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TMI Blog1997 (12) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... 1959 (Tamil Nadu Act No. 1 of 1959-for short "the TNGSTA"). Entry 8 included in its fold, "binoculars, telescopes and opera glasses". The assessee-dealers' claim is that "theodolite", a survey instrument is not at all falling under entry 8 of the First Schedule to the TNGSTA and consequently, the sales turnover of "theodolite", amounting to Rs. 2,71,458 is liable to be taxed at multi-point at the appropriate rate, falling under section 3(1) of the TNGSTA. (a) This sort of a claim made by the assessee was not at all accepted by the assessing officer and he construed "theodolite" as falling under entry 8 of the First Schedule to the TNGSTA and got the sales turnover, relatable to "theodolite", as stated above, assessed to tax at appropriate rate, as aforesaid, in the absence of production of "C" and "D" forms. 3.. The aggrieved assessee-dealers filed appeal in C.S.T. No. 276 of 1991 before the Appellate Assistant Commissioner (C.T.) IV, Madras-108 (for short "the AAC"), who, in turn, after taking into consideration the relevant materials placed on record, and, of course, after hearing the arguments of learned representatives on either side, accepting the case of the assessee, all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . L. telescopium (Porta); see Tele-Scope). An optical instrument for making distant objects appear nearer and larger, consisting of one or more tubes with an arrangement of lenses, or of one or more mirrors and lenses, by which the rays of light are collected and brought to a focus and the resulting image magnified. Telescopes are of two kinds: refracting, in which the image is reproduced by a lens (the object-glass) and reflecting, in which it is produced by a mirror or speculum; being magnified in each case by a lens or combination of lenses (the eye-piece). The smaller hand-telescopes are always refracting, and consist of two or more tubes made to slide one within another for convenience of packing into a narrow compass and for adjusting the lenses as required for focussing the image, b. Astr. A constellation south of Sagittarius 1891." (b) It also gives the meaning of "theodolite", at page 2279, as below: "Theodolite (pi-o-doleit). 1571. [First in mod.L. form theodelitus (Leonard or Thomas Digges, its probable inventor); of unkn. origin] A portable surveying instrument, orig. for measuring horizontal angles, and consisting essentially of a planisphere or horizontal graduated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y means of electric motors and fine gears. They are classified according to function." (b) It also gives the meaning 'theodolite' at page 1025, as below: "The-odo-lite (Oi-od-lait) n. an instrument used by surveyors to measure vertical and horizontal angles, consisting of a small telescope moving along a graduated scale. (origin unknown). 13.. Bureau of Indian Standards issued specifications as respects vernier theodolite. The foreword to the specifications so issued reads as under: "Foreword-This Indian Standard (First Revision) was adopted by the Bureau of Indian Standards, after the draft finalised by the Optical and Mathematical Instruments Sectional Committee had been approved by the Light Mechanical Engineering Division Council. Theodolite is an instrument for precise measurement of horizontal and vertical angles. The vernier theodolite is provided with graduated horizontal and vertical circles and two small vernier scales. The vernier scales are movable and remain in sliding contact with the graduated circles. The vernier theodolite is not so precise as other advanced designs, such as optical theodolite but is still used largely due to lower cost and simplicity of desig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stem had been adopted internationally. It appears to refer to different and distinct articles grouped together under a common code and identify the specific article coming under the common code. 15.. "Binocular and opera glasses" are used generally for seeing distant objects. The term "telescope" sandwiched between the "binocular" and "opera glasses" and the immediate expression following the telescope, being opera glasses, the expression, "telescope" takes colour and meaning from the company of words, getting associated with it. In this view of the matter, the restricted meaning given to the word "opera glasses" following the word "telescope" has to be ascribed to the "telescope" and such a meaning, in the very nature of things, as rightly pointed out by learned counsel for the assessee-company, cannot at all be given to "theodolite". 16.. "Theodolite" is essentially a survey instrument. It can measure vertically, horizontally and circle reading is also possible. The said instrument "theodolite" consists of several component parts. It consists of metallic base, vertical scales, and also fitted with the telescope. This sort of a thing is getting revealed from the meaning given t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part thereof, which was not sold as an independent item of goods could not be treated as the goods sold; such a fictional sale could not furnish any basis for a computation of taxable turnover." 19.. In Ramavatar Budhaiprasad v. Assistant Sales Tax Officer [1961] 12 STC 286, the Supreme Court was called upon to consider the meaning of the word "vegetables" in item 6 of Schedule II of the C.P. and Berar Sales Tax Act, 1947. What the Supreme Court, in this context said, is thus reflected: "The word 'vegetables' in item 6 of Schedule II of the C.P. and Berar Sales Tax Act, 1947, must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance. It has not been defined in the Act and being a word of every day use it must be construed in its popular sense meaning 'that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it'. It is therefore to be understood as denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table. Consequently 'betel leaves' are not vegetables and would not be exempt from sales tax under item 6 of Schedule II of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd chicory powder. 21.. (a) In British India Corporation Ltd. v. State of Uttar Pradesh [1962] 13 STC 459, the question that fell for consideration before the Allahabad High Court was as to whether, on the face of "woollen carpet yarn" being included in the entry, "woollen goods and knitting wool" in List I of Notification No. S.T. 117/X-923-1948 dated 8th June, 1948, the other classes of woollen yarn should be deemed to have been excluded from that description. (b) What their Lordships of the Division Bench of this Court said, which is relevant, runs as under: "'Woollen carpet yarn', which is yarn made of wool for use in the manufacture of carpets is a variety of 'woollen goods'. Therefore, 'woollen carpet yarn' is included in the entry 'woollen goods and knitting wool' in List I of Notification No. S.T. 117/X-923-1948 dated 8th June, 1948, issued by the State Government under section 3-A of the U.P. Sales Tax Act, 1948, and is chargeable at six pies per rupee and not at three pies. Merely because 'knitting wool', which is a particular kind of woollen yarn, has been specifically added to the general description of 'woollen goods', it does not follow that the other classes of wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apacity Cartridge Fuselink. (b) The question is whether this will attract excise duty under entry 23-B in the First Schedule to the Central Excises and Salt Act, 1944. (c) The entry reads as follows: "23-B. Chinaware and porcelainware.-All sorts-(1) Tableware, (2) Sanitaryware, (3) Glazed tiles, (4) Not otherwise specified." (d) In answering the question, what their Lordships of the Division Bench said, as is getting reflected at page 482 is relevant. It reads as under: "No doubt, the heading of the entry covered porcelainware of all sorts. If we stop there, there is no difficulty in stating that any kind of porcelainware will fall within the entry. But then, when one looks into the itemisation of articles in the entry, doubt arises whether an article like high rupturing capacity fuselinks will be within the ambit of the entry. The enumeration of the articles consists of tableware, sanitaryware and glazed tiles. Fuselink of the type we have here has no possible analogy at all to any of the things mentioned there. It is no doubt true that the fourth item of entry 23-B is 'not otherwise specified' and this phraseology read with 'all sorts' may perhaps justify a contention that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od by the people in the market and not in a technical or scientific sense. One more thing, which is discernible from the survey of the various decisions is that when a goods or product consists of various component products, what was intended for sale was the product as an integrated whole and not its component parts. The survey instrument "theodolite", consisting of different component products, therefore, must have to be viewed a product as a whole, in the sense of a distinct article of trade, commercially understood by the people in the market, as different from telescope, a distinct article of trade. In this perspective, we are of the view that "theodolite", an instrument used for survey purposes, can, by no stretch of imagination, be stated to fall within entry No. 8 of the First Schedule appended to the TNGSTA. 26.. The order of the Joint Commissioner (SMR) of Commercial Taxes, Madras-5, therefore, cannot at all be stated to be sustainable in law. This point is answered accordingly. 27.. In fine, the appeal is allowed. The order of the Joint Commissioner (SMR) of Commercial Taxes, Madras-5 setting aside the order of AAC, restoring the order of the assessing officer, viz., t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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