9911796707
TMI Blog2003 (8) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, 1992. Till March 31, 1992 those items were treated under section 5(1)(ii) of the Act. 3.. In T.R.C. Nos. 95, 142, 143 and 153 of 2001 the assessing authority as well as the appellate authority treated yeast as a chemical and hence the respondents in those cases were the appellants before the Tribunal. In T.R.C. Nos. 134, 141, 150 and 154 of 2001 the assessing authority treated yeast as an unclassified item and in suo motu revision the Deputy Commissioner reversed the findings of the assessing authority and directed assessments in those cases to be made treating yeast as a chemical and therefore, respondents/ assessees were the appellants before the Tribunal. In T.R.C. Nos. 135 and 204 of 2001 the assessing authority treated yeast as a vegetable preparation coming under entry 56; but the first appellate authority reversed the finding of the assessing authority and treated yeast as an unclassified item and therefore State was the appellant before the Tribunal in those two cases. The Tribunal held that yeast is not a chemical, but a micro living organism which is not classified and hence directed the assessments to be completed treating yeast as an unclassified commodity. Aggriev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of yeast as "any unicellular fungus that reproduces vegetatively by budding or fission". The Medical Dictionary also attributes the same meaning to yeast. Encyclopaedia Britannica describes yeast as "any of certain economically important single-celled fungi". It is further stated that "in food manufacture yeast is used to cause fermentation and leavening. The fungi-feed on sugars, producing alcohol (ethanol) and carbon dioxide; in beer and wine manufacture the former is the desired product, in baking, the latter. In sparkling wines and beer some of the carbon dioxide is retained in the finished beverage. The alcohol produced in bread making is driven off when the dough is baked". Encyclopaedia Americana describes yeast as "a tiny living plant". "It makes the bread light and tender; it also adds flavour". Sri. S.C. Dubey, a Baking Technician of repute of U.S. Wheat Associates, New Delhi, has done an extensive research on yeast and its functions. It is profitable to refer to the following passage: "Yeast is unicellular microscopic plant. Its structure consists of cell wall, protoplasm, and vacuole. It requires food (in the form of simple sugar), moisture and temperature climate for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stry is "the science of the properties, of substances, elementary and compound and the laws of their combination and action one upon another". Chemical is that which is "relating to chemistry". The dictionary further attributes the meaning to chemical as "a substance obtained by chemical means or use in chemical operations". 10.. Though dictionaries are not generally meant for resolution of legal issues, yet it is one source of information relating to an issue. It may be seen that the expression "chemical" is generally attributed to mean a substance obtained in or used for chemical operation. Necessarily the substance is a chemical. It is one thing to say that a substance is a chemical and yet another thing to say that an organism is capable of chemical operation. A chemical process may be there in fermentation since the fungi-feed on sugars and produce alcohol and carbon dioxide. But it is to be noted that the organism that is used in the process is fungus. It needs no research to understand that fungus is a non-green plant and includes such forms as mushroom, mould, rust and puffball. As we have already noted above yeast is a unicellular fungus. All the authorities referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that "........we are called upon to decide as to whether yeast is 'chemical' and not the question as to whether 'yeast' can be appropriately classified as living micro-organism". Thus the decision though heavily relied on by the learned Government Pleader, is distinguishable on those two major counts: Firstly the court was considering whether yeast powder obtained by a process using molasses and ammonia is a chemical. We have already held that there cannot be any quarrel that any substance obtained by using a chemical substance can be termed as chemical. Secondly it has to be seen that the court was not deciding the question as to whether yeast is a living micro-organism whereas in the instant case the question which we have been analysing is as to what is yeast. In other words, what we have tried to analyse is as to what is yeast and not what is there in yeast. For the purpose of understanding an entry in a taxing statute it is sufficient to understand as to what is the item. 13.. An article to be taxed may be capable of producing different results in different operations. But it is not proper to take into consideration all those processes or effects or results for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere made of glass. However, the court in unmistakable terms made it clear that an entry if otherwise unambiguously clear, it must be understood in that sense. "If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted." 15.1. The contention of the learned Government Pleader is that even assuming that yeast is not a chemical, applying the common parlance theory and functional test it should be treated as a chemical. That contention cannot be accepted. For the mere fact that an article can be used for different purposes cannot mean that the assessing authority shall have wide discretion to tax it under one or other entry. The discretion of the assessing authority shall essentially be limited by the entry. It is also a settled position that the provisions of a fiscal statute have to be strictly construed. On these aspects also sufficient authentic guidance is available in many decisions of the Supreme Court. In Mukesh Kumar Aggarwal Co. v. State of Madhya Pradesh [198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of some material produced before it, held that gelatine is not a chemical. However, the Madras High Court, without examining or adverting to the findings of the Tribunal, and without any additional material before it, took the view that gelatine fell within the description of chemical. The apex Court did not approve of the approach of the High Court. It was held that the High Court was not justified in interfering with the decision of the Tribunal, the last fact-finding body, in the absence of any additional material and unless it is found by the High Court that the finding of the Tribunal was either based on no evidence or irrelevant evidence or incorrect principles. It is significant in this context to note that the apex Court took note of the materials relied on by the Tribunal regarding the nature and composition of gelatine and the process undertaken to manufacture it. (Gelatine is a protein obtained from collagen which originates from animal kingdom mainly from skin and bones with suitable pressure). In the instant case, as already seen yeast, a living organism, is multiplied either by budding or fission and is not chemically manufactured. Looking at the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
