9911796707
TMI Blog1996 (10) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactures broken betel-nuts mixed with menthol and those are known and sold in the market as betel-nuts, but under the brand name Neelam . These are not sold or known in the market as pan masala. The product called pan masala are sold under various trade names or descriptions such as, pan masala, pan pasand, pan parag, pan tarang, talab, pran ranjan, etc. The Neelam brand betel-nuts manufactured by applicant do not serve the purpose of pan masala and are completely different from it as described under the West Bengal Luxury Tax Act, 1994 (hereinafter referred to as 1994 Act ). The taste of betel-nuts manufactured by applicant is also different from that of pan masala. In the market, if a person wants to buy pan masala, he will be given that item, but not Neelam brand betel-nuts manufactured by applicant. Hence, the betelnuts manufactured by applicant are not one of the luxuries within the meaning of 1994 Act and no tax is payable by applicant on the turnover of stock of the same. On August 25, 1995 respondent No. 1 and a number of Inspectors of Bureau of Investigation arbitrarily seized various types of betel-nuts and other spices from the shop room of the applicant at 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as mouth refresher does not alter the character of the goods as determined by the Act which treats them as luxuries. The goods are pan masala, because broken betel-nuts are mixed with menthol. Those goods also serve the purpose of pan masala. It is denied that the product is known and sold as supari . The applicant used various trade names like Rasvari, Nurjehan, etc., under the brand Neelam in order to differentiate the luxuries from betel-nuts. The further case of respondents is that betel-nut is merely an ingredient or substance, but the product is an admixture of menthol and broken betel-nuts which is used as masala for pan , and it is nothing but pan masala and one of the luxuries under 1994 Act. The other goods seized from the applicant are notified goods or Schedule IV goods under the West Bengal Sales Tax Act, 1994 and those were seized under the provisions of that Act. That seizure is the subject-matter of another case, RN-175 of 1995 since disposed of. Conditions precedent for assumption of jurisdiction for seizure were allegedly fulfilled in this case. Respondent No. 1 had reason to believe prior to the seizure that the applicant had manufactured luxuries and sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad received an information about attempted evasion of tax through his superior officers. The report contains the recorded reason for which respondent No. 1 proceeded to seize. He was of the opinion that the goods in question were luxuries within the meaning of 1994 Act; and from the fact of holding a huge stock of such luxuries without a licence under section 6 there was reason to believe that Sekhar Agarwal, partner of the applicant-firm was a stockist who was attempting to evade payment of luxury tax. Pages 11 to 14 of the affidavit-in-opposition are the seizure receipt under section 13(1) of 1994 Act and its annexures being lists of goods seized. Page 11 is the first page which is in a cyclostyled form of seizure receipt under section 13(1) of the West Bengal Luxury Tax Act, 1994. Pages 12 to 14 tally with pages 19 to 21 of the main application, while page 18 of annexure A of the main application is in a cyclostyled form of seizure receipt under the West Bengal Sales Tax Act, 1994. Both the papers carry the signatures of respondent No. 1 and witness Kishanlal Agarwal. Page 18 of the main application does not carry any signature of recipient of the copy of seizure receipt b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , pan pasand, pan parag, pan tarang, talab, prem ranjan or any other name or description: (a) betel nuts, locally known as supari; (b) cardamom, locally known as elach; (c) cloves, locally known as labanga; (d) aniseed, locally known as mauri; (e) cassia, locally known as darchini; (f) menthol. [In order to indicate the words given in italics, I have underlined them.] 6.. It has been argued by Mr. Sumit Kumar Chakraborty, learned advocate for the applicant, that the goods manufactured and stocked by applicant which were seized, were known in trade parlance not as pan masala , but as supari . But Mr. M.C. Mukhopadhyay, learned State Representative, contended that there is no proof that in trade parlance the seized goods are known as supari, and further that when the Act of 1994 has already defined pan masala in item 4 of the Schedule, there is no scope for invoking the trade parlance meaning. By analysing item 4 of the Schedule to 1994 Act, we find that the said item specifies a category of goods as pan masala , perfumed or treated otherwise, of any form or description. Thus, clearly the expression, pan masala has not been used by the Legislature in a rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion not involving an expression like, that is to say , and hence the court distinguished the earlier two decisions. 8.. Mr. Chakraborty also referred to a few other cases. He referred to Royal Hatcheries Pvt. Ltd. v. State of Andhra Pradesh [1994] 92 STC 239 (SC); 1994 (53) ECR 200 (SC). In that case the item under the Andhra Pradesh General Sales Tax Act, 1957 which came under consideration read as: Livestock, that is to say, all domestic animals such as, oxen, bulls, cows, buffaloes, goats, sheep, horses, etc. . The question was whether day-old chicks came under that item. It was held following the decision in Rajasthan Roller Flour Mills Association [1993] 91 STC 408 (SC); 1993 AIR SCW 3118 that the meaning and purpose of the expression, that is to say , is that those are words of limitation ; in other words, because of those words, livestock contemplated in the item was confined to the domestic animals referred to therein. The words such as used in that item were construed as illustrative and not exhaustive, but it was also held that such expressions occurring in sales tax enactments should be understood in the sense in which people conversant with the subject-matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an pasand, pan parag, pan tarang, talab and prem ranjan , the names or descriptions illustrated in the item. We shall presently see, following the arguments of applicant s advocate, what are the ingredients of the articles sold under the given names. Mr. Chakraborty also cited State of Orissa v. Jyoti Trading Company, a Division Bench judgment of Orissa High Court, reported in [1993] 88 STC 530. The question was whether jam, jelly, tomato sauce and squash were covered by item (4) of rule 93-K of the Orissa Sales Tax Rules, 1947. That item (4) read as: food and beverages in sealed containers such as Maltodex, Maltova, Horlicks .........condensed milk . It was held: Only such of them which are contained in sealed containers, and are akin, similar or of the kind of specific goods mentioned in the latter part of the item , are covered by item (4) of rule 93-K. In that item under the Orissa Rules, the specified goods were not mentioned as mere names or descriptions. Moreover, there, the expression that is to say , was not used. Hence, it is difficult to apply that judgment to the present case. Next, the case of Commissioner of Sales Tax v. Jabalpur Aerated Water Factory, a Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the article should be commonly known as pan masala. Mr. Chakraborty, appearing for applicant, further contended that the common ingredients of the samples which are admitted by the applicant to be pan masala are catechu and lime (he showed this from the printed declaration on samples produced before us) while those two ingredients are absent in the articles manufactured by the applicant, and hence these are not pan masala. But this contention is wholly contradictory to the definition because catechu and lime are not among the specified substances and, therefore, their presence or absence in any article cannot be a determining factor. He further said that at the time of seizure respondents described the articles as mouth refresher which is not a luxury item under 1994 Act. As regards calling the articles as mouth refresher , it will suffice to say that it is wholly immaterial to the dispute before us. 9.. Mr. M.C. Mukhopadhyay, learned State Representative appearing for respondents, contested all the contentions of Mr. Chakraborty. He argued that when the statute has already given a definition of pan masala in item 4, the test of common parlance meaning will not apply. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note that the third and the fourth parts of the definition are exhaustive in defining or describing pan masala as contemplated in item 4, but another qualification or condition is commonly attached to both the third and fourth parts. Any such combination falling within third or fourth part of the definition should be sold under various trade names or descriptions such as pan bahar, pan pasand, pan parag, pan tarang, talab, prem ranjan or any other name or description . The word and precedes the above expression. It means that any combination of specified substances falling within the third or the fourth parts of item 4 should also be sold under some trade name or description. The Legislature did not stop by giving certain names or descriptions after such as . It also said that such combinations may be sold under any other name or description. The attempt of Mr. Chakraborty, learned advocate for the applicant, was to apply the rule of ejusdem generis to these last words- or any other name or description . It may be tempting to apply ejusdem generis rule in such a case, but having regard to the entire definition in item 4, the rule should not be applied here. It is difficult to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les produced before us on behalf of applicant admittedly as pan masala , are really so. 12.. It is well-settled that where the statute or the statutory rule does not give a definition of an item, the item should be interpreted according to its popular meaning, viz., the meaning attached to it by those dealing in them and not by scientific or dictionary meaning. A reference may be made to the case of United Offset Process Pvt. Ltd. [1989] 74 STC 81 (SC); AIR 1989 SC 622. But in the present case, as rightly argued by the learned State Representative, for respondents, the principle will not apply, because the statute itself has given a complete definition of pan masala in item 4 of the Schedule. The seized goods which are manufactured products for sale by applicant are, therefore, to be adjudged according to the definition in item 4, and not by the common parlance meaning, if any. We should agree with the learned State Representative that nothing has been adduced before us to establish the claim of the applicant that the seized goods are popularly known as mere supari , and not as pan masala . From an analysis of the definition in item 4 it will be clear that the Legislature took ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
