9911796707
TMI Blog1995 (4) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... ce (Sales Tax) Act, 1941 (in short, "the 1941 Act"), or general goods taxable under the 1941 Act. 2.. This application under section 8 of the above Act of 1987 read with article 323B of the Constitution of India is, for all purposes, one under articles 226 and 227 of the Constitution of India, and the subject-matter falls within the exclusive jurisdiction of this Tribunal, that of the High Court having been barred. 3.. The applicant No. 1, Krishna Coconut Co., is a partnership firm, being a registered dealer under the 1941 Act. In the course of assessment dated June 18, 1992, for the period of 4 quarters ending 1394 B.S. under section 11(1) of the 1941 Act, sales of watery coconuts, or, "dehusked coconuts with kernels and water containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence between a fresh fruit and a fruit lies in the watery contents. The case of the applicants is that dehusked coconuts with kernels and water contained therein, cannot be treated as "oil-seeds" within section 14 of the 1956 Act and should be treated as tax-free "fresh fruits " within rule 3(27) of the 1941 Rules, substituted by item 55 of Schedule I to the 1941 Act. It is claimed that watery coconuts sold by applicants were not copra, and hence, those cannot be treated as "oil-seeds" under the 1956 Act. 4.. The case of respondents in their affidavit-in-opposition is that the applicants are engaged in selling dehusked coconuts with kernel and water and respondent No. 1 has been consistently treating the same as taxable under the 1941 Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The applicants and respondents both were of the view that it is governed by the 1941 Act. The dispute is confined to the question whether it will be treated as "fresh fruit", thereby availing of the exemption under erstwhile rule 3(27) of the 1941 Rules and existing item 55 of Schedule I to the 1941 Act, or it will be taxable as general goods at the general rate of tax. If it is simply a fruit, and not a fresh fruit, it is taxable as general goods at the general rate of tax, namely, 8 per cent. A number of decisions are cited to show that where no definition of an item in a taxing statute has been provided, the common parlance meaning should be followed. Mr. Bose contended that ripe coconuts of this nature are treated as fresh fruits, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (All.) (Commissioner of Sales Tax v. Kedari Lal Barsaiya), it was held that "kachcha naryal" is fresh fruit. From the judgment it will appear that green coconut was understood as kachcha naryal. In [1986] 62 STC 187 (Pat) (Commissioner of Commercial Taxes v. Ekbal Ram Lakshman Prasad), it was held that "garigola" or dry coconut is copra and, therefore, "oil-seed" within the meaning of section 14(vi) of the 1956 Act. Mr. S.N. Bose, learned advocate for the applicants, contended that in West Bengal even ripe coconuts with fullgrown kernel and water, as plucked from trees, are also considered as fresh fruits. In this context he referred to [1994] 94 STC 168 (Raj) (Commercial Taxes Officer v. Kiran Trading Co.) where a learned Judge held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nut. This is the well-known variety of coconuts used for culinary purposes and on auspicious occasions and as part of the offerings in temples." Next, Mr. Goswami relied on the case of Hameed Trading Company [1973] 32 STC 228 (Mad.). A Division Bench held that similar coconuts cannot be treated as perishable and, hence, cannot be treated as fresh fruits. In taking the said view, the learned Judges relied on the decision in the case of His Majesty the King v. Planters Nut and Chocolate Company Ltd. (1951) CLR (Ex.) 122 which was approved by the Supreme Court in the case of Jaswant Singh Charan Singh [1967] 19 STC 469. The ratio of the said decision was the common parlance test: Whether a householder when asked to bring home food for the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are of the opinion that in the present case also, the ripe dehusked coconuts containing water and full-grown kernel within, cannot be treated as tax-free "fresh fruits" within the meaning of rule 3(27) of the 1941 Rules which was in force during the relevant period of assessment and which was replaced in 1987 by item 55 of Schedule I to the 1941 Act. Accordingly, we hold that the said coconuts should be treated simply as fruits and, therefore, as general goods taxable at the general rate. The judgment of the Tribunal below, namely, the West Bengal Commercial Taxes Tribunal, in the case of Krishna Coconut Co. reported in (1980) 13 STA 270, holding such coconuts as "fresh fruits" is disapproved. We approve the decision of the said Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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