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TMI Blog2016 (11) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... e invoked in case, with liberal construction to the specific entry, the product could not be found to be forming part thereof - appeal allowed - decided against Revenue. - VATAP No. 73 of 2011 (O&M) - - - Dated:- 27-10-2016 - MR. RAJESH BINDAL AND MR. HARINDER SINGH SIDHU, JJ. For The Appellant : Mr. Amar Pratap Singh, Advocate For The Respondent : Ms. Mamta Singla Talwar, Deputy Advocate General, Haryana Rajesh Bindal J. 1. The present appeal was admitted for consideration of following substantial question of law on 27.1.2012, arising out of the order dated 29.7.2011, passed by Haryana Tax Tribunal at Chandigarh (for short, 'the Tribunal') in Sales Tax Appeal No. 105 of 2010-11: Whether the tissue paper would be covered by Entry 57 Schedule 'C' of the Haryana Value Added Tax Act, 2003, which is assessable at the rate of 4% or it is assessable under the Residue Entry at the rate of 12.5% ? Arguments of the appellant 2. Learned counsel for the appellant submitted that the appellant is engaged in the business of manufacture and sale of tissue paper, napkin, toilet paper rolls, kitchen wipes and facial tissues. All along, the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a determinative factor for the purpose of taxation or to find out as to whether the product falls in Entry 'A or Entry 'B'. There is no scope for intendment in a taxing statute. Words have to be given their purposive meaning. Residuary Entry is to be invoked only if the product does not fall in the specific Entry. Heavy onus in that case is on the State. Common parlance test is to be applied with reference to the persons, who are dealing in the product. As per the market survey conducted by the appellant, which was placed before the authorities, the goods manufactured by the appellant are treated as 'paper'. To limit the product 'paper', as mentioned in the Entry, only to the extent of use for writing or printing, drawing, packing or decorating or wall paper is not legally sustainable, as Entry 57 of Schedule 'C' of the Act does not specify any such uses. 4. In support of his arguments, reliance was placed upon Division Bench judgment of Kerala High Court in Cochin Cadalas (P) Ltd. v. State of Kerala, (2008) 16 VST 319 (Ker), where craft paper was held to be included in the Entry merely mentioning paper. Reliance was also placed upon the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant does not fall in any of the aforesaid categories, hence, will not be covered under the Entry. In State of Orissa v. Gestetner Duplicators (P) Ltd., (1974) 33 STC 333 (Orissa), stencil paper was not held to be 'paper'. In Commissioner of Sales Tax, U. P. v. Masneill and Barry Ltd., Kanpur, AIR 1986 SC 386, 'ammonia paper' and 'ferro paper' was not held to be forming part of the Entry, which provided for 'paper' other than hand-made paper. The judgment of Karnataka High Court in Super Market's case (supra) is clearly against the appellant, as in that case even 'tissue paper' was held to be not falling in the Entry providing for 'paper'. Regarding interpretation of entries with reference to paper or its products, reference was further made to judgments of Karnataka High Court in STA No. 36 of 2010-- 3M India Limited v. State of Karnataka, decided on 30.8.2012 and STRP Nos. 389- 435 of 2012-- M/s Raman Boards Ltd. v. The State of Karnataka, decided on 20.8.2014. She further submitted that the judgments sought to be relied upon by the appellant are distinguishable on facts. While mentioning the goods in different Schedule, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 18.1.2010, the Financial Commissioner opined that the Entry uses the generic term 'paper', hence, the items covered therein would be craft paper, news print paper etc. The products being manufactured by the appellant are meant for specific purpose, hence, could not be included. Reference was also made to Central Excise Tariff entries. The opinion expressed by the Financial Commissioner and Principal Secretary to the Government of Haryana was upheld in appeal filed by the appellant before the Tribunal vide order dated 29.7.2011. Four out of five Members of the Tribunal, while relying upon the judgment of Karnataka High Court in Super Market's case (supra), where the product, classification of which was the issue, was regarding paper napkin. It was found to be not forming part of the Entry containing 'paper', but was found to be forming part of the Entry containing toilet articles. Case law 12. In Mukesh Kumar Aggarwal Co. v. State of Madhya Pradesh and others, (1988) 68 STC 324 and Annapurna Carbon Industries Co. v. State of Andhra Pradesh, (1976) 37 STC 378, Hon'ble the Supreme Court opined that user test , i.e., the test, the use to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carbon copy. Referring to the judgments of different High Courts dealing with 'ammonia paper and ferro paper' [Kilburn Co. Ltd. v. Commissioner of Sales Tax, U. P., Lucknow, (1973) 31 STC 625] and 'stencil paper' [Gestetner Duplicators (P) Ltd.'s case (supra)], it was opined that carbon paper cannot be said to be a paper. The word 'paper' as such was not defined in the Act. The definition, as referred to in various dictionaries, was not exhaustive as it has used the word 'etc.' towards end. 16. The consistent opinion expressed by Hon'ble the Supreme Court is that the observations made in a judgment must be read in the context in which they appear to have been stated. The judgments are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary to embark into lengthy discussions, which is meant to explain and not to define. Judges interpret words of statutes; their words are not to be interpreted as statues. Reference can be made to judgments of Hon'ble the Supreme Court in Bharat Petroleum Corporation Ltd. v. N. R. Vairamani, (2004) 8 SCC 579 and Inbasegaran and another v. S. Nata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of paper would automatically be excluded from the first Entry. It was further opined therein that in a taxing statute, there is no room for any intendment. The words must be given true meaning. Relevant paras thereof are extracted below: ...... Item 94 of the First Schedule to the Act is in two parts. Item 94(i) speaks of 'paper'. It is appropriate to state that the normal legislative practice whenever such expressions are used in the entries attached to the Schedule to the Act, is to use the expression immediately after using generic name of the commodity, 'paper of all kinds', but, whenever they included or excluded certain types of paper, it was made clear by appropriate provision. In the absence of any inclusion or exclusion in the expression paper , it can be said that it included all kinds of paper. Sub-entry (ii) in item No. 94 of the First Schedule to the KGST Act, speaks of newsprint, cardboard, paper products, note books and printed materials including greeting cards. Therefore, such of those commodities which are enumerated in sub-entry (ii) of entry 94 of the First Schedule to the KGST Act are excluded from sub-entry (i) of entry 94 of the Act, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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