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TMI Blog1979 (2) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... ns specified therein." SCHEDULE I "23. Fresh fish. 25.. Meat except meat which is cured or frozen." With respect to these entries extracted above, the question which arises for consideration is what is the meaning to be attributed to the terms "fresh fish" and "frozen meat". We may notice the facts with respect to T.R.C. Nos. 39 to 41 of 1978 in which the main arguments were advanced. T.R.C. Nos. 39 to 41 of 1978 The assessment years involved in these cases are 1968-69 to 1970-71 (both inclusive). The assessee was a dealer, among other things, of meat stored in its cooler or refrigerator. The question was whether it was entitled to exemption under entry 25 of the notification quoted supra or was outside the scope of the said entry by reason of the meat being frozen meat which is excepted from the scope of the exemption. The Sales Tax Appellate Tribunal held that the meat in question was frozen meat and therefore fell outside the exemption. The aggrieved assessee has filed these tax revision cases. 2.. The principle of construction to be adopted in such cases is, we should think, well-settled. The test should be: How is the commodity, "frozen meat", understood by the world of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rstood in common parlance. It has not been defined in the Act and being a word of every day use it must be construed in its popular sense meaning "that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it".' The Supreme Court referred to the Canadian decision above-mentioned as well as to the decision of the High Court of Madhya Pradesh in Madhya Pradesh Pan Merchants' Association, Santra Market, Nagpur v. State of Madhya Pradesh[1956] 7 S.T.C. 99., wherein that court said: 'In our opinion, the word "vegetables" cannot be given the comprehensive meaning the term bears in natural history and has not been given that meaning in taxing statutes before. The term "vegetables" is to be understood as commonly understood denoting those classes of vegetable matter which are grown in kitchen gardens and are used for the table. The above test has been applied by the Supreme Court in two more cases, Ram Bux Chaturbhuj v. State of Rajasthan [1961] 12 S.T.C. 330 (S.C.). and Motipur Zamindary Co. (Private) Ltd. v. State of Bihar[1962] 13 S.T.C. 1 (S.C.)." 3.. In Unwin v. Hanson[1891] 2 Q.B. 115 at 119., Lord Esher, M.R., stated: "Now wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into or covered with ice, or become rigid as result of cold'. In the Random House Dictionary of the English Language, the word 'freeze' has been given the meaning 'to subject something to freezing temperature, place something in a freezer or in the freezing compartment of a refrigerator'. It might be noted here that what is exempted under the notification concerned is unlike in the case of fish not fresh meat as such but meat which is not cured or frozen. Mr. Varkey, the learned counsel for the petitioner, invited my attention to certain observations in a Russian publication 'fish curing and processing', where the word 'frozen' is given a technical meaning as being kept at temperature very much below 0ºC. It was pointed out by him that for properly freezing fish or meat the temperature should be far below 0ºC and, therefore, keeping meat in a fresh state in cold storage where the minimum temperature cannot be less than 0ºC would not amount to freezing the meat and the meat kept there cannot be said to be meat 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... º to 0ºC). Beef can be stored for 1 to 6 weeks in the range of 32º to 34ºF (0º to 1.1ºC) or for 9 to 12 months if frozen and held between -10º and 0ºF (-23º to -18ºC). Eggs, in their shells, can be kept 6 to 9 months at temperatures of 29º to 31ºF (-1.6º to -0.6ºC). Fish can be held for 5 to 15 days at 31º to 33ºF (-1.7º to 0.6ºC) or for 8 to 10 months when frozen and held below 0ºF (-18ºC). Lettuce at 32ºF (0ºC) can be held 3 to 4 weeks, milk at 33ºF (0.6ºC) for 7 days, and ice-cream at -15ºF (-26ºC) for 6 to 8 months. Bananas require special treatment. They are picked unripe and are allowed to ripen slowly at temperatures of slightly above 55ºF (13ºC)." "Cold storage warehouses: The cold storage plants of large distribution systems have low-temperature rooms for freezer storage and higher-temperature rooms for non-frozen storage. The storage rooms often run to 25 feet (7.6 metres) in height. The walls, floor and ceiling of the freezer rooms are provided with heavy insulation. Fans are used to direct chilled air around the product and provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od for centuries where outdoor freezing temperatures were available. With the development of mechanical refrigeration and of the quick-freezing processes, the frozen-food industry has expanded rapidly. Even in the home, the freezing of foods has become extensive; now that home deep-freezers are readily available. Under the usual conditions of storage of frozen foods microbial growth is prevented entirely and the action of food enzymes is greatly retarded. The lower the storage temperature the slower will be any chemical or enzymatic reactions, but most of them will continue slowly at any temperature now used in storage. Therefore, it is a common practice to inactivate enzymes of vegetables by scalding or blanching prior to freezing when practicable." 6.. In the "Freezing Preservation of Foods" by Donald K. Tressler and Clifford F. Evers, Vol. I, page 80, occurs the following: "Since its inception in 1861, sharp freezing has been the most popular and widely used method of freezing. It has been of tremendous value to the world, and the industry in the United States has grown to huge proportions. In general, it consists of placing products to be frozen in a very cold room, maintaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y sensitive to freezing and must always be kept slightly above 32ºF. Bananas must not be chilled below 55ºF (13ºC), or the ripening process stops. Cold-storage warehouses usually have a central refrigeration plant of the vapour-compression type in which the evaporator cools a salt or glycol brine; the brine is pumped to the various storage rooms, where it flows through coils to hold the room at a required temperature. Frozenfood rooms operate frequently in the range of -20º to 0ºF (-29º to -18ºC). It is more desirable, however, to maintain a temperature with a minimum of variation." 8.. In the light of the position expounded by the treatises above referred to, it appears to us that "frozen meat" as understood in the commercial sense or as known to the world of trade and commerce, is meat frozen by keeping it at very low temperature much below the freezing point of water under conditions dealt with in the treatises. Merely because meat is kept for a short period of time in a refrigerator or a cold freezer or a cooler at the temperature at which water forms into ice, we do not think we can regard it as "frozen meat" in the commercially understood s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined free from decomposition because of the freezing process and the attendant packing and cold storage, and in that sense were fresh when ultimately received by the railway company for carriage. It makes no difference, so it is argued, to the title to regard the fish as fresh that a long time, in which under ordinary circumstances they would have become decomposed, has elapsed before they are brought for transit by rail in England. For they have remained as they were when caught. For myself I cannot regard this contention as sustainable. I think that it was quite natural that the railway company should mean to obtain a higher rate for carrying fish which, being fresh in a different and ordinary sense, would perish if there was delay in transit. They might well claim a higher charge in the classification which the statute has sanctioned for fresh fish of this kind including salmon. But in the case of the salmon in question it does not appear that the unusually rapid carriage is of importance or is demanded. The delay is of little moment. The real reason for accepting a lower rate for 'preserves' which include fish is surely that there is no occasion to be in a hurry with fish that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eatment or process which has to some extent changed its original character. My Lords, I see no reason for this limitation. The guiding words of the classification refer primarily to the method of packing in casks, boxes, or cases which determine convenience for handling and dispatch. Where preserves are packed in crates or baskets, they are placed under class 3. Your Lordships were referred to the general railway classification of goods, which strongly supports the contention of the appellants. Under the heading 'fish' appears the entry 'Fish, Preserved-(see Preserves)', and under 'Preserves' the fish may be either in glass or earthenware jars or bottles packed in casks, or directly packed in casks or boxes, again implying that the distinction is not so much in the method of preservation as in the method of packing. In my opinion the frozen salmon comes within the words 'Preserves (fish) in casks or boxes' and are classified to be charged under class 2. There is no ground for adopting the narrow interpretation which would exclude from this class an article which has been preserved without undergoing some change in its original character." In these tax revision cases, the counsel h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of "frozen meat". For the year 1974-75, exhibit P1(e) notice was issued, to the effect that in his provisional assessment for that year, the turnover of frozen meat was wrongly exempted, proposing to revise his provisional assessment for that year and inviting objections. Exhibit P2 is a copy of the objection filed by the assessee to the notice, in respect of the assessment year 1973-74. To quash these notices, the writ petition was filed. Pending O.P. assessment orders, exhibits P5 to P5(e), were issued. By the amendment carried out in the original petition, these orders were sought to be quashed. 2.. The learned Judge allowed the writ petition in part, holding that the assessee was entitled to exemption in respect of "fresh fish" kept in cold storage, but not in respect of "frozen meat" also kept in cold storage. 3.. The appellant's counsel in W.A. No. 107 of 1976 associated himself with the argument of the revision petitioners in Tax Revision Cases Nos. 39 to 41 of 1978. Besides the cases cited by the counsel for the revision petitioners in the tax revision cases, in support of the interpretation of the terms in the commercial sense, counsel also placed reliance on the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the exemption granted by the Tribunal in respect of the turnover of "fresh fish". The contention of the learned Government Pleader for the appellant is that fish kept in cold storage or in refrigerator is not "fresh fish" and would not therefore be eligible to the exemption covered by entry 23 of the exemption notification. The learned Government Pleader argued that, under section 5 of the Sales Tax Act, liability for sales tax is on the turnover of the sales and it is immaterial whether the dealer has not collected sales tax or cannot recover the same from the customers. In support of the proposition, he placed reliance on Rai Ramkrishna v. State of Bihar[1963] 50 I.T.R. 171 (S.C.); A.I.R. 1963 S.C. 1667. The proposition is well-settled and need not detain us long. But that does not carry the matter any far. 4.. It was contended that the expression "frozen meat" and "fresh fish" must be understood as in common parlance, and not in any commercial sense. In the light of the authorities cited and which we have noticed already, we cannot accept this position. It was further contended that, even accepting the commercial sense, a refrigerator consists of a freezer and a cooling ..... X X X X Extracts X X X X X X X X Extracts X X X X
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