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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 ..... t 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 trade and commerce; what is the meaning attributed to the expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 when we have to consider the construction of words such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 0 C. It was pointed out by him that for properly freezing fish or meat the temperature should be far below 0 C and, therefore, keeping meat in a fresh state in cold storage where the minimum temperature cannot be less than 0 C 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 the process of lowering the temperature inside an insulated enclosu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C). Eggs, in their shells, can be kept 6 to 9 months at temperatures of 29 to 31 F (-1.6 to -0.6 C). Fish can be held for 5 to 15 days at 31 to 33 F (-1.7 to 0.6 C) or for 8 to 10 months when frozen and held below 0 F (-18 C). Lettuce at 32 F (0 C) can be held 3 to 4 weeks, milk at 33 F (0.6 C) for 7 days, and ice-cream at -15 F (-26 C) for 6 to 8 months. Bananas require special treatment. They are picked unripe and are allowed to ripen slowly at temperatures of slightly above 55 F (13 C)." "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 provisions are made to minimise the desiccation, or drying, of the food." In the treatise on Food Microbiology by W.C. Frazier, Professor Emeritus of Bacteriology, University of Wisconsin, the following is stated: "Freezing of foods.-The rate of freezing of foods depends upon a number of factors, such as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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, maintained at temperatures varying from -5 to -20 F. Although the air within the room will circulate by convection, usually no provisions are made for forced circulation. The relatively still air is a poor conductor of heat and foods placed in even these low temperatures are frozen comparatively slowly, many hours or even days being required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils to hold the room at a required temperature. Frozenfood rooms operate frequently in the range of -20 to 0 F (-29 to -18 C). 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 sense of the term. There is an interesting disquisition on the concept of "frozen meat" in William Warner's Sons and Company v. Midland Railway[1918] A.C. 616 (H.L.). Lord Finlay, L.C., said: "My Lords, the question in this case is whether salmon from Alaska and from British Columbia to this country is 'fresh fish' for the purpose of a rate to be charged for railway carriage, and, if not, under what clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 will not perish. In their own general classification in detail as advertised for the guidance of traders they specify 'fish preserved' as to be carried cheaply, and refer for the meaning of the item to the 'preserves,' inclusive of fish in boxes, described in another part of their list. I think that in so doing they show that they mean to include under 'preserves' fish preserved from decomposition and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 had formulated the following questions of law in the memorandum of revisions: "(a) Whether, on the facts and in the circumstances of the case, the Tribunal's decision that the meat sold by the petitioner is 'frozen meat' is correct? (b) Whether, on the facts and in the circumstances of the case, the Tribunal erred in disallowing the petition filed by the petitioner to adduce additional evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decisions of the Supreme Court in Avadh Sugar Mills Ltd. v. Sales Tax Officer, Sitapur[1973] 31 S.T.C. 469 at 470 (S.C.); A.I.R. 1973 S.C. 2440 at 2441, para 3., Commissioner of Incometax, A.P. v. Taj Mahal Hotel, Secunderabad[1971] 82 I.T.R. 44 at 47 (S.C.); A.I.R. 1972 S.C. 168 at 170, para 6. and Commissioner of Sales Tax, M.P. v. Jaswant Singh Charan Singh[1967] 19 S.T.C. 469 at 472 (S.C.); A.I.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 plant and that meat kept for preservation in the freezer or cooling plant must be regarded as "frozen meat"; and fish kept therein must be regarded as other than "fresh fish". In the light of the treatises which have discussed the process and the techniques of freezing of fish and meat, we are unable to accept this contention of the learned Government Pleader. Our attention was called to Volume 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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