9911796707
TMI Blog1987 (4) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... black pepper, chilli, cinnamon, cardamom, cloves, ginger, mustard, rapes and many other like items. According to the petitioner he imported within the Metropolitan City of Calcutta certain turmeric, black pepper, etc. The petitioner was assessed to an entry tax under the heading "spices" which has been challenged by the petitioner in this writ petition. While allowing the writ petition the learned Judge held as follows: "In my view, the contention of Mr. Chakraborty is sound and should be accepted. The expression 'spice' in my view is a generic term which means a flavouring agent for food. In my view whether we take the dictionary meaning of that expression or the meaning that is understood in common or commercial parlance, the result is the same. In other words, both by its dictionary meaning and by the meaning in which the common man understands it, spices' are nothing but an ingredient which adds flavour to food. I am in respectful agreement with the view taken by A.K. Sen, J., in the case of Lalchand Agarwalla v. State of West Bengal reported in 76 Cal WN 120; 1972 Tax LR 1767 (Cal). According to the ratio of that decision, the subject cannot be made liable to tax under a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of West Bengal has preferred this appeal. Though in this appeal the State seeks to have the trial court's order set aside but having regard to the fact that the argument sought to be made on its behalf was not clear and as the appeal is a rehearing of the main matter, we called upon the respondents, who were the writ petitioners, to support the judgment appealed from and to argue their case in support of the writ petition first, so that we may call upon the State to answer the same. Mr. Chakraborty appearing on behalf of the writ petitioners submitted that under the heading "spices", only those items which are used as flavouring agent for food can be taxed but not those which may be used for other purposes. In this connection he has relied on certain averments made in the writ petition which are set out hereinbelow: "That the petitioner states that the said Act in its original form or in the amended form with its Rules do not define the ambit of spices and powders thereof. It does not say which items are included in it. The result is that the respondents and their agents may run amuck and do include within the definitions of spices any commodity arbitrarily according to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice may not be entering into the Calcutta metropolitan area to be used as spice and in fact did not enter into the said area to be used or consumed as spice. A bulk of said commodities had been used and utilised in the manufacture of medicines, dyeing stuff and pan masala. Pan (betel leaf) is not used in this country as food although it is one of the spices of vegetable not grown in the kitchen garden to be used for the table. This view has been emphasised by different judgments of courts of law and it has been said that betel leaves are not to supplement food. It is used after taking a meal as masticatory for helping digestion. Pan masala is therefore a different class, not meant for food. The petitioner craves leave to refer to the texts and/or authorities to show which items are used for medicines, dyes and/or pan masala at the time of hearing of the petition. Dry ginger, garlic and chillies may be treated as spice but the same thing when green are declared by the court to be vegetables used for the table." (para 12) "It is, therefore, clear that all the items of goods which fall within the category of spice do not go to the consumer to be used as spice. As such the entry tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. He has also relied on the cases of Mangulu Sahu v. Sales Tax Officer, Orissa reported in [1973] 32 STC 494 (SC); AIR 1974 SC 390, State of Orissa v. Dinabandhu Sahu reported in [1976] 37 STC 583 (SC); AIR 1976 SC 1561, State of West Bengal v. Washi Ahmed reported in [1977] 39 STC 378 (SC); AIR 1977 SC 1638. The second submission of Mr. Chakraborty was that items must be specific. Specified items must be stated. In this particular case class or category of goods have been specified; specific goods have not been specified. Spice is a generic term, but what type of spices are being taxed have not been specified. Accordingly, it is not "specified" within the meaning of the Act. In this connection Mr. Chakraborty has relied on the decisions of the single judge and the Division Bench in Lalchand Agarwalla's case 76 Cal WN 120; 1972 Tax LR 1767 and [1973] 77 Cal WN 910. The third submission of Mr. Chakraborty was that this was an arbitrary assessment and in this context he relied on para 17 of the petition. We ought to point out that this paragraph has been dealt with in para 13 of the affidavit-in-opposition. The last submission of Mr. Chakraborty was that this was in violation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is certainly appropriate, for they are the intermediate compounds between benzene, naphthalene and anthracene, on the one hand, and the brilliant and varied dyes on the other. In Craies 'Statutory Interpretation' published by Butterworths, London, in 1976 at page 57 it is stated: 'nothing need be said at this stage about the distinction between an ordinary and technical meaning, but something must be said about "fringe meaning" and the cognate problem of the restrictions to be placed on the interpretation of general words. Problems of fringe meaning are sometimes spoken of as problems of the penumbra, the point being that in the case of a great many words, there is no doubt about the hard core of their meaning, but different views may well be taken on the question whether the word is applicable to things or situations outside that hard core. No one doubts that a chair is furniture, but what about linoleum? A fully (assembled) motor car is certainly a vehicle, but what if the engine and wheels are removed? Is a bicycle a carriage? Different minds may take different views concerning the answer to these and countless similar questions. In a great many cases the answer will of cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 13. Every dealer of specified goods shall, on or before the entry of such goods into the Calcutta metropolitan area, deliver, at a notified place to the prescribed authority a declaration (in such form and containing such particulars as may be prescribed) relating to such goods: Provided that no such declaration shall be required to be made in relation to any specified goods which are exempted by sub-section (2) of section 6, section 7 or section 8 from the payment of any tax leviable under this Act. Section 16. If the dealer omits or fails to pay the whole or any part of the tax assessed under sub-section (1), (2) or (3) of section 14 or the amount of penalty imposed under sub-section (2) or sub-section (3) of that section, the prescribed authority may seize the specified goods in relation to which payment has been so evaded. Section 27. (1) Any dealer, deeming himself aggrieved by any order passed under this Act, may in the prescribed manner and within one month from the date of such order, appeal therefrom to such officer of Government as may be prescribed: Provided that no appeal shall be entertained by such officer unless he is satisfied that an amount equal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing officer is not satisfied about the reasonableness of the value shown or declared by the dealer, such assessing officer shall determine the approximate saleable value of such goods in the Calcutta metropolitan area to the best of his judgment and shall levy tax accordingly." So far as the first submission on behalf of the petitioner is concerned, we are unable to accept the same. We are unable to accept the proposition that only those spices which are used for the purpose of flavouring foods, but not those which may be used for other purposes, can be taxed. The Act makes no such distinction. If it comes within the category of "spices" then it is to be. taxed. The ultimate use thereof is of no consequence. As it is made clear in section 6 itself that tax is levied on the entry of every specified goods into the Calcutta metropolitan area for consumption, use or sale therein. If it is otherwise a "specified goods" and if it is for consumption or use or sale in the Calcutta metropolitan area, that is sufficient. The main question is if it comes within the category of goods specified in column 2 of the Schedule. If it is a "specified goods" then it does not matter whether it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court was construing some of the provisions of the U.P. Sales Tax Act. It has been stated that in finding out the true meaning of "oil-seeds" found in the sales tax law, the court should not refer to dictionaries but to ascertain the meaning ascribed to it in commercial parlance. The Supreme Court says that there can hardly be any doubt that in commercial circles groundnut is dealt with as an oil-seed, and groundnut is mostly used for manufacture of groundnut oil. According to the Supreme Court groundnut is, therefore, "oil-seed" for the purpose of the purchase tax under the U.P. Sales Tax Act, 1948. Delivering the Supreme Court's judgment Hegde, J., has observed at page 470 (of STC); (at page 2441 of AIR) as follows: 'We shall now proceed to consider whether groundnuts are seeds and further whether they are oil-seeds. In finding out the true meaning of the term "oil-seeds" found in the sales tax law in question, we are not to refer to dictionaries. We are to find out the meaning ascribed to that term in commercial parlance. (See the decision of this court in Commissioner of Sales Tax, Madhya Pradesh, Indore v. Jaswant Singh Charan Singh [1967] 19 STC 469; AIR 1967 SC 1454). T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different item. In the facts of that case and in the light of the other items under Class III of the Schedule as specified in the judgment, the Division Bench came to the conclusion that edible oils or oil-seeds for edible oils would not be liable to any tax and accordingly oil-seeds for preparing edible oil would not come within the item "nuts". We cannot come to the conclusion, in this case, that the expression "spices" means only those spices which are used for the purpose of flavouring food and not for the purpose of manufacture of any other articles. It is nobody's case that the same thing cannot be used for both the purposes. In that case, it was further held, that the groundnuts were treated as oil-seeds in mercantile transactions and accordingly the legislature, in enacting the provisions of the Entry Tax Act, was certainly aware of the commercial tax law. In the case before us there is no material to show that in mercantile transactions spices mean only those kind of spices which are used for the purpose of consumption as such but not for the purpose of manufacture. In the facts of that case the Division Bench came to the conclusion that the legislature wanted to exclude o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. In the present case, spice in common parlance is clearly known to all. Therefore, even if in a given case something which amounts to spice in common parlance, is brought inside the metropolitan area for manufacture of some other goods, it does not cease to be "spice" within the meaning of the said Act. As already pointed out, it is nobody's case that in this particular case the articles brought in cannot be used for consumption but they can only be used for the purpose of manufacture of any other goods or that it is mainly used for commercial purposes. Accordingly, the cases cited are of no assistance to the writ petitioner. The next case cited was [1976] 37 STC 583 (SC) (State of Orissa v. Dinabandhu Sahu Sons). This is also reported in AIR 1976 SC 1561. There, the Supreme Court held that jeera, dhania (coriander), panmohuri, methi and Postak are "oil-seeds" within the meaning of section 14(vi) of the Central Sales Tax Act, 1956. After recording the submissions made, the Supreme Court observed as follows: "These appeals arise out of a decision in a reference under section 24 of the State Act under article 136 of the Constitution and we have to consider whether it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance (Sales Tax) Act, 1941, and, therefore, its sales are exempt from tax under section 6 of the Act. In this context, the learned judge held that the word "vegetables" is not defined in the Act but it is wellsettled as a result of several decisions of this Court that this word, being a word of every day use, must be construed not in any technical sense, not from any botanical point of view, but as understood in common parlance. It was held that green ginger is a vegetable grown in a kitchen garden or in a farm and is used for the table. It may not be used as a principal item of the meal but it certainly forms part of the meal as a subsidiary item. It was pointed out that it is an item which is ordinarily sold by a vegetable vendor and both the vegetable vendor who every day deals in vegetables and the housewife regard green ginger as vegetable. Accordingly, we reject the first submission of Mr. Chakraborty. Regarding the second submission in support of the writ petition, as we have already stated, it was submitted that only the word "spice" has been used and not any particular kind of spice. We are unable to accept such contention. Under section 6 of the said Act the tax is impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the nature of the allegation. It does not appear that any such point was specifically taken before the lower court. However, in any view of the matter, we accept the explanation given in the affidavitin-opposition on behalf of the State. In our opinion, there is no merit in this contention. In his reply, Mr. Chakraborty contended that the assessment in the present case was arbitrary on another ground, that is, in the assessment order some additional amounts have been added without giving any reason. No such point was specifically taken in the petition and no opportunity was given to the State-respondents. In any view of the matter, in such cases the petitioner had adequate remedy provided in the statute by way of appeal and/or revision and accordingly we cannot allow the assessee to raise this point for the first time in the appeal. So far as the contention based on article 301 is concerned, in our opinion, this is clearly misconceived. The cases cited have no application. On the other hand, the relevant cases are: Atiabari Tea Co. Ltd. v. State of Assam AIR 1961 SC 232, Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan AIR 1962 SC 1406, Sainik Motors v. State of R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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