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TMI Blog2005 (12) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... Phulwaria, P.O. Barauni, District-Begusarai (Bihar). The petitioner informed the assessing authority on September 2, 2005 that he is importing calcined petroleum coke which does not fall within the purview of the U.P. Tax on Entry of Goods Act . However, the assessing authority passed an order on September 26, 2005, relying upon the apex court judgment in the case of India Carbon Ltd. v. Superintendent of Taxes, Gauhati [1971] 28 STC 603, copy of which is annexure 2 to the petition. Controversy, in the instant case between the petitioner and the assessing authority depends upon interpretation of entry 17 mentioned in the Schedule notified under section 4(1) of the U.P. Tax on Entry of Goods Act. The petitioner has filed an extract of the said Schedule as annexure 3 to the petition. Complete text of the Schedule, however, is part of the compilation of material and judgment filed by the petitioner in this case. For convenience, said Schedule is reproduced below: Schedule of the U.P. Tax on Entry of Goods Act, 2000 SCHEDULE [See section 4(1)] 1. Aluminium ore, metal and scrap and aluminium rolled products and extrusion products. 2. Chemicals of all k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutes goods which are of special importance in inter-State trade or commerce. Section 15 of the Central Act as it stood at the relevant time was in the following terms: S. 15. Every sales tax law of a State shall, inso far as it imposes or Authorises the imposition of a tax on the sale or purchase of declared Goods, be subject to the following restrictions and conditions, Namely,:- (a) the tax payable under that law in response of any sale or purchase of such goods inside the State shall not exceed (two per cent) of the sale or purchase price thereof, and such tax shall not be levied at more than one stage: (b)... It may be mentioned that by Amending Act 13 of 1966, 3 per cent was substituted for 2 per cent with effect from July 1, 1966. It is not disputed that if petroleum coke is covered by clause (i) of section 14 which reads 'coal including coke in all its forms' the State was not competent to levy tax at a rate exceeding the one given in section 15(a) of the Central Act. Before the High Court it was common ground that petroleum coke is used mainly in industries dealing with the manufacture of carbon products and it differs in material constituents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tood as it is understood and received by general public in day-today use or its commercial purposes without adding or extracting anything therefrom. It is further submitted that expression coal used in the Schedule in question cannot and should not be interpreted by taking external help; viz., with reference to expression used in other statutes or control order. Case of the petitioner is that the words . . . .including coke in all its forms are conspicuously absent while the entry coal finds place in the Schedule in question. Absence of words including coke in all its forms while describing entry 17 is conspicuous and reflects clear intention of the Legislature/State Government not to include coke . Carrying his argument further it is contended that coal and coke are two different commodities/substances distinctly understood and dealt with differently by all those persons dealing with the two commodities. In support of his argument learned counsel for the petitioner referred to entries 2, 4, 6, 12, 14 and 21 of the Schedule in question wherein a general substance/common substance was sought to include other categories. It is significant to note that while includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd used as fuel; the principal varieties are bituminous coal, anthracite, and lignite. 2. A piece of coal as broken for use; such pieces collectively; in Great Britain commonly used in the plural. 3. A fragment of burned wood; charcoal. Coal may appear as a combination form in hyphemes or in solidemes, or in two-word phrases, as in: Coal ashes coal-dark coal-heaver Coal barge coal-dealer coal-laden Coalbin coal-dealing coalmine Coal-black coal deposit coal-miner Coal-blue coal-digger coal-mining Coalbox coal-digging coalmonger Coal bunker coal district coal-producing Coal-burning coal-eyed coal-rich Coal-consumer coal-fired coal strata Coal-consuming coal furnace coalyard Coke: (kok) n. Slang Cocaine. 3.. The Concise Oxford Dictionary: Coal: n. v. n. 1a. a hard or blackish rock, mainly carbonised plant matter, found in underground seams and used as a fuel and in the manufacture of gas, tar, etc. b. Brit. A piece of this for burning 2. a red-hot piece of coal, wood, etc. in a fire. v. 1 intr. 'take in a supply of coal 2. tr. Put coal into (an engine, fire, etc.) 'coals to Newcastle' something brought or sent to a place where it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 1 of Part III of Schedule II reads as follows: '1. Coal, including coke in all its forms 2 per cent.' Entry 1 of Part VI of the said Schedule reads as follows: '1. All other goods not included in Schedule I or any other part of this Schedule. 4 per cent'. We reproduce a passage from the aforesaid judgment which read: The result emerging from these decisions is that while construing the word 'coal' in entry 1 of Part III of Schedule II, the test that would be applied is what would be the meaning which persons dealing with coal and consumers purchasing it as fuel would give to that word. A sales tax statute, being one levying a tax on goods, must, in the absence of a technical term or a term of science or art, be presumed to have used an ordinary term as coal according to the meaning ascribed to it in common parlance. Viewed from that angle, both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include 'charcoal' in the term 'coal'. It is only when the question of the kind or variety of coal would arise that a distin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduct of groundnut oil was not accepted. 7.. 'Coke' is a hard, cellular mass of carbonaceous material. Coke is essentially a partially graphitised and cellular form of carbon. Coke is solid residue that remains after certain types of bituminous coals are heated to a high temperature out of contact with air until substantially all of the volatile constituents of the coal have been driven off. The residue consists principally of carbon. Encyclopaedia Britannica, Vol. 6 (1973 Edition, page 35). The division Bench held that coal descendants shall be included in the expression coal . We do not find as to how the aforesaid division Bench decision help the respondents. The expression used in the Schedule in the aforesaid case of Khanna Coke Industries [1987] 64 STC 335 (All) [App] was to the effect coal including coke in all its forms, but excluding charcoal. The division Bench referred to the Supreme Court judgment in the case of India Carbon Ltd. [1971] 28 STC 603 and came to the conclusion that coke descendants were included in the aforesaid expression. The case in hand is converse of the aforesaid case inasmuch as the Schedule in question does not use the incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he term coal and coke came up for consideration as early as in the year 1891 in the case of Fletcher v. Fields [1891] 1 QBD 790, wherein A. L. Smith, J. observed: . . . In this case we are asked to hold that the Legislature included something else when it said coal and cokes: but the two articles, coal and coke, were then well known and might have been both specified. The Act imposes a prohibition upon the public as to two specified articles only, and imposes penalties. Why should we stretch the provisions of the Act so as to extend the prohibition and penalty to another article? I think that we are not at liberty to do so. It is admitted that cinders are not within the prohibition as to coal, and it seems to me that coke is no more coal than cinders are. I think we ought not to add a further prohibition to the absolute prohibition, as to two named articles, imposed upon the public by this section. The decision of the Magistrate was wrong, and the conviction must be quashed. Grantham, J. I am of the same opinion. This is a statutory restriction upon the liberty of the public, and must not be extended beyond its precise terms . . . It is now well-settled rule of i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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