9911796707
TMI Blog1981 (2) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... us goods which the petitioner is dealing, one of them is glass marbles which is used as "plaything" by the children. The assessment was completed levying tax at 3 per cent under section 5(1) of the Act. Thereafter, the Deputy Commissioner issued notice dated 24th December, 1975, under section 21(4) of the Act proposing to revise the order of the assessing authority and to bring the turnover of glass marbles to tax at the rate of 6 per cent on the ground that it was glassware falling under entry 109 of the Second Schedule. Aggrieved by that notice dated 24th December, 1975 (exhibit A), the petitioner has presented W.P. No. 7290 of 1975. (ii) Writ Petition No. 7291 of 1975: This petition is also presented under similar circumstances, as stated above, but the order of assessment is dated 26th October, 1972, for the assessment year 1971-72. The notice of the Deputy Commissioner in this case was also issued on 24th December, 1975, and is marked as exhibit A. (iii) Writ Petition No. 7300 of 1975: For the assessment year 1973-74 the assessing authority itself assessed the turnover of glass marbles at 6 per cent on the view that it came under entry 109 of the Second Schedule. The pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is any ambiguity with regard to the interpretation of law or statute. When the facts of the case are quite obvious and glaring, the theory of common parlance has no weight. In the last paragraph of the objection filed by the Advocate he has argued that previous officers and superior officers have not taken up this objection and have appreciated the common parlance theory and it would therefore not be just to raise this issue at this point of time. It can be said that there was no decision by any appellate court previously and it is only in the case of Jaya Frame Works, Davangere v. State of Karnataka (STA No. 408 of 1973 decided on 3rd January, 1974) the Tribunal has held articles made of glass are glassware. When once it is held that glass sheets made of glass are glassware, it can be interpreted that glass marbles are glassware. Considering the objections filed and also after examining the issue, I finally hold that glass marbles are glassware and would be taxed under entry 109 of the Second Schedule to the Karnataka Sales Tax Act, 1957..." 6.. As can be seen from the aforesaid portions of the order, the assessing authority proceeded on the basis that when glass marbles a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , prescribed by the Railway Department in which separate tariff has been prescribed for "glassware" and "glass marbles" at pages 240 and 293 respectively. 9.. The applicability of "doctrine of common parlance" to find out as to whether any particular goods belongs to any particular category or answers any particular description is well-settled. In this behalf, it is sufficient to refer to a decision of this Court in Soundarapandian v. Commissioner of Commercial Taxes [1980] 46 STC 211. In the said case, the question for consideration was as to whether water-colour, poster colour and oil-colour sold ordinarily in stationery shops or book shops and generally used by engineering and drawing students fell under the category of "paints, colours, dyes and varnish" under entry 97 of the Second Schedule to the Act. The case of the department was that the items, water-colour, poster colour and oil-colour were also colours and therefore fell within the category of "colours and paints" used in entry 97 of the Second Schedule to the Act and therefore were liable to be taxed at the rate fixed for the goods mentioned at entry 97. Rejecting the said contention, it was held that in common parlan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orth by the petitioner and not considering the evidence adduced by the petitioner in that behalf. Therefore, the order of the assessing authority impugned in Writ Petition No. 7300 of 1975 is liable to be set aside. 10.. However, as regards the notices issued by the Deputy Commissioner against which the Writ Petition No. 7290 of 1975 and Writ Petition No. 7291 of 1975 have been prescribed (sic), it was open for the petitioner to furnish its reply and to place material before the Deputy Commissioner in the same manner it had done before the assessing authority and if it had done so it was obligatory for the Deputy Commissioner to decide the question applying the principles of common parlance. But the petitioner has approached this Court even before showing cause against the said notice. It cannot be said that the notice issued by the Deputy Commissioner itself was without jurisdiction. Therefore, there is no ground to interfere with the notice impugned in these petitions. 11.. For the reasons aforesaid, we make the following order: (1) In W.P. No. 7300 of 1975: (i) Rule made absolute. (ii) The impugned order of the Commercial Tax Officer, 3rd Circle, Bangalore, dated 29t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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