9911796707
TMI Blog2001 (4) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... in the course of inter-State trade or commerce. The concession is by way of reduction in the rate of tax at 50 per cent of the tax so payable on increased sales vis-a-vis such sales in the base year 1984-85 up to 50 per cent and at the rate of 75 per cent of the tax so payable on increased sales made over and above the aforesaid 50 per cent, in the manner and subject to the conditions as detailed in the notification. The notification related the eligible increased sale in respect of which partial exemption could be claimed with the percentage of sales during the accounting year 1984-85 (hereinafter called "the base year ") by a dealer. Envisaging the contingency that the dealer, who is manufacturing the goods, may or may not be in existence in 1984-85, the base year, in relation to which the increase in sales in the course of inter-State trade or commerce to the extent envisaged is to be computed, made the specific provision in the notification. The notification in question reads: S.O. 23.-In exercise of the powers conferred by section 8(5), Central Sales Tax Act, 1956 (Central Act 74 of 1956), the State Government in supersession of the Finance Department Notification No. F4(72) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of which partial exemption could be claimed by him could not be related to its own sales in the course of inter-State trade or commerce and despatches to head office, branch office, depot or agent outside the State for sale outside the State during base year (accounting year 1984-85). Therefore, the increased sales in the course of inter-State trade or commerce of such goods as are manufactured by it within the State of Rajasthan has to be related to the percentage of quantum of goods sold in the inter-State trade or commerce out of the total quantum of goods sold within the State in respect of "other manufacturers in the State in the relevant industry during the accounting year 1984-85". 5.. The assessee's contention in this regard is that the relevant industry in the context can only mean primarily the industry engaged in manufacture of such goods, as are manufactured by the claimant, which is situated within Rajasthan. In this regard vis-a-vis the petitioner the only industry engaged in manufacture of white cement could be considered as the other manufacturer in relevant industry. The only manufacturer which was in existence in Rajasthan prior to January 1, 1985 engaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of carrying out computation of the partial exemption benefit under the aforesaid notification has been placed on record as annexure "A" attached to annexure 6 by the petitioner, which is as under: INDIAN RAYON INDUSTRIES LTD. WHITE CEMENT DIVISION Comparative chart showing determination under notification dated May 6, 1986. Sl. No. Type of sales As determined by Assistant Commissioner, Special Circle-I, Jodhpur, vide his letter dated 25-4-1998 As per order dated 4-12-1987 in the case of M/s. Shri Ram Fertilisers and Chemicals, Kota Actual despatches of JKWC Goton 1 Sales within State 22.22% 17% 02.92% 2 Inter-State sales 26.13% 18% 24.60% 3 Sales outside State/branch transfer 52.65% 65% 72.48% 8.. It is true that broadly speaking the expression "cement" is a generic term which includes within its ambit all types of cement of whatever nature which have the adhesive value and are used in construction. However, the notification dated May 6, 1986 is not concerned with the cement as a commodity for special treatment for partial exemption but it deals with all "goods manufactured by the dealers". The term "goods manufactured" does not refer to a genus which embrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acturing goods in the State of Rajasthan, may claim partial exemption from the tax payable in respect of the sales by him of such goods in the course of inter-State trade or commerce by way of reduction at the rate of 50 per cent of the tax so payable on increased sales made over and above the aforesaid 50 per cent, in the manner and subject to the conditions as follows." 10.. It clearly says that a dealer who is having his place of business in the State of Rajasthan and manufacturing goods in the State of Rajasthan, he is entitled to claim partial exemption in respect of sales by him of such goods in the course of inter-State trade or commerce. The expression "such" here could only classify the specie of goods manufactured by the dealer having his place of business in the State of Rajasthan and the exemption is also in respect of increased sales of goods so manufactured by him, and with no other. That being so, in clause (1) the total quantum of goods sold within the State and in the course of inter-State trade or commerce and despatches to head office, branch office, depot or agent outside the State for sale outside State during the accounting year 1984-85 can only relate to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmercial parlance in the commercial world is concerned, from white cement is well fortified by a large number of precedents. 12.. In this connection, reference may be made to the decision in M/s. Purbachal International (1985) 21 ELT 673 (Cal). The question fell for consideration before his Lordship was whether ordinary portland cement and white cement are two different commodities? The issue had arisen in the case arising under the Central Excise Tariff and in the context of exim policy. The two-fold contentions were raised; one on the basis of the treatment given to the "White cement" different from ordinary portland grey cement under the Import Cement (Control) Order, 1978 and secondly that white cement is a different commercial commodity in the commercial parlance. The contention of the assessee on both counts was accepted firstly because the Import Cement (Control) Order dealt with specifically and distinctly with that part of it. However, independent of the Control Order the court examined other materials, viz., the booklet issued by the Indian Standard Institution under the name and style "Indian Standard Specification for White Portland Cement" and considered the conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 ELT 673. A learned single Judge in that judgment has discussed at length the properties of ordinary portland cement as against the properties of white cement. He has set out the relevant portions of a booklet issued by the Indian Standard Institution under the title 'Indian Standard Specification for White Portland Cement'...................We respectfully agree with these findings of the learned single Judge." 14.. In this connection, reference may also be made to the principle laid by the Supreme Court in Dunlop India Ltd. v. Union of India (1976) 2 SCC 241, which held that "in interpreting the meaning of words in a taxing statute, the acceptance of a particular word by the trade and its popular meaning should commend itself to the authority". So meaning given to articles in fiscal statute must be as people in trade and commerce conversant with the subject generally treat and understand the same in the usual course and that technical and scientific tests offer guidance only within limits. Once the articles are in circulation and came to be described and known in common parlance, the court should find no difficulty for statutory qualification under a particular entry. 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of cement would fall within the category of specific cement than any other non-specific, non-descript entry of residuary items not specifically provided for elsewhere. 17.. The question before us is not whether the white cement can be considered as falling in the entry "cement" for the purpose of Schedule of rates but question is whether goods manufactured known in the commercial market as "white cement" is distinct from all other types of cement as a goods manufactured by other dealers in commercial parlance. If the term in a generic sense has been used in Schedule of rates without excluding any particular specie thereof from its purview then all items falling in that general term would be encompassed within it for the purpose of applying the rate and a special entry in the Schedule in that event would be considered including all types of cement to be taxed under that entry only to the exclusion of other entry unless otherwise specified. This distinction would be apparent from the decision relied on by the learned counsel for the respondents in P. Rama Rao Sons v. State of Orissa [1990] 77 STC 303 (Orissa). That was a case in which Orissa Sales Tax Act has used two entries i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t mean identical and therefore the relevant industry must not be confined to industry engaged in manufacture of identical goods as are manufactured by the dealer in question and for that purpose he placed reliance on Nat Steel Equipment Pvt. Ltd. v. Collector of Central Excise [1988] 69 STC 58 (SC). 22.. Suffice it to say that the expression used in the present case is not the "similar industry" but the expression used is the "relevant industry". The "similar" only refers to alike as the industry which may not be identical but the term "relevant industry" has direct reference to have relations with other objects which in the present case is the manufacturing of goods which are manufactured by the dealer claiming the partial exemption, in relation to whom the other manufacturer in the relevant industry are to be identified for the purposes of determining the requisite values in the base accounting year 1984-85 because the petitioner himself had not started manufacturing its goods before January 1, 1985. 23.. The result of the aforesaid discussion is that this writ petition is allowed, the impugned communication dated April 25, 1998 (annexure 5) is quashed and the respondents are ..... 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