9911796707
TMI Blog2007 (4) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... rit of fellow-feeling and to do all activities for the welfare of all the members of the society. As a matter of fact, all the members of the society are engaged in the manufacturing tea and for the purpose the members are required to purchase GTL from the farmers and/or cultivators who cultivate GTL on their own land. Learned advocate has submitted that these small farmers do not fall within the definition of dealer as defined under the West Bengal Sales Tax Act, 1994 and, as such, they are not registered dealer. It is alleged that the sales tax authorities while making assessment of the members of the society as a manufacturer of tea is levying purchase tax on the purchase of GTL from the farmers and/or cultivators. Such purchase tax is levied on the ground that GTL is purchased from the unregistered dealers for use in the manufacture of tea. The members of the society are holding eligibility certificate for remission of tax. Such purchase tax is being adjusted with total remission of tax allowed to them. Further, it is also alleged that while the farmers and/or cultivators are selling GTL to the members of the society, the farmers and/or cultivators are charging sales tax. So th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is argued that GTL can, by no stretch of imagination, be treated as plant or vegetable as specified in Schedule I. It is contended that persons engaged in growing GTL and making sales of the same to the tea manufacturers are dealers within the meaning of clause (10) of section 2 of the Act, 1994. It is submitted by the learned State Representative that there are certain tests to find out when a farmer and/or cultivator has crossed the boundary of cultivator and/or farmer and become a dealer. Because of being a farmer and/or cultivator, one cannot be excluded from the ambit of the definition of the dealer. The points to be decided in this case are: I. Whether the GTL is non-taxable item either as per serial No. 40 or serial No. 86 of Schedule I or not. II. Whether purchase tax is payable under section 13(1)(a) of the West Bengal Sales Tax Act on the purchase of GTL from the cultivators and/or farmers. It is well-settled that if a statute does not provide any definition of an item in Acts relating to sales tax, Customs Act or the Central Excises Act, the meaning as commonly understood in the trade circle is to be attributed. In Collector of Customs, Bombay v. Swa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same in the trade. Such an expression or entry is not to be understood generally in a scientific or technical sense, where the scientific or technical sense is in conflict with the common parlance meaning . . . The Tribunal in the said case further pointed out (page 316): The expression 'plant' as finds place in entry 47 cannot have been used in comprehensive botanical concept so as to include the entire range of vegetable kingdom from shrubs to giant trees, otherwise it would include timber being part of a tree (if viewed from Mr. Mukherjee's concept that all parts of a plant come under the expression). In Ashwani Kumar and Company [1999] 114 STC 318 the Tribunal applied the aforesaid principle and held (page 322): 10. Following this principle it can be said that whenever it becomes necessary to determine whether an undefined expression appearing in a statute takes within its fold another expression to which a particular meaning has been attached in the trade to which the latter is associated or by those dealing in them, the said common or trade parlance meaning is to be attributed to the latter expression in deciding the matter. In the case before us, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the expression plant as used in entry No. 40 of Schedule I of the VAT Act. The learned advocate has cited the decision of the honourable Supreme Court of India in the case of Commissioner of Sales Tax, Lucknow v. D.S. Bist [1979] 44 STC 392. This decision was taken in a different context. It was held in that case that the tea leaves after subject to processing like withering in shadow in rooms on a wooden floor, crushing by hand or foot and roasting on mats, covering by the wet sheets for generating fermentation, etc., do not cease to be the agricultural produce and are not exigible to sales tax within the scope of the U.P. Sales Tax Act, 1948. As such, the decision taken by the apex court in the above referred case has no applicability in the present case. Alternatively, the learned advocate has claimed that if the GTL does not cover by the word plant as mentioned in serial No. 40 of Schedule I, it would be covered by serial No. 86 as vegetable. The word vegetable in serial No. 86 has been explained as commonly known as sabji, tarkari or sak other than dry chilli . Thus vegetable means sabji, tarkari or sak which can be cooked for meal. The honourable Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he situation, the so-called cultivators and/or farmers are no doubt dealers as defined in the Act for the purpose of selling GTL. The learned advocate has cited a decision of this Tribunal in the case of Hesanadhi Jay Industries v. Commercial Tax Officer [2000] 120 STC 419. In this case, the Tribunal held that the cultivators are not dealers in the context that the petitioner purchased jute stick from the cultivators. In the above referred case, the learned State Representative contended that sellers of jute sticks may be cultivators but that ipso facto cannot lead to a conclusion that in the matter of sale of jute stick to the applicants they were not acting as middlemen. This Tribunal observed that the identity of a man as a cultivator ipso facto leaves no scope for an inference that he is just a middleman if the respondents assert that they are middleman. The onus was on them to prove the same and there was nothing on record to make such an inference. In the present case on the basis of enclosed xerox copy of the purchase vouchers we hold that the members of the petitionersociety are liable to pay purchase tax on the purchase of GTL from the suppliers even though they may be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
