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TMI Blog1991 (8) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal, presided over by two Members, for the assessment year 1981-82, took the view that "Thermofoam" will fall under entry 40(v) of the First Schedule to the Act and as such exigible to single point rate of tax. For the assessment year 1979-80, when the same question was again brought before the Tribunal (Main Bench), now presided over by a Chairman and two Members (three), a different view was taken, holding that the product "Thermofoam" will not fall under entry 40(v) of the First Schedule to the Act and, therefore, not exigible to single point rate of tax. It is under these circumstances, the assessee has filed T.C. No. 9 of 1986 against the Order of the Tribunal for the assessment year 1981-82 and the Revenue has filed T.C. No. 4 of 1987 against the Order for the assessment year 1979-80. 3.. The common question that was argued before us is, whether the doctrine of ejusdem generis can be applied to entry 40 of the First Schedule to the Act to give a restricted meaning to sub-entry (v) of main entry 40. In other words, whether the product, namely, "Thermofoam" will fall within entry 40(v) of the First Schedule to the Act, and as such, is exigible to single point rate of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r litre giving it outstanding insulating properties. Thermofoam is a perfect barrier against heat with excellent resistance to moisture and chemicals. Thermofoam has high insulating efficiency prolonging plant life and reducing manufacturing costs. Thermofoam has good structural strength, dimensional stability and is shock absorbent. Thermofoam is strong, extremely light and resistant to aging. Thermofoam can be cut easily for insulation. Thermofoam is attractive in appearance being snow white in colour. Thermofoam keeps your processed fluids extremely cool and eliminates surface condensation and dripping. Thermofoam is widely used in cold stores, refrigeration, airconditioning, roof walls and floor insulation in buildings, false ceiling, acoustic treatment, pipe insulation and packaging. Thermofoam is available in slabs of size 1m x 1/2m, 1m x 1m and in thickness ranging from 15mm (0.59") to 200mm (8"). Thermofoam is also available in pipe sections up to 350mm (14") standard pipe diameter in various thickness". 9.. Now, coming to the views expressed by the Tribunal, we find that the case for the assessment year 1981-82 came up before the Tribunal earlier, and the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... What we have to consider in this appeal is whether we should apply the above principle as contended by the learned counsel. Under entry 40(v) of the First Schedule, the words 'sheets, cushions, pillows and mattresses' are followed by the expression 'other articles'. These specific words belong to a category, namely, goods used for rest and comfort for human body. These words are followed by general term 'other articles. Therefore, the other articles made of foam, rubber, plastic foam or other synthetic foam, also should be articles used for rest and comfort. Therefore, as per the principles laid down in the several decisions cited above, the words 'other articles' will take colour from the preceding words. Therefore, the entire articles must be construed as a whole relating to articles of a particular class usable for the purpose of rest, comfort and leisure. The articles dealt with by the appellants, viz., Thermofoam are sold in slab. According to the appellants, they are used as insulating materials for air-conditioning and refrigeration and also for packing and other multifarious uses. This statement of the appellant is not disputed by the Revenue. (The thermofoam is used only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that: 'To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of objects. Where this is lacking, the rule cannot apply, but the mention of a single species does not constitute a genus.' Farwell, L.J., in Tillmans Co. v. S.S. Knutsford [1908] 2 KB 385; [1908] AC 207 observed: 'Unless you can find a category, there is no room for the application of the ejusdem generis doctrine.' This principle finds recognition in Jagdish Chandra Gupta v. Kajaria, Traders (India) Ltd. AIR 1964 SC 1882, where the Supreme Court stated: 'It follows, therefore, that interpretation ejusdem generis or noscitur a sociis need not always be made when words showing particular classes are followed by general words. Before the general words can be so interpreted there must be a genus constituted or a category disclosed with reference to which the general words can and are intended to be restricted'." 13.. In [1973] 88 ITR 448; [1974] 1 SCJ 104 (Controller of Estate Duty v. Ramachandra Gounder), the Supreme Court, on the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avoured because its rejection would make the specific words unnecessary.' (See: Construction of Statutes by E.A. Driedger, page 95 quoted by Francis Bennion in his Statutory Construction, pages 829 and 830.) Francis Bennion in his Statutory Construction observed: 'For the ejusdem generis principle to apply there must be a sufficient indication of a category that can properly be described as a class or genus, even though not specified as such in the enactment. Furthermore, the genus must be narrower than the words it is said to regulate. The nature of the genus is gathered by implication from the express words which suggest it..........' (page 830). It is necessary to be able to formulate the genus; for if it cannot be formulated it does not exist. 'Unless you can find a category', said Farwell, L.J., 'there is no room for the application of the ejusdem generis doctrine' (page 831). In SS. Magnhild (Owners) v. McIntyre Bros. Co. [1920] 3 KB 321, McCardie, J., said: 'So far as I can see the only test seems to be whether the specified things which precede the general words can be placed under some common category. By this I understand that the specified things must possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, unless you find a category there is no room for the application of the ejusdem generis doctrine and where the words are clearly wide in their meaning they ought not to be qualified on the ground of their association with other words. [See Corporation of Glasgow v. Glasgow Tramway and Omnibus Co. Ltd. [1898] AC 631, 634 (HL)]. In National Association of Local Government Officers v. Bolton Corporation [1943] AC 166 (HL), it was held that 'the ejusdem generis rule is often useful or convenient, but it is merely a rule of construction, not a rule of law'." 17.. In [1978] 41 STC 376 (Sukhu Ram Tamrakar v. State of Madhya Pradesh), a Full Bench of the Madhya Pradesh High Court, on this issue, observed as follows: "The doctrine of ejusdem generis is not an inviolable rule of law. You can be permitted to infer by applying it only in the absence of an indication to the contrary. You cannot apply the rule when the preceding words and the general words constitute description of two categories or the general words in question themselves constitute description of a distinct category. The rule of ejusdem generis is to be applied with caution and should not be pushed too far unless we f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll-known that nitrogen has various industrial uses one of which is its use in electric lamps. Nitrogen therefore is an inert, i.e., noncombustible gas. As far as oxygen and acetylene are concerned, they are certainly combustible and in combination they are used to produce flame required for purposes of metal cutting, welding, etc. Therefore, it is difficult to accept the submission that the entry comprehends only combustible gases." 19.. Entry 121 of the Second Schedule to Karnataka Act (mentioned above) reads as follows: "Industrial gas, such as oxygen, acetylene, nitrogen and the like." 20.. Bearing in mind the above rulings and the ratio laid down by the Supreme Court and various High Courts including our High Court, let us now consider the rival arguments. 21.. The submission of the learned counsel for the assessee is like this: The words, sub-entries (i) to (iv) of main entry 40 belong to one category and, therefore, while construing sub-entry (v), namely, "other articles", restricted meaning should be given having regard to the sub-entries preceding it. If so construed, the product in question will fall outside entry 40 and, therefore, it will not attract single point ..... X X X X Extracts X X X X X X X X Extracts X X X X
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