved by the petitioner-firm in its cold storage by refrigeration would be liable to the incidence of sales tax in the light of the notification concerned. The petitioner-firm is carrying on the business of selling meat and fish among other things like honey, vinegar and frog ghee. The petitioner is registered as a dealer under the Act and holds a licence from the Central Government for the purpose of running a cold storage. The petitioner has a cold storage which keeps intact meat and fish for a few days. According to the petitioner, the temperature in the cold storage is maintained at a level not lower than 0 C by means of a cooling machine. The petitioner was assessed to sales tax for the years 1971-72, 1972-73, 1973-74 and provisionally for 1974-75 and the taxes were p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating the turnover alleged to have escaped assessment, included the turnover relating to the sale of fish and the rent for keeping the stuff in the cooler. The petitioner-firm had forwarded to the second respondent the statements dated 29th January, 1975, showing the breakup wise sales turnover of meat and fish and the rent collected for keeping the stuff in the cold storage for the years 1971-72, 1972-73, 1973-74 and 1974-75. Overruling the objections the second respondent reopened the assessments and assessed to tax the alleged escaped turnover in respect of all the years concerned. Exhibits P-5(a) to P-5(e) are the true copies of the said assessment orders as marked in the case. The assessments took into account not only the turnover regarding meat but also that relating to fish and that of the rent collected by the petitioner-firm for keeping the stuff in the cooler. The petitioner seeks to quash exhibit P-5 assessment orders on various grounds. It is said that the petitioner does not sell frozen goods. The petitioner-firm has no equipment to freeze meat. They sell only fresh meat, which does not come within the ambit of the expression "meat which is cured or frozen" and fis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances of this case, especially in view of the fact that the Sales Tax Appellate Tribunal in Tribunal Appeal No. 729/73 has already taken a definite view on the main questions raised in this O.P., the alternative remedy provided by the statute will not be an equally efficacious remedy. Also if the petitioner's contentions are acceptable, it cannot be denied that the assessing officer has clearly committed errors of law apparent on the face of the record which would invite the exercise of the extraordinary jurisdiction of this court under article 226 of the Constitution of India. The first question that I would deal with is whether the rental collected by the petitioner for keeping meat and fish in their cooler would invite the incidence of the tax. As no element of sale is involved therein, I think the second respondent has erred in imposing the sales tax with respect to the same. Under S.R.O. 342/63 sale or purchase of fresh fish is exempted from the tax payable under the Act. Is fish preserved by the petitioner-firm in its cold storage by refrigeration fresh fish? According to the petitioner, it continues to be fresh fish. According to the revenue, only fish that comes ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dopt such a construction as is based on the assumption that Parliament merely intended to give so much power as was necessary for carrying out the objects of the Act and not to give any unnecessary powers. In other words, the construction of the words is to be adopted to the fitness of the matter of the statute'." The test that has to be applied is what would be the meaning which a person dealing with the goods concerned would give to that word. A sales tax statute, being one levying a tax on goods, must, in the absence of a technical term or a term of science or art, be presumed to have used an ordinary term according to the meaning ascribed to it in common parlance. The word "fresh" will have slightly varying meanings in the context in which it is used. The word "fresh" as such means "new, novel, not previously known", etc. The words "fresh fish " or "fresh meat" or "fresh fruit" would indicate in common parlance fish, meat or fruit which is not stale, musty or vapid-see the meaning of the word "fresh" in Concise Oxford Dictionary. No doubt the words "fresh meat" or "fresh fruit" in some context may also mean meat or fruit "not preserved" by salting, pickling, smoking, tinning, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zing the meat and the meat kept there cannot be said to be meant frozen. It is pointed out that the petitioner's cold storage is not a freezing unit and, therefore, incapable of freezing "meat" or "fish". Refrigeration is the process of lowering the temperature inside an insulated enclosure by extracting heat and rejecting it to the surroundings or some other external medium of higher temperature. "Freezing" in the ordinary parlance, as per the meaning given by the Concise Oxford Dictionary, would take in the meaning "preserve meat, etc., by refrigeration". Therefore, meat kept in the cold storage where the temperature would come to a minimum of 0 C for the purpose of preserving the same by refrigeration would certainly come within the expression, "meat", which is frozen. Therefore, I do not find anything illegal in the matter of the assessment made on the turnover regarding meat regarding which section 19 notice had been issued to the petitioner. I see no reason to reject the contention of the department that meat preserved by refrigeration will also come under the term "frozen meat". In view of the conclusion I have arrived at, I would direct the second respondent to reasse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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