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TMI Blog1986 (12) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... ), as a cattle feed; whereas, in short, the submission advanced on behalf of the State is that the effect of exemption notification dated 26th December, 1977, is taken away because a retroactive notification (with effect from 26th December, 1977) was issued on 9th March, 1978 (Notification No. 3320), which made "bran" exigible to tax. [It will be most pertinent to note that in annexure 1 to C.W.J.C. No. 2725 of 1984; in item No. 35, explanation (i) to (iii) has been wrongly typed as this explanation was inserted by Notification No. 3322 dated 9th March, 1978 retrospectively from 26th December, 1977.] In other words, the submission on behalf of the State is that the retroactive notification of 9th March, 1978 (No. 3320) inferentially and by implication taxes bran by superseding the exemption notification. The submission on behalf of the State also was that an evidence of intention to tax bran should be read or inferred by implication by allowing the notification of rate of tax or exigibility in order to override the exemption. 6.. The petitioners claim (in C.W.J.C. No. 2725 of 1984), by a petition dated 29th March, 1984, that no sales tax was leviable on the sale of wheat bran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is quoted as below: "No. Bikrikar/San. 1026177-14547 dated the 26th December, 1977. In exercise of the powers conferred by clause (a) of sub-section (3) of section 6 of the Bihar Sales Tax Fifth Ordinance, 1977 (Bihar Ordinance No. 257 of 1977), the Governor of Bihar, in supersession of all previous notifications in this regard, is pleased to exempt the sale of goods specified in the second column of the Schedule annexed hereto from the levy of 'sales tax' subject to the conditions and restrictions, if any, set out in the corresponding entry in the third column thereof. SCHEDULE -------------------------------------------------------------------------------- Serial No. Description of goods Conditions and restrictions subject to which exemption has been allowed -------------------------------------------------------------------------------- 1 2 3 -------------------------------------------------------------------------------- * * * 35. Cattle feed and poultry feed. * * * -------------------------------------------------------------------------------- 2.. This notification shall come into force with effect from 26th December, 1977." (B) Notification date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -------------------------------------------------------------------- 1 2 3 ---------------------------------------------------------------------------- "Pashuchara thatha kukutchara" Spashtikaran: Pashuchara thatha kukutchara se abhipret hai- (1) Gayayon ke liye pelets yevam mash concentrates (2) Sugar maash yevam pelets. (3) Layers, growers cheeks, yevam bierlers ke liye kukut maash yevam pelets. (4) Kukut kadya concentrates. 2. Yah adhisuchna 26 December, 1977 se prabavi samji jayegi. Bihar Rajyapal ke aadesh se Abu Hakim Vanijya kar aayukth-saha-paden vishesh sachiv. *San Vi. kar/BB-12215/77-3323, 9 March, 1978. Adhisuchna sankya 3322, dinank 9 March, 1978 ke angrezi me nimnalikith anuvad Bihar Rajyapal ke pradikar se iske dwara prakashit kiya jatha hai jo Bharat Savdan ke anuched 348 ke kand (3) ke adin angrezi bhasha me uska pradikrit pat samja jayega. Bihar Rajyapal ke aadesh se Abu Hakim Vanijya kar aayukth-saha-paden vishesh sachiv. No. Bikrikar /BB/12215/77-3322 dated the 9th March, 1978. In exercise of the powers conferred by clause (a) of sub-section (3) of section 6 of the Bihar Sales Tax Fifth Ordinance, 1977 (Bihar Ordinance No. 257 of 1977), the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : ----------------------------------------------------------------------------- 1 2 3 ----------------------------------------------------------------------------- * * * 35. (1) Pellets and mash concentrates for cattle. (2) Pig mash and pellets. (3) Poultry mash and pellets for layers, growers, chicks and broilers. (4) Poultry feed concentrates. 3.. This notification shall come into force with effect from 1st July, 1985." [I must mention here that neither of the parties made this notification of 29th June, 1985 (S.O. 611) an annexure either to the writ petition or to the counter-affidavit, but this notification was produced before the court at the time of argument.] 10.. Thus, a look at the Notification No. 14547 dated 26th December, 1977, shows that, amongst others, "cattle feed" and "poultry feed" were exempted from levy of sales tax without any condition or restriction being imposed as per column 3 of the Schedule to the notification and the said notification came into force with effect from 26th December, 1977. Thereafter on 9th of March, 1978, came two of the notifications-one being No. 3320 and the other being 3322. These notifications were also publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 5 and 5(1) of C.W.J.C. No. 2725 of 1984]. 13.. As already stated above, Notification No. 14547 dated 26th December, 1977, does exempt "cattle feed and poultry feed" from the levy of sales tax. The learned counsel for the petitioners submitted that wheat bran was essentially a cattle feed and as such came under item 35 of the list of exemptions-vide Notification No. 14547 dated 26th December, 1977, and hence was not exigible to any sales tax. The learned counsel for the petitioners submitted that the explanation put by the State Government by Notification No. 3322 dated 9th March, 1978, only explained the words "cattle feed and poultry feed" and it neither restricted nor *Words in Hindi translitered in English. extended the meaning of the words "cattle feed and poultry feed". In short, the submission was that the purpose of adding the explanation was only to explain the word "cattle feed and poultry feed" and hence no tax was leviable on the sale of the aforesaid goods. 14.. Earlier to Notification No. 14547 dated 26th December, 1977, "cattle feed" was liable to be taxed under the sales tax but the notification dated 26th December, 1977, exempted it from the leviability of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay that wheat bran is essentially a cattle feed. Yours faithfully, Sd/- 14/10. Joint Secretary to Government." My attention was also drawn to another letter of the Government of Bihar dated 15th October, 1985 (annexure 8 to the supplementary affidavit filed by the petitioners). The petitioner itself had, by its letter dated 14th October, 1985, asked for a clarification on the subject and the Government of Bihar through its Joint Director, Cattle feed, Animal Husbandry Department, clarified that to the following effect by his letter dated 15th October, 1985. It is again pertinent to quote reply by the Government of Bihar itself by way of clarification sought for. *"Upayukth vishayak aapke patrank dinank 14-10-85 ke prasang men soochit karna hai ki chokar pasu aahar hai". 17.. My attention was further drawn to another letter (annexure 9 of the supplementary affidavit filed by the petitioners) from the Director, U.S. WHEAT ASSOCIATES, dated 17th February, 1986, addressed to the Executive Director of Shree Madhav Roller Flour Mills (P.) Ltd. The learned counsel for the petitioners, while drawing my attention to this letter submitted that the U.S. Wheat Associates, New D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le wheat flour only. Bread cannot be made out of wheat bran only. Wheat bran is only used as a cattle feed. Sd/K.K. Gupta. (Dr. Ing. K.K. Gupta)" The learned counsel for the petitioners also referred to a letter dated 3rd February, 1986, written by Shri Sarayu Sinha, Private Secretary to the Minister of Revenue and Land Reforms and Relief Rehabilitation Department, Government of Bihar. This letter is dated 3rd February, 1986 and has been marked as annexure 11 to the supplementary affidavit filed by the petitioners. It is again pertinent to quote this letter: *Dinank 3-2-86 Vyavasthapak, Sri Madhav Roller Flour Mills P. Ltd., Patna City, Patna. Mantri rajasva evam bhumi sudhar ke pas kayi gaye aur bachde hai jinke kane ke liye chokar ki avasyakta hai. Kripaya pratimah panch bora chokar mulya lekar dene ki vyavastha ki jai. Sd/Sarayu Sinha; 3-2-86. (Sarayu Sinha) In support of the submissions that in common commercial parlance also wheat bran was understood and was known as "cattle feed", my attention was drawn to an affidavit (annexure 12 to the supplementary affidavit filed by the Accountant of one Shri Krishna Goshala, Patna City). This affidavit is dated 21st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.. That I am the partner of the firm M/s. Chiranji Lal Bishwanath, Hazaribagh. 2.. That my firm is mainly dealing in cattle feed and food grain items. 3.. That I on behalf of my firm use to purchase wheat bran (chokar) from various flour mills and sell the same to the customers who purchase it for the purpose of feeding their cattle. 4.. That in the market also chokar is understood as cattle feed. 5.. That to my knowledge the use of chokar (wheat bran) is to feed the cattle like cows and buffaloes, etc. Sd/Bishwanath Agrawal. Verification I, Bishwanath Agrawal do hereby declare that the statements made above are true to the best of my knowledge, information and belief, signed and verified on this the 22nd day of February, 1986, at Hazaribagh. (b) Before Notary Public, Giridih. Affidavit I, Prakash Chand Jain, s/o Late M.L. Sarawgi, resident of Giridih P.S. Giridih Dist. Giridih, do hereby solemnly affirm and declare as follows: 1.. That I am the proprietor of the firm M/s. Shree Mahabir Khadya Bhandar, Giridih. 2.. That my firm is mainly dealing in cattle feed. 3.. That I on behalf of my firm use to purchase wheat bran (chokar) from various flour mil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... important elements of its feed, are most apt to be lacking in natural live-stock feeds and that they are included as additives in mixed feeds so as to make good the deficiency. Whichever way one looks at the matter, therefore, whether one looks at it from the angle of the etymological meaning of the word in the context in which it is used here along with fodder and concentrates, or whether one looks at it from the angle of a person conversant with the industry or trade of live-stock farming or poultry raising, the words cattle feed' and 'poultry feed' cannot any longer be considered as meaning only that conventional food which is necessary for the bare maintenance of cattle or birds, as the case may be. Such feed must consist of both the elements, namely, ration for maintenance and ration for production purpose." As to what a wheat bran is has been explained in a letter dated 17th February, 1986 (annexure 9 of the supplementary affidavit filed by the petitioners) from the Director, U.S. WHEAT ASSOCIATES, representing Wheat Growers Organization of the United States at New Delhi, which may be referred to in paragraph 17 of the judgment. 21.. Again in the case of Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attle feed. 24.. Then remains the only other question to be considered i.e., whether the petitioners are liable to pay sales tax on the sale of wheat bran? As already stated above, in the earlier part of the judgment, the stand of the respondents was that the effect of the exemption Notification No. 14547 dated 26th December, 1977, is taken away because a retroactive notification (with effect from 26th December, 1977) was issued on 9th March, 1978 (Notification No. 3320), which made "bran" exigible to tax. Notification No. 3320 dated 9th March, 1978 (already quoted earlier) was issued under the Bihar Sales Tax Fifth Ordinance, 1977, and 3 per cent tax was levied on bran (along with atta, maida and sujji) and this notification was made retrospective with effect from 26th December, 1977. In that view of the matter, the submission advanced by the learned counsel for the respondents was that because of the retroactive notification dated 9th March, 1978 (No. 3320) the effect of exemption Notification No. 14547 dated 26th December, 1977, was taken away and hence the "bran" was exigible to tax. The learned counsel for the respondents also submitted that an evidence of intention to tax b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TC 295 (All.) a similar question was under consideration. The question was whether "kulfi" and "lassi" were "milk products" and exempted by notification under section 4, U.P. Act, and whether subsequent fixing of rate of tax on "kulfi" and "lassi" by notification under section 3-A of that Act had the overriding effect on the exemption notification. The learned judge of the Allahabad High Court (Lucknow Bench) in the case of Commissioner of Sales Tax v. Dayal Singh Kufiwala [1982] 49 STC 295 held as follows: "The operating fields of the two sections, namely, sections 3-A and 4, are distinct and separate. Section 3-A by itself cannot override the power under section 4. On the other hand, if certain goods have been classified for purposes of section 3-A and the point of tax has also been declared by the State Government, if such goods had been exempted from sale, the department cannot contend that the exemption should not be construed in favour of the assessee." Similarly, in the case of Commissioner, Sales Tax, U.P., Lucknow v. Rita Ice Cream reported in [1982] 49 STC 297 (All.), similar question was under consideration. This was a Bench decision of the Allahabad High Court and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 4 shall prevail over the incidental inclusion of such a commodity under section 6 which must be taken to be without the necessary sanction". A similar view, in almost a similar situation was taken by the High Court of Karnataka in the case of K. Janardhana Acharya v. State of Karnataka reported in [1980] 46 STC 375. 26.. In the case of A.V. Fernandez v. State of Kerala reported in [1957] 8 STC 561, the Supreme Court observed as follows at page 574: "There is a broad distinction between the provisions contained in the statute in regard to the exemptions of tax or refund or rebate of tax on the one hand and in regard to the non-liability to tax or non-imposition of tax on the other. In the former case, but for the provisions as regards the exemptions or refund or rebate of tax, the sales or purchases would have to be included in the gross turnover of the dealer because they are prima facie liable to tax and the only thing which the dealer is entitled to in respect thereof is the deduction from the gross turnover in order to arrive at the net turnover on which the tax can be imposed. In the latter case, the sales or purchases are exempted from taxation altogether. The legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inferred by implication in order to override the exemption Notification No. 14547 dated 26th December, 1977. It is well-settled that there can be no tax by implication and thus the submission advanced on behalf of the respondents that the retroactive notification (No. 3320) dated 9th March, 1978, inferentially and by implication taxed bran by superseding the exemption notification also fails. I further hold that as exemption from tax on "cattle feed and poultry feed" (item No. 35 of the exemption Notification No. 14547 of 26th December, 1977) was withdrawn only on 29th June, 1985, by Notification No. S.O. 611 (which came into force with effect from the 1st July 1985), the exemption notification with regard to "cattle feed and poultry feed" (No. 14547 dated 26th December, 1977) remained in force till 30th June, 1985. 28.. Then remains other important limb of the submission advanced by the learned counsel for the respondents to be considered, i.e., the stand taken by the learned counsel for the respondents was that the Notification No. 3322 issued on 9th March, 1978, restricted the meaning of cattle feed and poultry feed by adding an explanation to the effect that: "Spashtikar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanation can widen the meaning of the expression but, in no case, it can restrict in the eye of law. 31.. In order to appreciate the aforesaid submissions advanced on behalf of the parties, it would be most pertinent to mention just here that the Notification No. S.O. 611 published on 29th June, 1985, the expressions "cattle feed" and "poultry feed" (of item No. 35 in the exemption Notification No. 14547 dated 26th December, 1977) were dropped and only those four items, as mentioned in the explanation to the expression "pashuchara tatha kukutchara" in the Notification No. 3322 dated 9th March, 1978, were retained. Even the word "explanation" and the words thereafter, i.e., "pashuchara tatha kukutchara se abhipret hai " were dropped. Can it then be said, as submitted by the learned counsel for the respondents? At the outset the answer to the submission advanced on behalf of the respondents is in the negative. 32.. It is well-settled that the proper function of an explanation is to make plain or elucidate what is enacted and not to add to or substract from it. An explanation does not either restrict or extend the enacting part; it does not enlarge or narrow down the scope of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC) has already been made in paragraph 26 above.) The same case is also reported in AIR 1957 SC 657 and by the Supreme Court it has further been held in that case as follows: "It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Revenue satisfies the court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the Provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to Probe into the intentions of the legislature and by considering what was the substance of the matter. We must of necessity, therefore, have regard to the actual provisions of the Act and the rules made thereunder before we can come to the conclusion that the appellant was liable to assessment as contended by the sales tax authorities." It is also well-settled that if in construing taxing statutes if two interpretations are possible, effect must be given to one that favours the cit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Hindi version of the notification and the English version of the notification by virtue of article 348 of the Constitution of India (referred to above), it is the English version that will prevail. (Reference be made to a Full Bench case of the Allahabad High Court in the case of Smt. Ram Rati v. Gram Samaj, Jehwa reported in AIR 1974 All. 106.) (Reference be also made to a Bench decision of the Patna High Court in the case of Shree Alok Kumar Agrawal v. State of Bihar reported in AIR 1976 Pat 392.) 35.. It is also true that a State which has prescribed Hindi as the language for the official use in the State, both the Hindi version as also the English translation of the notification (Bill, Act, etc.), published in the official Gazette are valid and authorised and both of them can be looked into and put to official use. There is no competition between the two. It is only in case of conflict or divergence between the two versions that the English version may reign supreme and supersede the Hindi one. (Reference be made to a Full Bench case of Jaswant Sugar Mills Ltd., Meerut v. Presiding Officer, Industrial Tribunal (III), U.P., Allahabad reported in AIR 1962 All. 240.) 36.. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no conflict/ inconsistency between the two versions of the notification of 9th March, 1978. The case of Ramdhyan Singh v. State of Bihar 1979 (3) SLR 369, relied upon by the learned counsel for the respondents, is quite distinguishable. Learned counsel for the respondents, in support of his submission, also placed reliance upon the case of Binod Bihari Mahato v. State of Bihar reported in AIR 1974 SC 2125. This case also is quite distinguishable. This was a case under the Maintenance of Internal Security Act (1971) and the order of detention was under challenge. The order of detention was in Hindi (the official language of the State) but there was also an English version of the order of detention. At the time of arrest, the Hindi as well as English versions of the order of detention were served on detenu together with the grounds of detention which were also in Hindi and English versions. The English version of the grounds of detention recited that the District Magistrate was satisfied that if the detenu was allowed to remain at large he would indulge in activities prejudicial to the maintenance of public order or security of the State. The words "or security of the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncement as referred to above, I hold that in view of the provisions as contained in article 348(1)(b)(iii) of the Constitution of India, the notification dated 9th March, 1978, appearing in English must prevail over the notification of the same date appearing in Hindi. 39.. I further hold that though it is true that Hindi has been adopted as the official language of the State of Bihar under the Bihar Official Language Act, 1950, there was no conflict/inconsistency/contradiction in the Hindi and English versions of the notification dated 9th March, 1978, and hence it was the English version of the notification dated 9th March, 1978, which must prevail over the Hindi notification of the same date. I further hold that even if there was some inconsistency/conflict (which there is none), in the two notifications, they did not affect the substance of the matter in the present case and, in that view of the matter also, it was the notification in English which must prevail under article 348(1)(b)(iii) of the Constitution of India. Before concluding this point, to me it appears that it is of importance that in the matter of issuing and publishing notifications which are now issued in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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