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TMI Blog2019 (10) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... be treated under Entry 55 Part III schedule II. In the present case, the assessee is supplying compressed air and cooled air and, therefore, the compressed air includes all types of gases. It has to be charged under Entry 55 Part III schedule II. The apex Court in the case of ROYAL HATCHERIES PVT. LTD. VERSUS. STATE OF AP [ 1993 (10) TMI 85 - SUPREME COURT] has held that the rule-making authority chose to limit the meaning of 'livestock' in the said clause only to domestic animals mentioned therein and it was also held that the use of words 'such as' indicate that what are mentioned thereafter are only illustrative and not exhaustive - It was also held that the clause which is subject matter of scrutiny in the aforesaid case, ends with the words 'etc.,' which does mean that some more domestic, in addition to those specifically mentioned therein, are also included within the meaning of the word 'all domestic animals'. Thus, this Court is of the considered opinion that the entry No. 55 Part III Schedule II is very specific and clear on the subject as all type of gases such as Oxygen and Nitrogen are covered under it and air which is also a mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x should have been levied on the compressed air and cooled air @ 13.8% as these goods are covered under Entry 55 of Part III Schedule II of the Act of 1994 which relates to ( All types of gases, such as Oxygen, Hydrogen etc., ). An appeal was preferred in the matter before the appellate authority ie., the Dy. Commissioner of Commercial Tax, Indore, however, the appeal was dismissed by order dated 1/7/2011 and thereafter a Second Appeal was preferred before the M. P. Commercial Tax Appellate Board. The appellate Board by order dated 16/1/2018 in appeal No. A-666/CTAB/11 has partly allowed the appeal, however, has held that the rate of tax in respect of the compressed and cooled air has rightly been made applicable ie., 13.8% under Entry 55 of Part III of Schedule II of the Act of 1994. An application was preferred in the matter by the assessee for referring the substantial question of law u/S. 70(1) of the MP Commercial Tax Act, 1994 and accordingly the Board has referred the matter to this Court for answering the question of law. In the present case, the basic question which is required to be answered is whether the commodity compressed air and cooled air, is cove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluded in the entry. It has been further contended that air contains a number of particles of Metal, Dust and Carbon as well as other impurities and it is a mixture of number of gases. Heavy reliance has been placed upon the judgment delivered by the Hon'ble Supreme Court in the case of State of Jharkhand and others Vs. La Opela RG Limited reported in 2014 (70) VST 342 (SC) . Reliance has also been placed upon the judgment delivered in the case of Foremost Dairies Ltd., Vs. State of Orissa reported in 1993 (88) STC 535 (Orissa) and it has been contended before this Court that the commodity in question ie., compressed air and cooled air can never be said to be covered under Entry 55 as it includes all types of gases such as and since there is no specific entry in respect of the compressed or cooled air in other Schedule, therefore, it has to be treated as Entry falling under Chapter 39 Part IV Schedule II of the MP Commercial Tax Act, 1994 (residuary entry). It has been further contended that in case the commodity in question is tested on common parlance / common sense / popular test, air and gases are considered to be two different commodities. It has been further stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case, the following substantial question of law has been referred to this Court for an answer : Whether on the facts and in the circumstances of the case, the M. P. Commercial Tax Appellate Board was right in holding that the commodity compressed air and cooled air has rightly been assessed to tax under Entry No. 55 (All type of gases such as Oxygen, Hydrogen etc.,) of Part III of Schedule II of the M.P. Vanijyik Kar Adhiniyam, 1994 in the reassessment, instead of residuary Entry No. 39 of Part IV, Schedule II, of the M. P. Vanijyik Kar Adhiniyam, 1994 as in the original assessment ? In the present case, the basic question which is required to be answered is whether the commodity, compressed air and cooled air, is covered under Entry 55 Part III of Schedule II , or is covered under Entry 39 Part IV Schedule II of the MP Commercial Tax Act, 1994. The relevant entries under the MP Commercial Tax Act, 1994 reads as under : (1) Entry 55 of Part III Schedule II of the Act All types of Gases such as Oxygen, Hydrogen etc., (2) Entry 39 of Part IV Schedule II of the Act All other goods not included in Schedule I o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein. That is the effect of the words that is to say . The meaning and purport of the words that is to say is explained by this Court in Rajasthan Roller Flour Mills Assn. v. State of Rajasthan'. They are words of limitation. In other words because of the use of the said words, the livestock contemplated by the said clause becomes confined to the domestic animals referred to in the said clause. 'Livestock' is, ordinarily speaking, not confined to domestic animals. As held in Peterborough Royal Foxhound Show Society v. IRC2 the word 'livestock' takes in 'animals' of any description. But the rule-making authority chose to limit the meaning of 'livestock' in the said clause only to domestic animals mentioned therein. Yet again, the clause does not stop with the words all domestic animals . It proceeds further and goes on to illustrate the meaning of the expression all domestic animals by mentioning some of them, namely oxen, bulls, cows, buffaloes, goats, sheep and horses and then ends with the word etc. . This could not have been without a purpose. It could only be to indicate the type of domestic animals the rule-making authority had in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as precious metals and not as 'metals'. This brings to our mind another illustration. Diamonds are stones so are there several semiprecious stones used in carvings in marble. They are referred to as precious or semi-precious stones. When one speaks of stones, he does not mean to include 18 (1923) AC 175 : 39 TLR 106 the precious and semi-precious stones therein - unless, of course, the context drives him to do so. Coming back to the popular sense, chicks are referred to as 'birds' - not as 'animals'. That this is the sense in which the said word is used is borne out by the type of animals mentioned in the clause by way of illustration. All of them are animals - domestic animals, to wit, oxen, bulls, cows, buffaloes, goats, sheep and horses. It is significant to notice that not one of them belongs to the birds' category. No doubt, the word 'etc.' follows the said words but then in the context, it would be reasonable and appropriate to say that while animals like dogs and cats - without trying to be exhaustive - may be covered by the said clause by virtue of the word etc. , chicks cannot certainly be included therein. To do so wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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