9911796707
TMI Blog2016 (3) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... or who is desirous to put up construction would use of the bricks for the purpose of construction of a building. Therefore, the common meaning of bricks is that which could be used for construction purposes with the help of cement and sand for outer finishing and also for aligning of bricks. If one thinks, of bricks, at the first instance, country made bricks made out of clay would come within such category but the Legislature intended to include refractory bricks, fly ash bricks in addition to country made bricks. Therefore, it has also used the words “all kinds of bricks”. It is true that the language used is to include all kinds of bricks and therefore, one may say that the bricks made out of any preparation, other than fly ash bricks or refractory bricks can also be included. But, two aspects need to be emphasized here. One, is that the language used is “and the like” and the another, is that the general use of bricks is for constructions of various types of building. Under the circumstances, if the product or item is marketed as bricks, it is for the purpose of construction and in common parlance bricks are used for construction and all such bricks used for construction c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n tiles . 4. On 08/09/2006, the second appellant issued a clarification in purported exercise of power under Section 59 of the KVAT Act and observed that bricks of particular sizes came within the scope of Entry No.2; rest of the bricks/blocks would be taxable under residuary entry at the rate of 12.5%. On 05/03/2010, the first appellant acting upon the clarification issued by the second appellant issued notices calling upon the respondents to furnish the books of accounts such as sale invoices and purchase invoices etc., for the assessment periods of 2005-06, 2009-10. The respondent submitted reply stating that they have already produced the books of accounts for the respective assessment years before the DCCT (Audit) and as the books are taken up for the audit by the DCCT (Audit) for verification under Section 39(1), there was no need for the first appellant to interfere with the jurisdiction of the Deputy Commissioner. 5. However, on 26/03/2010, the first appellant issued show cause notices proposing to levy VAT at 12.5% on paving bricks/blocks treating them as falling outside entry No.2 of Schedule III. On 05/04/2010, the first appellant proceeded to pass an order for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of bricks. In her submission, paving bricks/blocks are also a type of brick and when the Legislature has used the expression all kinds of bricks and further, the definition is inclusive, it should be expansively read so as to include paving bricks/blocks also. She submitted that she wished to rely upon certain examples where paving bricks/blocks are used for construction of compound wall also. Alternatively, it was contended that if the meaning of brick is to be considered in the context of construction only, even then flooring in the compound or in the garden is also a kind of construction. It is her submission that the meaning of the expression construction should not to be restricted to construction of walls of a building only. She submitted that, had the entry in the schedule intended a limited meaning to be given to only construction of walls, then asphalted roofing sheet or earthen tiles would not have been included. Keeping in view the said aspects, learned counsel for the respondents has supported the view taken in the impugned order. She has also relied upon various decisions in support of her contentions, which we would be referring to in the latter part of the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute; full effect should be given to all the words used therein. If a particular article would fall within a description, by the force of words used, it is impermissible to ignore that description and denote the article under another entry, by a process of reasoning. The meanings given to articles in a fiscal statute must be as people in trade and commerce, conversant with the subject, generally treat and understand by them in the usual course. If an expression is capable of a wider meaning as well as narrower meaning the question whether the wider or the narrower meaning should be given depends on the context and the background of the case. But once article is classified and put under a distinct entry, the basis of the classification is not open to question. Technical and scientific tests offer guidance only within limits. Once the articles are in circulation and come to be described, then, there is no difficulty for statutory classification under a particular entry. The classification of the said goods for the purpose of levy under the Central Excise Act, furnishes no guidance for determining the rate of levy under the State Sales Tax Act. The definition of a word given for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning (See Abley V.Dale 11, C.B.378). The aforesaid decision enunciates that the popular meaning attached to a product mentioned in an entry by persons who are dealing in the same or what is known as common parlance test has to be taken into consideration and applied. It has been further observed that the grammatical or ordinary sense of the words used is to be adhered to, unless it would result in absurdity or some repugnance or inconsistency with the rest of the entry. 10. Thus, in the matter of construction of general words such as All kinds of bricks found in of Entry No.2 of Third Schedule, we could rely on what has been stated by Justice G.P.Singh in his celebrated work, Principles of Statutory Interpretation. 13th Edition. The cardinal rule is that general words in the statute must be given a general construction, unless there is something in the Act itself, such as subject matter with which the Act is dealing or context in which such words are used, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the said rule of construction can be usefully applied. Further, the rule cannot be used to make one of the associated words wholly redundant. Thus, while we have given a wide meaning to the word bricks to include every kind of brick, yet the expression must take its colour from the other words used in the entry such as and the like . 13. Several decisions could be adverted to at this stage: (i) In M/s.Parakh Foods Ltd. vs. State of A.P [AIR 2008 SC 2012], the expression such other used in Rule 37-D of prevention of Food Adulteration Rules, 1955 came up for consideration and it was held that the said expression had to be read with the subject matter in which they had been used. The expression such other was in the nature of a residuary clause of the rule and had to be read in light of the ten prohibited expressions preceding that class. Then, it would become clear that what was prohibited were only those expressions which were exaggeration of the quality of the product that is, ten prohibited expressions used in Rule 37(D) with regard to the labeling of the product which would tend to exaggerate the quality of the product. (ii) In another decision of the Hon ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant case, the general words. All kinds of Bricks precede the specified words. (v) In Commissioner of Income Tax, Udaipur, Rajasthan vs. Macdowell and Company Limited, [(2009) 10 SCC 755], it was held that when particular words pertaining to a class, category or genus are followed by general words, the general words are construed as limited to the things of the same kind as those specified. (vi) In the case of M/s.Rohit Pulp and Paper Mills Ltd. vs. Collector Of Central Excise, Baroda [(1990) 3 SCC 447 = AIR 1991 SC 754], the point for consideration was, whether art paper and chromo paper manufactured from unconventional raw materials were entitled to concessional rate of tax prescribed by the Notification No.25/1984. Those two types of papers fell under category printing and writing paper and those two articles also fell under the description coated paper used in the second proviso to the notification. It was held that the only reasonable way of interpreting the expression coated paper was in a narrower sense consistent with the other expressions used in the second proviso to the notification. Thus, coated paper was held to refer only to coated paper used for in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed is and the like and the another, is that the general use of bricks is for constructions of various types of building. Under the circumstances, if the product or item is marketed as bricks, it is for the purpose of construction and in common parlance bricks are used for construction and all such bricks used for construction can be said to be included. 15. The attempt on the part of learned counsel for the respondent to contend that laying the flooring in a compound or in the garden is also a part of construction activity cannot be accepted for the reason that if such a wide meaning is given to the word construction it would result in an absurdity by equating to construction whereas there is no construction, in the strict sense of the term, while paving or laying a flooring with bricks. While giving a meaning to the word construction one would normally consider the general meaning of the word construction to something to be raised above the surface of the earth and it may also be below the earth s surface, but would not include construction on the level of the earth or on the surface of the earth and not raised above the surface of the earth. If the aforesaid aspects a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcial parlance for a particular general use. But the aforesaid observations are made only for the purpose of examining the contention of respondents though the composition of the product in the present case for the purpose of making distinction between bricks and paving bricks/blocks has a very little role to play rather, no role to play when the entry is interpreted. 19. We may now refer to the decisions upon which reliance has been placed by the learned counsel for the respondents in the case of State of Maharashtra vs. Bradma of India Limited [2005(2) SCC 669], the question considered by the Apex Court was when the specific entry is available, whether the residuary entry could be resorted to. The principles laid down by the Apex Court in the said decision, even if applied to the facts of the present case, would be of no assistance to the respondents because if it is found that paving bricks/blocks are included in Entry 2 of Schedule III naturally there would not be any question of resorting to residuary entry. The converse also applies. 20. In the decision of Apex Court in the case of Brindavan Bangle Stores vs. Assistant Commissioner of Commercial Taxes [2000(1) SCC 674], ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.20/2009 and another, is of Karnataka Appellate Tribunal in STA No.364/2007 decided on 15/06/2012 and 23/05/2008 respectively. In view of the examination of the matter by distinguishing between bricks and the floor bricks or pavers we cannot agree with the view taken by the Gujarat Tribunal as well as Karnataka Appellate Tribunal. Hence, we find that the said views of the Tribunal are not correct. 25. In view of the aforesaid observations and discussion, the conclusion recorded in the impugned order cannot be sustained. 26. Apart from the above, we do notice that in normal circumstances, the Court while exercising power under Article 226 of the Constitution of India would have relegated the parties to the alternative statutory remedy of preferring appeal or revision, as the case may be. It is only in exceptional circumstances this Court may make a departure there from and exercise its power under Article 226 of the Constitution of India. In any case, even if this matter is considered as being an exceptional category so as to exercise power under Article 226 of the Constitution of India, then also, in view of the observations and discussion referred herein above, we do not fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
