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TMI Blog2019 (1) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... t. In its basic nature, it continued to be agricultural produce. In the instant case, it is taken note of that the expression agricultural produce appearing in entry 21(a) of the Notifications No. 3/2013-ST dated 01.03.2013 and 6/2015-ST dated 01.03.2015 are issued under the provisions of the Finance Act of 1994, where Section 65B(5) of the Finance Act of 1994 defines agricultural produce as such:- agricultural produce means any produce of agriculture on which either no furtherer processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market. - As the expression agricultural produce has been defined in the Finance Act of 1994 and the concerned notifications, wherein the said expression appears are also issued under the provisions of the said Act of 1994, it has to be understood that the expression agricultural produce used in the two notifications are not used in a similar context as prevailed in the matter before the Supreme Court in DS Bist [1979 (9) TMI 168 - SUPREME COURT OF INDIA], wherein the said expression was explained and a meaning given to it. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be stated that tea now stands included within the meaning of the expression agricultural produce as appeared in Entry-21(a) - As a conclusion had already been arrived that Entry-21(a) of the Notification No.3/2013-ST dated 01.03.2013 does not include tea even after the amendment brought in by the Notification No.6/2015-ST dated 01.03.2015, the other contention of the petitioners that where two views are possible, the view in favour of the assessee is to be accepted, is inapplicable in the present case. The contention of the petitioner that tea was included within the meaning of the expression agricultural produce as appearing under Entry- 21(a) of the Notification No.3/2013-ST dated 01.03.2013, and it continues to remain included even after the amendment incorporated by the Notification No.6/2015-ST dated 01.03.2015, the contention of the writ petitioners that they are entitled for an exemption from service tax in respect of its transportation by a goods carriage agency in a goods carrier is found to be unacceptable. Petition dismissed - decided against petitioner. - W.P. (C) Nos. 7863, 7888 and 7896 of 2017 - - - Dated:- 12-10-2018 - Achintya Malla Bujor Barua J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued for an amount of ₹ 1,42,796/-. The demand cum show cause notice in respect of Budlapara tea estate has been assailed in WP(C) No.7863/2017, in respect of Taluk tea estate, it has been assailed in WP(C) No.7888/2017 and in respect of Pengree tea estate, it has been assailed in WP(C) No.7896/2017. 5. Mr. A. Mazumder, learned senior counsel for the petitioners assails the aforesaid three demand cum show cause notices by raising a contention that under the relevant notifications in force, there is an exemption on the imposition of service tax including cess in respect of transportation of tea. Hence according to Mr. A. Mazumder, learned senior, counsel all the three demand cum show cause notices are therefore, without any authority of law and as such liable to be interfered. 6. In order to substantiate his contention, Mr. Mazumder, learned senior counsel refers to the Notification No.30/2012-ST dated 20.06.2012 of the Govt. of India in the Ministry of Finance, Department of Revenue. The said notification issued in exercise of the powers under Section 68(2) of the Finance Act of 1994 notifies certain taxable services as stated therein and also the extent to which servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pulses in a goods carriage; (b) goods where gross amount charged for the transportation of goods on a consignment transported in a single goods carriage does not exceed one thousand five hundred rupees; or (c) goods, where gross amount charged for transportation of all such goods for a single consignee in the goods carriage does not exceed rupees seven hundred fifty; 9. By the later Notification No.3/2013-ST dated 01.03.2013 Entry 21 of the Notification No.25/12-ST dated20.06.2012 was substituted in the following manner:- 21. Services provided by a goods transport agency, by way of transport in a goods carriage of a) agricultural produce, b) goods, where gross amount charged for the transportation of goods on a consignment transported in a single carriage does not exceed one thousand five hundred rupees, c) goods, where gross amount charged for transportation of all such goods for a single consignee does not exceed rupees seven hundred fifty, d) foodstuff including flours, tea, coffee, jiggery, sugar, milk products, salt and edible oil, excluding alcoholic beverages, e) chemical fertilizer and oilcakes, f) newspaper or magazines register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1979) 4 SCC 741 in paragraph-15, tea in its basic nature continues to be an agricultural produce. According to Mr. A. Mazumder, learned senior counsel transportation of agricultural produce by a goods transport agency in a goods carriage having been retained for exemption from the purview of service tax including cess as per Entry-21 (a) and tea also being an agricultural produce as held by the Supreme Court, therefore, the petitioners continue to be entitled for an exemption from the purview of service tax including cess for transportation of tea by a goods carriage agency in a goods carriage. Mr. A. Mazumder, learned senior counsel in order to substantiate his submission refers to the provisions in paragraph 6, 7 and 15 of the decision rendered in DS Bist (supra) which is as follows:- 6.The question for consideration is whether on the findings aforesaid it can be justifiably held in law that the leaves lost their character of being an agricultural produce and became something different. It should be remembered that almost every kind of agricultural produce has to undergo some kind of processing or treatment by the agriculturist himself in his farm or elsewhere in order to br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ix processes enumerated above from the primary findings of fact recorded in the order of the Revising Authority were necessary for the purpose of saving the tealeaves from perishing, making them fit for transporting and marketing them. The process applied was minimal. 15. The question before us is whether after the tea leaf had been put through the process of withering, crushing, roasting and fermentation it continued to be agricultural produce. If the Calcutta High Court can be said to have laid down that as a result of those processes the tea leaf ceased to be agricultural produce, I am unable to agree with it. To my mind, the tea leaf remained what it always was. It was tea leaf when selected and plucked. and it continued to be tea leaf when after the process of withering, crushing and roasting it was sold in the market. The process applied was intended to bring out its potential qualities of flavour and colour. The potential inhered in the tea leaf from the outset when still a leaf on the tea bush. The potential surfaced in the tea leaf when the mechanical processes of withering, crushing and roasting, fermenting by covering with wet sheets and roasting again were applied. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns this Court has pronounced that Revenue cannot be permitted to take a stand contrary to the instructions issued by the Board. It is a different matter that an assessee can contest the validity or legality of a departmental instruction. But that right cannot be conceded to the department, more so when others have acted according to such instructions . 16. Mr. A Mazumder, learned senior counsel also refers to the proposition laid down by the Supreme Court in State of Karnataka and Others vs- Balaji Computers and others reported in (2007) 2 SCC 743 in paragraphs 35, 39 and 42 to substantiate his submission that in case of there-being any doubt in the event where an exemption notification admits two views, which is not clear and unambiguous, the view which is beneficial to the assesee will have to be taken and further the rule of construction by reference to contemporanea exposition is a well established rule for interpreting a statute by reference to exposition it had received from the contemporary authority, though it must give way where the language of the staute is plain and unambiguous and further that even if it is assumed that the provision of an exemption notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provide for tea to be included as a food stuff, does not in any manner take away the inclusion of tea as an agricultural produce under Entry-21(a), which remains as such even after the amendment incorporated by the notification of 01.03.2015. 19. To arrive at a conclusion as to whether the aforesaid contention of Mr. A. Mazumdar, learned senior counsel for the petitioners is to be accepted in the manner it had been contended, it would be relevant to examine as to under what context the Supreme Court in DS Bist (Supra) had arrived at the conclusion that tea is also included as an agricultural produce and as to whether the meaning to be attributed to the expression agricultural produce appearing in the Notification No.3/2013-ST dated 01.03.2013 as well as in the Notification No.6/2015-ST dated 01.03.2015 would also have to be given the same meaning or keeping in view the provisions of law under which the said two notifications were issued, the expression agricultural produce would have to be given a different meaning. 20. In DS Bist (Supra), the issue before the Supreme Court was whether the expression agricultural produce appearing in the proviso to Section 2(i) of the UP Sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners would have to be accepted. Accordingly, the meaning given by the superior Court to the expression agricultural produce would also have to be understood to have the same meaning when the said expression or ward is used in a subsequent legislation. But, it is also taken note of that the aforesaid meaning to the expression agricultural produce was given while interpreting the proviso to Section 2(i) of the UP Sales Tax Act, 1948, where no such definite meaning was sought to be given by the said Act to the expression agricultural produce. 24. In the instant case, it is taken note of that the expression agricultural produce appearing in entry 21(a) of the Notifications No. 3/2013-ST dated 01.03.2013 and 6/2015-ST dated 01.03.2015 are issued under the provisions of the Finance Act of 1994, where Section 65B(5) of the Finance Act of 1994 defines agricultural produce as such:- agricultural produce means any produce of agriculture on which either no furtherer processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market. 25. As the expression agricult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same expression appearing in a subsequent legislation, but if the subsequent legislation defines the same expression and gives a meaning different to the technical or popular sense meaning, the expression as defined by the subsequent legislation would have to be accepted and would prevail over the technical or popular sense meaning given by the superior Court earlier. 29. From the aforesaid aspect, it is to be taken note of that the agricultural produce has been defined for the purpose of the Finance Act of 1994 u/s 65B(5) of the Finance Act of 1994. Accordingly, whatever meaning transpires from the definition of the expression agricultural produce given u/s 65B(5) of the Finance Act of 1994 would prevail while interpreting the said expression as it appears under Entry-21(a) of the Notifications No.3/2013-ST dated 01.03.2013 and No.6/2015-ST dated 01.03.2015, which are admittedly issued u/s 93 of the Finance Act of 1994. 30. When the definition of agricultural produce as it appears u/s 65B(5) of the Finance Act of 1994, is examined, it is discernible that agricultural produce means any produce of agriculture on which either no further processing is done or such processing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the same item both under Entry 21(a) and 21(d), at least one such entry between the two entries would become surplus and redundant. The principle of interpretation of statutes clearly provides that any interpretation which renders a provision to be irrelevant and redundant is to be avoided. 33. By following the such principles of interpretation, the contention sought to be raised by the petitioners that tea is included under Entry 21(a) as well as under Entry 21(d) of the Notification No.3/2013-ST dated 01.03.2013 would be unacceptable inasmuch as, if the said contention is accepted either Entry 21(a) providing for agricultural produce to be inclusive of tea or the Entry 21(d) also providing for tea as a food stuff, for the purpose of exemption from the purview of service tax, would become irrelevant and redundant. In order to save the situation, the only possible interpretation that can be given to Entry 21(a) and Entry 21(d) of the said notification of 01.03.2013 would be that Entry 21(a) providing for agricultural produce does not include tea and the authorities by including tea under Entry-21(d) had deliberately left out tea from being included under Entry-21(a). Such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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