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TMI Blog2010 (8) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... and consequently exempt from tax. The said Entry reads as follows :- "Entry No. 45 Religious pictures not for use as Calendars". 2. The Commissioner, VAT rejected the contention of the respondent that the framed religious pictures dealt with by the respondent fell within the ambit of Entry No. 45 of the First Schedule of the DVAT Act and thus were exempt from tax and held that the pictures in question were "General Unclassified Goods" thereby attracting tax @ 12.5% u/s 4(1)(e) of the DVAT Act, 2004. Consequently, the determination order was passed against the respondent who went in appeal before the Appellate Tribunal. 3. The Appellate Tribunal, after a detailed discussion as to the connotation of the words "religious/religion" and "picture" as contained in various dictionaries and the Macropaedia New Encyclopedia Britannica 15th Edition and after considering the contentions of the parties, including the contention of the counsel for the respondent that the principle of ejusdem generis applied by the Commissioner while interpreting the Entry 45 was not at all applicable in the instant case, held that the 'religious pictures' dealt with by the respondent which cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel has next taken us through the definition of the word 'picture' as contained in the Special Second Edition of Random House Compact unabridged Dictionary where at page 1465, the word 'picture' has been defined as under:- "a Visual representation of a person, object, or scene, as a painting, drawing, photograph, etc." 12. He has also referred to the definition of 'picture' as contained in Collins Co build English Dictionary for Advanced Learners wherein at page 1158 the 'picture' has been described as follows:- "a picture consists of lines and shapes which are drawn, painted or printed on a surface and show a person, thing or scene." 13. Dealing with the word 'religious' in connection with 'religious pictures', Shri Parthasarthy, Advocate has taken us through the Words and Phrases Permanent Edition West Publishing Co., Volume 36A Reclaim - Repaving wherein at page 465 the term 'religion' has been described as follows:- "The term "religion" has reference to one's views of his relations to his Creator and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with cultus or form of worship of a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds and phrases used in a taxing statute but not specifically defined therein, must be understood in the popular and commercial parlance. This contention was sought to be rebutted by the learned counsel for the Revenue by stating that the principle of ejusdem generis should be applied in order to interpret Entry No. 45 in the instant case, for which the learned counsel for the Department has relied upon the judgments of the Supreme Court in the case of Siddeshwari Cotton Mills (P) Ltd. v. Union of India (UOI) and Anr. - (1989) 2 SCC 458 = 1989 (39) E.L.T. 498 (S.C.), and Grasim Industries Ltd. v. Collector of Customs, Bombay, (2002) 4 SCC 297 = 2002 (141) E.L.T. 593 (S.C.). 7. Another contention of the learned counsel for the Revenue is that the moment the said 'religious picture' is mounted or framed, it goes outside the ambit of Entry No. 45 as it no longer remains a religious picture simplicitor, and becomes a "General Unscheduled Item" liable to tax @ 12.5% under Section 4(1)(e) of the Delhi Value Added Tax Act, 2004. The learned counsel also contended that the gold plated nickel foils on which the religious pictures and icons were embossed were of considerable value and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom a glassware shop. 10. The Supreme Court in the case of Indo International Industries (supra) relied upon its earlier judgment rendered in the case of Ramavatar Budhaiprasad etc. v. Assistant Sales Tax Officer, Akola [1961] 12 STC 286 (SC) where the question was whether 'betel leaves' fell within the item 'vegetable' so as to earn exemption from sales tax. The Court held that the word 'vegetable' had not been defined in the Act and the same must be construed not in any technical sense nor from the botanical point of view, but as understood in common parlance, and thus construed it denoted those classes of vegetable matter which are grown in the kitchen garden and are used for the table. 'Betel Leaves' were not comprised within it and therefore were not exempt from taxation. 11. In Commissioner of Sales Tax, Madhya Pradesh v. Jaswant Singh Charan Singh, (1967) 2 SCR 720 the question arose as to whether the item 'coal' under Entry (1) of Part 3 of the Second Schedule to the M.P. General Sales Tax Act, 1958, included 'charcoal' or not. The Supreme Court observed thus: "Now, there can be no dispute that while coal is technically understood as a mineral product, charcoal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n every days use, such words should be construed according to their popular sense. At page 128 of the Report Cameron, J., observed, "The object of the Excise Tax Act is to raise revenue, and for this purpose to class substance according to the general usage and known denominations of trade. In my view, therefore, it is not the botanist's conception as to what constitutes a 'fruit' or 'vegetable' which must govern the interpretation to be placed on the words, but rather what would ordinarily in matters of commerce in Canada be included therein. Botanically, oranges and lemons are berries, but otherwise no one would consider them as such". This rule was stated as early as 1831 by Lord Tenterdan in Attorney General v. Winstanley [1831] 2 D & CI. 302. Similarly, in Grenfell v. Inland Revenue Commissioner [1876] I Ex-D. 242, Pollock, B., observed, "that if a statute contains language which is capable of being construed in a popular sense such statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning of course, by the words 'popular sense', that sense which people conversant with the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter a Division Bench of the same High Court held that no reasonable person could, on the construction of the relevant item in the Schedule to the Tariff Act hold that the consignment of fountain-pens would fall under any item other than Item 45(3) or be charged a duty other than 30% provided under that item. Affirming the judgment of the Bombay High Court, the Supreme Court made the following apposite observations: - "7. In reaching this conclusion we have taken into account the fact that "fountain-pens complete" were taken out of the general item 45 'Stationery etc.' under which they were originally included, by an amendment effected in 1949 in pursuance of an international agreement and that though the duty on stationery was thereafter increased from 30 to 37½ per cent., under the provisions of the Finance Act, 1949, the duty of 30 per cent. fixed on fountain-pens remained unchanged. This at lease showed that they were treated as a specialized class of stationery which required separate treatment. The only question therefore is whether a fountain-pen in which certain of its essential parts are gold or silver-plated falls outside the category of "fountain-pens comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old or silver and the diamond may represent a small portion of it, yet nobody would call it gold or silver ring; it would be called a diamond ring, it is undoubtedly so. But this only shows that there is no one single universal test in these matters. The several decided cases drive home this truth quite eloquently. It is for this reason probably that the common parlance test or commercial usage test, as it is called, is treated as the more appropriate test, though not the only one. There may be cases, particularly in the case of new products, where this test may not be appropriate. In such cases, other tests like the test of predominance, either by weight of value or on some other basis may have to be applied. It is indeed not possible, nor desirable, to lay down any hard and fast rules of universal application. But so far as the goods concerned herein are concerned, these are undoubtedly plastic goods. Indeed, we put a straight question to Sri C. Sitaramiah, how would he characterize these goods? The answer could not be anything else than that they are plastic goods. Merely because in value of the steel including the locks and other materials used in the suit cases is more than th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se for a man of religious sentiment and theist views. 16. As regards the applicability of the principle of ejusdem generis sought to be pressed into service by the Department, it would be trite that the said principle is not an inviolable rule of law. It is only in the absence of any indication to the contrary that it may be pressed into service. When Entry No. 45 is absolutely clear and unambiguous, the rule of ejusdem generis can have no application. As held in Siddeshwari Cotton Mills (P) Ltd. (supra) and Grasim Industries Ltd. (supra), the said rule has to be applied with caution and not pushed too far. The rule reflects an attempt to reconcile incompatibility between the specific and general words and applies only where the context of the enactment does not require restricted meaning to be attached to the words of general import. But, as stated above, a note of caution has been sounded by the Apex Court in this regard, namely, that the rule is to be applied with care and caution and in the absence of any indication to the contrary. In the instant case, in our view, the said rule of ejusdem generis is wholly inapplicable. 17. In view of the aforesaid, we find no mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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