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TMI Blog1990 (11) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... old by the petitioner/assessee therein would fall under the abovesaid item 34". The relevant assessment year in this case is 1983-84. The said item 34 stood with effect from February 26, 1970, as follows: "34. Cement. At the point of first sale 8 per cent." in the State. So, for the above referred assessment years 1974-75 and 1975-76 the rate of tax was 8 per cent. But with effect from February 21, 1978, it was increased to 10 per cent and with effect from March 1, 1982, it was increased to 12 per cent. So. for the above referred to assessment years 1983-84 and 1984-85, the rate was 12 per cent. Apart from the abovesaid changes in the rate of tax, the said item 34, suffered a change in the description of the goods also, with effect from July 1, 1982, in that the original term "cement" was substituted by the term "cement including its substitutes". So, while in T.C. Nos. 302 of 1981 and 303 of 1981 it has to be seen whether the assessee's product is "cement", in T.C. Nos. 187 of 1986 and 250 of 1990 it has to be seen whether the assessee's product would come under the term "cement including its substitutes". So, in all these cases, if the respective assessee's product does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he U.P. Sales Tax (Amendment) Act, 1973, the entry 'white cement' has specifically been included in the cement. This does not show that white cement was not covered by that entry. The Government has clarified the position which was previously implicit, may be because of the contrary view taken by the sales tax authorities." So, we can take it that really there is no discussion regarding refractory cement in the abovesaid decision. Perhaps, the decision went on the assumption that refractory cement and white cement are similar. In this connection, the learned counsel drew our attention to an extract from the book "Roger's Manual of Industrial Chemistry" which was filed before the Tribunal. According to the said extract, fire clays which are the goods sold by the assessee, Southern Refractories and Minerals, will stand a high degree of heat to the extent above 1,6000C and are thus highly refractory. The basic everyday encyclopaedia also describes fire clay as one which will not melt, burn or combine with the substances being heattreated. The Tribunal also extracts in its order the submission of the learned counsel for the assessee regarding what is contained in the abovesaid "R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a facie a classification conforming to trade and industrial usage and binding on the sales tax authorities. The learned counsel also points out that the same question also arose under the law relating to excise duty and the matter was duly reported to the Central Board of Excise and Customs (Ministry of Evidence) in September/ October 1980 and, after due consideration of the technical applications the Central Board of Excise and Customs was pleased to issue Tariff Advice No. 75/80, dated November 25, 1980, stating that fire clay/refractory mortars and ramming masses are correctly classifiable under item 68 and not under item 23 of the Central Excise Tariff. The said item 23 runs as follows: Item No. 23: CEMENT ------------------------------------------------------------------------------ Item Tariff Description Rate of duty No. ------------------------------------------------------------------------------ 23. Cement, all varieties- (1) Grey portland cement (including ordinary Two hundred portland cement, portland-pozzolana cement and fifty and portland slag cement, masonry cement, rupees per rapid hardening cement, low heat cement and metric tonne. waterproof (hydro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e different, their chemical composition, and uses are quite different. In commercial world they are treated as two different commercial commodities. Even the Central Government treated the same as two different commodities. It is also well-established principle of law that in interpreting a particular commodity the dictionary meaning and the technical meaning should not be adhered to and that in a taxing statute words of everyday use must be construed not in their scientific or technical sense, but as understood in commercial parlance. Reference may be made in this connection to the decisions of the Supreme Court of India in Ramavatar Budhaiprasad v. Assistant Sales Tax Officer [1961] 12 STC 286; AIR 1961 SC 1325; Motipur Zamindary Co. (Private) Ltd. v. State of Bihar [1962] 13 STC 1; AIR 1962 SC 660 and State of West Bengal v. Washi Ahmed [1977] 39 STC 378; AIR 1977 SC 1638; 1977 Tax LR 2042 and Porritts Spencer (Asia) Ltd. v. State of Haryana reported in [1978] 42 STC 433; AIR 1979 SC 300; 1979 Tax LR 1692. In view of the decisions of the Supreme Court and in view of the statutory definition of "cement" under the Imported Cement (Control) Order, 1978 and the booklets issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing also is to the same effect. Further he also points out that even the above referred to extract of "Roger's Manual" used the word "cement" in describing the abovesaid refractory materials. Further he contends that there is a stronger reason for including the abovesaid refractory materials in the abovesaid item 34 after its above referred to amendment, since according to him, these materials could be "substitutes" for cement. Having carefully considered the above referred to arguments of both the counsel and going through the relevant documents filed by the assessee and the above referred to Supreme Court and High Court decisions, we hold that, taking into account the popular commercial meaning of the term "cement", the above referred to refractory materials of the two assessees in these four revision cases cannot fall under the abovesaid item 34 both before the above referred to amendment and after. The Tribunal's decision rested on [1974] 33 STC 556 (All.) (Commissioner of Sales Tax v. Mango Mal Nanak Ram). But though [1974] 33 STC 556 (All.) (Commissioner of Sales Tax v. Mango Mal Nanak Ram) generally deals with both "white cement" and "refractory cement", it actually discus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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