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TMI Blog2021 (3) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Entry 12, is also assailed in both the writ petitions. 2. The petitioner is a partnership firm and carrying on business as a dealer of cycle, spares and accessories, cycle tyre and tubes. The petitioner is represented by Sri Hardeep Singh, who is one of the partners of the partnership firm. The petitioner states that it is a registered dealer under the Assam Value Added Tax Act, 2003 as well as Central Sales Tax bearing registration Nos. TIN 18520002963 and 18069906417 respectively. 3. That for the assessment year 2009-10 on the sales "cycle fluids/lubricants, seat cover and cycle lock", the petitioner was assessed to tax @ 12.5% up to 31-10-2009 and @ 13.5% from 31st October, 2009 to March, 2010. Similarly for the assessment year 2010-11 on the sales of items "cycle fluids/lubricants, seat cover and cycle locks" the assessee was assessed to tax 13.5%. 4. The challenge to the clarificatory order dated 10-07-2013, the assessment orders dated 20-07-2013 and the revisional order dated 02-05-2015 in the present proceedings are within a short compass. Briefly stated the dispute revolves around whether the "seat covers" and the "cycle locks" which are the specific items on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Taxes and the assessment orders passed. 7. The learned counsel appearing for the department craved leave of this Court refer to and rely upon the affidavit filed in WP(C) No. 3380/2015 in respect of WP(C)/3382/2015 also. 8. In order to delve into the disputes raised by the parties it is necessary to refer the relevant provisions of the Assam Value Added Tax Act, 2003. Under section 10 of the AVAT Act, 2003 the levy of tax on sales in respect of the goods will be at the rates provided therefore in the Schedules appended to the Act. In respect of the goods in question namely, 'cycle seat cover' and 'cycle-lock' a reference will have to be made to the relevant Schedule provided for. Entry 12 of Schedule-II, Part A of the Assam Value Added Tax Act, 2003 (hereinafter referred to as the AVAT Act of 2003) is the entry which provides for the rate of tax to be levied on "Bicycle, Tricycle, Cycle Rickshaw and Tubes and Tyres parts thereof and used for Bicycle, Tricycle, Cycle Rickshaws and wheel chair". The petitioner contends that as seat covers and cycle locks are used for the items mentioned in Entry 12, they are to be considered as "parts thereof" i.e. " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow in pedantic sense but must be given their fullest meaning and widest amplitude and be held to extend to all ancillary and subsidiary matters which can fairly and reasonably to set to be comprehended in them. (ii) Goa Auto Accessories Ltd., Panaji v. Commissioner of Sales Tax, Goa & another:- For the proposition that items which are manufactured and not used as a replacement and cannot be used in other items/vehicles except for the purpose which they are manufactured. (iii) CIT v. Kulu Valley Transport Co. (P) Ltd., (1970) 2 SCC 192:- For the proposition that where two views are possible while interpreting a taxing statute, the view in support of the assessee should be accepted. (iv) Indo-Japanese Industries Ltd. vs. Assistant Collector:- For the proposition that an item that is manufactured specifically for a particular use will have to be considered to be a part of the said item and cannot be excluded from the purview of that item. It will have to be considered to be an essential part of the vehicle/item for which it is used. (v). Annapurna Carbon Industries Co. V. State of A.P. in (1976) 2 SCC 273:- For the proposition that interpretation of taxing statute must be done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and filed submission. They submitted that the items cycle lock and cycle seat cover is only meant for use in cycle and it has no other use. Therefore these are very much parts of bicycle. Further cycle oil and grease is used for bicycles, tricycles and therefore said items are covered by entry Sl. No. 12 of Second Schedule (Part-I) attached to the Assam Value Added Tax Act, 2003. They have also furnished several citations of Court orders which are perused. The entry at serial number 12 of the Part-A of second Schedule to Assam Value Added Tax Act, 2003 reads as "Bicycles, tricycles, cycle rickshaws and parts thereof and tyres and tubes used for bicycle, tricycle, cycle rickshaw and wheel chair", It appears that parts of cycles are taxable @ 5% as per said entry. However, cycle lock and cycle seat cover are regarded as parts of cycle as they are not essential part of cycle without which the cycle cannot be operated. They are accessories to cycle. Hence it is clarified that cycle lock and cycle seat cover are not covered under the said entry. As cycle lock and cycle seat cover is not mentioned under any entry in First, Second, Third and Fourth Schedule, it is clarified that both th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. In order to do that it will be necessary to examine how a "cycle" and a "cycle rickshaw" is understood in common parlance as trade. As the said items are not defined in AVAT Act 2003, recourse will have to be taken to the dictionary meanings provided, in order to to make an attempt to determine the Legislative intent that can be attributed to the expression "parts thereof". 16. (i) According to Encyclopaedia Britannica the meaning provided for Bicycle and Rickshaw are as under:- Bicycle:- Bicycling is a simple, affordable and energy-efficient means of transportation. Of all human-powered locomotion, it is the fastest and least energy-demanding. Rickshaw:- (from Japanese: "human-powered vehicle"), two-wheeled vehicle with a doorless, chair like body and a collapsible hood, which holds one or two passengers and is drawn by a man between two shafts. It was used widely in the Orient but was largely superseded by the pedicab, a rickshaw driven by bicycle. (ii) According to Merriam Webster's Dictionary the meaning provided for Bicycle and Rickshaw are as under:- Bicycle:- A vehicle with two wheels tandem, handlebars for steering, a saddle seat and pedals by which it is pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to mean and include the term "accessories" as used by the Commissioner of Taxes. For the purpose of rendering the term "parts thereof" meaningful in respect of all the items in Entry 12 including Bicycle and Tricycle, the term "accessories" must be understood to be included within the expression "parts thereof". 18. Alternatively, if the use of the expression "parts thereof" is to be understood to be relative only to the item "cycle rickshaw" and not to the other items mentioned in the Entry-12, then the parts which are to be used in order to make a cycle rickshaw suitable for use by the customer will also have to be taxed at the rate prescribed in Entry-12. It is possible that Legislature intended to use the expression "parts thereof" only in respect of 'cycle rickshaw' as because again under the common parlance theory, the sellers/traders like the petitioner are ordinarily found to the selling/trading only in the frame/chasis of a 'cycle-rickshaw' without any fittings necessary for passenger/goods carriage. The fittings for passenger carriage are generally added depending upon such requirements as may be given by the customer. This is because in common parlance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. The ordinary words in everyday use are, therefore, to be construed according to their popular sense. The same view was reiterated by Story, J. in 200 Chests of Tea [(1824) 9 Wheaton US 435, 438] where he observed that the legislature does not suppose our merchants to be naturalists, or geologists, or botanists. See the observations of Bhagwati, J. as the learned Chief Justice then was, in Porritts & Spencer (Asia) Ltd. v. State of Haryana [ (1979) 1 SCC 82 : 1979 SCC (Tax) 38]. But there is a word of caution that has to be borne in mind in this connection, the words must be understood in popular sense, that is to say, these must be confined to the words used in a particular statute and then if in respect of that particular items, as artificial definition is given in the sense that a special meaning is attached to particular words in the statute then the ordinary sense or dictionary meaning would not be applicable but the meaning of that type of goods dealt with by that type of goods in that type of market, should be searched. In the instant case, we have "all kinds of papers including papers subjected to coating, impregnating etc." If there is a market meaning or trade meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustries reported in (2011) 6 SCC 545. In this case, the Apex Court held that in taxing statute nothing is to be read in or implied, one can look sale as the language use. There is no room for any intendment. 29. It is a settled principle of law that the words used in the section, rule or notification should not be rendered redundant and should be given effect to. It is also one of the cardinal principles of interpretation of any statute that some meaning must be given to the words used in the section. The expression "wire rods and wires" which is mentioned in Entry (xv) would not and cannot cover the expression "tools, alloy and special steels" of Entry (ix) nor would it refer to the expression "iron and steel" as each item used in Entries (ix) and (xv) are independent items not depending on each other at all as has been held in Pyare Lal Malhotra [ (1976) 1 SCC 834 : 1976 SCC (Tax) 102]. 30. In arriving at the aforesaid conclusion, we find support from the decision of this Court in Union of India v. Hansoli Devi [(2002) 7 SCC 273] wherein this Court held that it is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not use the term 'accessories', although the same is used in some of the other entries under the same Schedule. Similarly in Entry 19 and Entry 65 and 96 of the said Schedule II Part B, the term "attachment" is also used. Since the present issue pertains to a dispute as to whether the levy of tax should be under Entry 12, Schedule-II, Part A or under Entry-1 of Schedule-V, the interpretation will have to be confined to the language by the Legislature used for Entry 12 under Schedule-II Part-A. Under the circumstances the judgments relied upon by the respondents are distinguishable on facts. 24. As regards the authorities relied upon by the petitioner, the judgment of the Apex Court in the case of MCDOWELL AND COMPANY LIMITED is on the aspect of "Ejusdem generis" which is not relevant in the facts of the present case. The doctrine of "Ejusdem generis" in that judgment is used in the context of the expressions "Tax, Duty, Cess, or fee" to explain that they belong to the same Generis of "Taxation". Therefore, ratio of the said judgment was rendered in the context of facts completely different from the facts involved in the present proceedings. The judgment of the Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he meaning to this entry can only be satisfactorily determined in the light of the language of the entry itself considered in the context in which it occurs. 7. The Entry 4 occurs in a schedule in which descriptions of goods to be taxed indicate that the expression "required for use therewith" has been employed for equipment or accessories connected with the main purpose. For instance, in Entry 5 the expression occurs at the end as follows: "Photographic and other cameras and enlargers, films and plates, paper and cloth and other parts and accessories required for use therewith." Apparently, the deciding factor is the predominant or ordinary purpose or use. It is not enough to show that the article can be put to other uses also. It is its general or predominant user which seems to determine the category in which an article will fall." 25. In view of the discussions and in view of the fact that I arrive at a finding that the impugned order dated 10-07-2013 passed by the Commissioner of Taxes under section 105 of Assam Value Added Tax Act, 2003 has been rendered without a proper finding of fact necessary to arrive at the conclusion that "cycle seat covers" and "cycle locks" are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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