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TMI Blog2019 (2) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... alone entries and are identifiable as such of commercial value, then unless the exemption notification specifically touches upon such entries for the benefit of exemption or concession, the Courts will not rush in to bring all such items which can fit into the general notification even though those items may come within a broad definition - thus, while interpreting different entries, attempts shall be made to find out whether the same answers the descriptions of the contents of the basic entry and only if it is not possible to do so, that recourse to residuary entry should be taken as a last resort. Since the notification extending benefit of 5% VAT has been issued by the State only for minor forest produce and the entry 'Tendu leaves' stands untouched as an item of highest incidence of tax and has been clubbed with some such goods like diesel, petrol, aviation fuel, etc., entries in Part III of Schedule II cannot be pulled out and read into a general notification with the object of extending benefit of the said notification. There is serious error of interpretation has been committed by the learned Single Judge by treating the Tendu leaves as a minor forest produce t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be levied on the taxable turnover of a dealer liable to pay tax under the Act. 5. Section 9 of the VAT Act deals with levy of purchase tax which too has significance, therefore, is reproduced as under: 9. Levy of Purchase Tax . - (1) Every dealer who in the course of his business purchases any goods specified in schedule II from any person other than a registered dealer or from a registered dealer in the circumstances in which no tax under section 8 is payable by that registered dealer on the sale price of such goods except where the goods are tax-paid goods within the meaning of clause (x) of section 2, shall be liable to pay tax on the purchase price of such goods if,- (a) after their purchase, the goods are not sold within the State of Chhattisgarh or in the course of inter-State trade or commerce or in the course of export out of the territory of India but are sold or disposed of otherwise, or consumed or used in the manufacture of goods declared tax-free under section 15 and Section 15(b) which are disposed off otherwise than by way of sale in the course of export out of the territory of India; or (b) such goods covered by Part III of Schedule III and/or Schedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax prescribed in the next higher slab of the rate of tax specified in the Schedule: Provided further that if any goods are transposed by deleting them from one of the parts of the Schedule and inserting or adding them to another, the rate of tax in respect of such goods shall not exceed the rate of tax prescribed in the next higher slab of the rate of tax specified in the Schedule. (2) No notification enhancing the rate of tax, shall be issued under this Section without giving in the Gazette such previous notice as the State Government may consider reasonable of its intention to issue such notification; (3) Every notification issued under sub-section (1) shall, as soon as may be, be laid on the table of the Legislative Assembly. 15-B. Saving - The State Government may, by notification and subject to such restrictions and conditions as may be specified therein, exempt whether prospectively or retrospectively,- (i) (a) any class of dealers; or (b) any goods or class of goods, in whole or in part, from the payment of tax under this Act for such period as may be specified in the notifications; (ii) any dealer or class of dealers from any provision of this Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minor forest produce was notified to carry an incidence of taxation of 5%. 10. When the Federation imposed VAT at the rate of 25% on purchase of Tendu leaves upon the purchasers, they made such payments but decided to challenge such demands on the ground that since the Tendu leaves is also a minor forest produce, therefore, it will come within the ambit of concessional rate of tax of 5% and the Federation should be directed to refund the excess 20% VAT, which they were compelled to pay or demand was made. 11. It was urged before the learned Single Judge that the VAT Act does not contain a definition of 'minor forest produce'. A submission was made that no entry or item known as 'minor forest produce' was initially indicated. The Chhattisgarh State Forest Policy, 2001 ( for short 'the Forest Policy' ) defines non timber forest produce which includes Tendu leaves as a 'minor forest produce' and therefore, when exemption or a reduced rate of tax is notified, the exemption notification should be given the widest meaning. 12. The Petitioners before the writ court relied on a judgment of Hon'ble Supreme Court in the case of M/s. Zunaid Ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpreting different entries, attempts shall be made to find out as to whether the same answers the description of the contents of the basic entry and only in the event it is not possible to do so, recourse to the residuary entry should be taken by way of last resort. 48. There cannot be any quarrel with the proposition that construction of the word is to be adopted to the fitness of the matter of the statute. But for determining the said question, several factors which would be relevant are required to be gone into. The trade or commercial meaning or the end-user context would, thus, be a relevant factor. 16. It was further argued that where a statute contains both a general provision as well as a specific provision, the specific provision will prevail over the general provision. 17. Attention of the Court was also drawn to a decision of the Hon'ble Supreme Court rendered in the case of Commercial Tax Officer, Rajasthan Vs. Binani Cement Ltd. Another , reported in (2014) 8 SCC 319. The issue before the Hon'ble Apex Court was whether the Company's application for grant of eligibility certificate for exemption from payment of Central Sales Tax and Rajast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. ...When the words of a section are clear, but its scope is sought to be curtailed by construction, the approach suggested by Lord Coke in Heydon case, (1584) 3 Rep 7a, yield better results: To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope, and object of the whole Act: to consider, according to Lord Coke: (1) What was the law before the Act was passed; (2) What was the mischief or defect for which the law had not provided; (3) What remedy Parliament has appointed; and (4) The reason of the remedy. (emphasis supplied) 49. It leaves no doubt that what is specific has to be seen in contradistinction with the other items/entries. The provision more specific than the other on the same subject would prevail. Here it is subject specific item and therefore as against items 1, 4, 6 and 7, which deal with units of all industries and not only cement, item 1E restricted to only c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically included the Tendu leaves, but that not having been done, it was not open to the learned Single Judge to expand the ambit of the exemption notification and try to read into it even goods which have been separately shown as an entry carrying different rates of tax leviable thereon. 21. The State has also, in their appeal which is Writ Appeal No. 632 of 2018 has brought on record a notification dated 23.07.2004 as Annexure A/4 which is issued by the Commercial Tax Department to show the list of minor forest produce. This Schedule issued under the power conferred under Section 17 of the Chhattisgarh Vanijyik Kar Adhiniyam, 1994 gives a clear idea as to what kind of minor forest produce was exempted even then under the old legislation and significantly, Tendu leaves does not figure in the said Schedule. 22. Argument is further advanced especially on behalf of the State that the Tendu leaves is a valuable forest produce and is one of the major sources of revenue for the State. It has special significance from the point of view for revenue and that is the reason why it has been included in Part III of Schedule II alongwith the products like diesel, petrol, aviation fuel, et ..... X X X X Extracts X X X X X X X X Extracts X X X X
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