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TMI Blog1991 (6) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Assistant Commissioner concurred with the assessing authority. The assessee preferred second appeal as T.A. Nos. 579 and 580 of 1988 before the Sales Tax Appellate Tribunal, Additional Bench, Kozhikode. As per a common order in those appeals the Tribunal held that empty bottles and phials are not items coming under entry 111 of the First Schedule and that they are not glassware. It was further held that the sales tax turnover of the said items is taxable only at the rate applicable to unclassified items, i.e., at the general rate provided under the Kerala General Sales Tax Act. That order is assailed by the Revenue in the Tax Revision Cases Nos. 113 of 1990 and 114 of 1990. 3.. Respondent in T.R.C. No. 40 of 1991 is a dealer in empty bottles, corks, etc., at Kozhikode. He was assessed to sales tax for the year 1985-86 on a taxable turnover of Rs. 4,78,930. The assessee questioned the rate of tax levied on the turnover of empty bottles in first appeal before the Additional Appellate Assistant Commissioner, Kozhikode. The order of the assessing authority was confirmed in appeal. The Sales Tax Appellate Tribunal on second appeal adopted their earlier decision in T.A. Nos. 579 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... glassware" in Webster's New World Dictionary where it is defined as "articles made of glass" the Supreme Court observed that in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers and the like which have a specialised significance and utility. Those articles though made of glass are normally available in medical stores or with the manufacturers thereof. It is observed by the Supreme Court that it is unlikely that a consumer would ask for such articles from a glassware shop. In that view the Supreme Court held that clinical syringes cannot be considered as glassware. 6.. The Supreme Court in that decision had referred to an earlier decision of the Supreme Court in Ramavatar Budhaiprasad v. Assistant Sales Tax Officer [1961] 12 STC 286. A question arose whether betel leaves are vegetables or not. It was held that the word "vegetables" in taxing statutes has to be understood as in common parlance, i.e., denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table. Vegetable is defined in Shorter Oxford Dictionary as "of or pertaining to, comprised or consisting of, or derived, or obtain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ets are not glassware for the purpose of sales tax law and that decision of the Tribunal had been accepted by the Government and has not been challenged in any manner. 9.. The question whether glass mirror can be classified as "other glass and glassware" set forth in item 23A(4) of Schedule I to the Central Excises and Salt Act, 1944, was considered by the Supreme Court in Atul Glass Industries (P.) Ltd. v. Collector of Central Excise [1986] 63 STC 322. The Supreme Court held that glass mirrors cannot be held to be "glass or glassware" under tariff item 23A(4). The Supreme Court laid down the test to be applied in such cases. The test is: How is the produce identified by the class or section of people dealing with or using the product? That is a test which is attracted whenever the statute does not contain any definition. The principle enunciated by the Supreme Court in Delhi Cloth & General Mills Co. Ltd. v. State of Rajasthan [1980] 46 STC 256 at page 259 was quoted with approval by the Supreme Court in the decision in [1986] 63 STC 322 [Atul Glass Industries (P.) Ltd. v. Collector of Central Excise]. The passage reads: "In determining the meaning or connotation of words and ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in aluminium goods, plastic goods, empty bottles, perfumes, etc. Respondent in T.R.C. No. 40 of 1991 is doing business in empty bottles, corks, perfumes, etc. Neither of them is dealing in tableware which is commonly known as glassware. Glass bottles and phials are not usually sold in a glassware shop. Counsel for the assessee points out that used bottles and phials are collected by the assessee and after cleansing them they are put to sale. Such articles are not available from a glassware shop and a consumer could not approach a glassware dealer for purchasing glass bottles and phials. The word "glassware" has therefore to be understood according to its popular sense and when so understood it is clear that glass bottles and phials will not come within that term. No error has therefore been committed by the Tribunal in holding that empty bottles and phials sold by the assessees are not exigible to tax under entry 111 of the First Schedule to the Kerala General Sales Tax Act. 12.. There is also indication in the Kerala General Sales Tax Act itself to suggest that glass bottles and phials do not come within the meaning of the expression "glassware". It cannot be said that the Leg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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