9911796707
TMI Blog2012 (1) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... d keeping in view the common parlance meaning of utensils. Even otherwise, the view which has been taken by the Commissioner runs counter to the Division Bench judgment of this court in the matter of Yadav Metal Industries v. Commissioner of Sales Tax, M.P. reported in [1979 (12) TMI 137 - MADHYA PRADESH HIGH COURT]. Thus, the impugned order passed by the Commissioner under section 70 of the Act restricting the meaning of "utensils" to the items used in the kitchen cannot be sustained and is hereby set aside. The matter is remanded back to the Commissioner for deciding the matter afresh - Writ Petition No. 767 of 2011 - - - Dated:- 17-1-2012 - SHANTANU KEMKAR AND PRAKASH SHRIVASTAVA, JJ. For the Appellant : G.M. Chaphekar, Senior C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed the present writ petition. 3. The stand of the respondent is that the petitioner had furnished the quarterly returns under the Act disclosing the turnover taxable at four per cent till July 31, 2009 and at five per cent after August 1, 2009 and had paid the tax accordingly and there was deemed assessment under section 20-A of the Act. The petitioner's case was later taken in scrutiny. Further case of the respondent is that the Commissioner has rightly passed the order under section 70 of the Act and has rightly held that except for water jug, the other items in question are taxable at 13 per cent under entry 1, Part IV of Schedule II of the Act, and therefore, the Commercial Tax Officer has rightly issued the notice for making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble of a wider meaning as well as narrower meaning the question whether the wider or narrower meaning should be given depends on the context and the background of the case. The Supreme Court in the matter of Mukesh Kumar Aggarwal Co. v. State of Madhya Pradesh reported in [1988] 68 STC 324 (SC) has held that (pages 326 and 327 in 68 STC): 4. In a taxing statute words which are not technical expressions or words of art, but are words of everyday use, must be understood and given a meaning, not in their technical or scientific sense, but in a sense as understood in common parlance, i.e., 'that sense which people conversant with the subject-matter with which the statute is dealing, would attribute to it'. Such words must be under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 1 of Part IV of Schedule II which reads as under: 1. All other goods not covered by Schedule I and Parts I to III of this Schedule. 12. Entry 1 of Part IV of Schedule II is a residuary entry and it is the settled position in law that the residuary entry should be applied as a last resort when a particular item is not found to be covered by any other entry of the Schedule. 13. Entry 6 of Part II of Schedule II is very wide entry which covers all kinds of utensils and enamelled utensils except those which are expressly excluded from the entry, i.e., utensils made of precious metals and handmade utensils. 14. The question that arises for consideration is in respect of the common parlance meaning of the word utensils since i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Division Bench of this court in the matter of Yadav Metal Industries v. Commissioner of Sales Tax, M.P., reported in [1980] 46 STC 30 (MP) while considering the similar issue has taken note of the ordinary dictionary meaning of utensils to include any article useful or necessary in a household and has held that the entry cannot be restricted to cover those utensils only which are generally used in kitchen. 18. The Division Bench of the Karnataka High Court in the matter of Stovekraft Pvt. Ltd. v. State of Karnataka reported in [2006] 147 STC 329 (Karn) while examining the similar entry in respect of the stainless steel vacuum flask and other items held that (pages 333 and 334 in 147 STC): 13. From the aforesaid meaning assigned to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has taken the view that utensils mean any article useful or necessary in a household commonly used in a kitchen, but the said restricted meaning in respect of use in the kitchen only cannot be approved in view of the earlier Division Bench judgment of this court in the matter of Yadav Metal Industries [1980] 46 STC 30 (MP). 20. The similar entry came up for consideration before the Chhattisgarh High Court in the matter of Kamesh Traders v. State of Chhattisgarh [2012] 52 VST 120 (Chhattisgarh) passed in W.P. No. 6975 of 2008 decided on December 2, 2010 wherein the Chhattisgarh High Court has taken the view that entry makes no distinction between the utensils on the basis of the material for making the utensils except precious meta ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
