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TMI Blog2023 (10) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... facturing processes becomes a different article or remains the same is: how is the product identified by the class or section of the people dealing with or using such product - In the aforesaid Judgment, the question that arose for consideration was under what tariff item glass mirror would fall, and glass screens fitted in motor vehicles as wind screens, rear screens, window screens would fall under which competing tariff item. Adjudicating this question, this Court held that glass sheet after successive stage of processing undergoes a complete transformation to become a glass mirror and a different commercial product with a reflective surface. There is no vagueness in the notification dated 07.09.1981 and the entry No. 4 is clear and unambiguous namely it has brought within the sweep all goods and wares made of glass exigible to tax but not including plain glass panes and the exemption being the creation of the statute itself, it has to be construed strictly and even if there is any vagueness in the exemption clause must go to the benefit of the revenue. The impugned judgments would not call for interference and accordingly the appeals are dismissed. - M/s TRIVENI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 784 dated 07.09.1981. The appeals filed against the said assessment orders came to be dismissed and the imposition of tax @15% came to be upheld. The appellate authority also relied on the meaning of the word goods as reflected in circular dated 28.09.1993 for arriving at a conclusion that only plain glass sheet has been taken as unclassified item and not the goods in question. The assessee was unsuccessful before the Trade Tax Tribunal. The contentions raised and grounds urged contrary to the findings recorded by the assessing officer and the appellate authority also did not find favour by the tribunal. In other words, the orders of the authorities came to be affirmed by the tribunal. The assessee pursued its grievance before the High Court by filing a revision petition contending that plain glass panes which are commercially known as sheet glass includes sheet glass both in tinted and non-tinted forms and the entry plain glass panes cannot be interpreted to exclude the tinted glass from its purview. The contention of the appellant that manufacturing of tinted/coloured glass is the same as that of uncoloured glass also did not find waiver by the tribunal. Hence, the revision a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd plain and panes to contend that there is no distinction between these two commodities. He submits that adding of colour will not take away the tinted glass sheet out of the ambit of exclusion clause of Entry No. 4 of Notification No.5784 dated 07.09.1981. 8. He would rely upon the description of the expression glass and glass sheet given in Indian Standard Specification for Flat Transparent Sheet Glass (Third Revision) March, 1988 to substantiate his contention. He would also submit that the revenue has failed in its attempt to discharge the burden and demonstrate that a particular item falls in a particular entry. He would submit that in the earlier assessment year the assessing authority itself had treated the tinted glass sheet as plain glass sheet and as such for the assessment year in question it should be accordingly treated. 9. In these factual circumstances the recourse to tax by treating the commodity in question as falling within the residuary entry has to be resorted to is also his contention. In support of his submissions, he has relied upon the following judgments: (i) Atul Glass industries (Pvt.) Ltd vs Collector of Central Excise And Hindustan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same as unclassified item, the Trade Tax Tribunal and lower authorities were justified to tax tinted/plaint glass panes as declared commodity? (ii) Whether in view of common parlance as well as user of the tinted/coloured glass panes and plain glass panes are identical, in spite of that the tax has been imposed on the coloured / tinted glass panes as declared commodity instead of unclassified item? (iii) Whether plain glass panes does not cover tinted/ coloured glass panes? (iv) Whether once the entry plain glass panes is specifically excluded from the entry All goods and wares made of glass the authorities were not justified in imposing tax on plain glass panes (coloured and tinted glass panes) as goods made of glass wares/ (v) Whether in view of the fact that by mixing inch of colours no new commercial commodity comes into existence as tinted/coloured glass panes is a plain glass panes, still the tax can be imposed as declared commodity instead of unclassified item? (vi) Whether in any view of the matter, the order passed by the Trade Tax Tribunal is justified? 12. The High Court has noted that authorities had taken note of the fact that dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication made under this section shall, as soon as may be after it is made, be laid before each House of the State Legislature, while it is in session, for a total period of not less than fourteen days, extending in its one session or more than one successive sessions; and shall, unless some later date is appointed, take effect from the date of its publication in the Gazette subject to such modifications or annulments as the two Houses of the Legislature may during the said period agree to make, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done thereunder except that any imposition, assessment, levy or collection of tax or penalty shall be subject to the said modification or annulment. (3) Where the State Government has declared any point or rate at which the tax payable by a dealer under the Act be levied under clause (b), clause (c), clause (c-1), clause (d) or clause (e) of sub-section (1) as existed immediately before the commencement of the Uttar Pradesh Trade Tax (Second Amendment) Act, 2000 and such declaration in force on such commencement, such rate or point of tax shall continue to be in force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.4.56 to 19.5.76 (iii) All the goods and wares made of glass but not including plain glass, panes, optical lenses, Hurricane lantern, chimneys, bottles and phials glass beads, clinical syringes, thermometer made of glass. (iv) All the goods and wares made of glass but not including plain glass, panes, opticals lenses, Hurricane lantern, chimneys, bottles and phials glass beads, clinical syringes, thermometer and scientific apparatus and instruments made of glass. 7.9.91 till date There is no dispute to the fact that earlier the entry was glassware alone and the said entry was subsequently amended by adding word all goods within its scope and ambit and this widening of the expression would indicate the intention of the legislature to include all goods and wares of glass unless excluded, in other words the intention of the legislature is explicitly clear to include in its ambit any goods and wares made of glass. The meaning of the word of also acquires the significance. The intention of the legislature of using this expression of would reveal the purpose a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istic work as distinct from its content . Similarly, Macmillan Dictionary defines type as a group of people or things with similar qualities or features that make them different from other groups and form as the particular way in which something appears or exists or a shape of someone or something . Therefore, types are based on the broad nature of the item intended to be classified and in terms of forms , the distinguishable feature is the particular way in which the items exist. An example could be the item wax . The types of wax would include animal, vegetable, petroleum, mineral or synthetic wax whereas the form of wax could be candles, lubricant wax, sealing wax, etc. 20. In the instant case, assessee has placed reliance on the full bench Judgment of the High Court of Madhya Pradesh in the matter of Commissioner of Sales Tax, Madhya Pradesh Vs. Triveni Sheet Glass Limited and others, (1990) 76 STC 308 (Full Bench)=1989 SCC online MP 346 whereunder the issue relating to entry of glass sheets had come up for consideration namely whether glass sheets falls within the ambit of the expression goods made of glass and glassware . This judgment which was relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 986 SCC (Tax) 155] this Court expressed the view that ammonia paper and ferro paper, used for obtaining prints and sketches of site plans could not be described as paper as that word was used in common parlance. On the same basis the Orissa High Court held in State of Orissa v. Gestetner Duplicators (P) Ltd. [(1974) 33 STC 333 (Ori)] that stencil paper could not be classified as paper for the purposes of the Orissa Sales Tax Act. It is a matter of common experience that the identity of an article is associated with its primary function. It is only logical that it should be so. When a consumer buys an article, he buys it because it performs a specific function for him. There is a mental association in the mind of the consumer between the article and the need it supplies in his life. It is the functional character of the article which identifies it in his mind. In the case of a glass mirror, the consumer recalls primarily the reflective function of the article more than anything else. It is a mirror, an article which reflects images. It is referred to as a glass mirror only because the word glass is descriptive of the mirror in that glass has been used as a medium for manufacturing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduced to a mere medium and if any part of the coating is scratched and removed that particular area of the glass mirror will cease to be a glass mirror. It was further held that said commodity is referred to as a glass mirror only because the word glass which is descriptive of the mirror and basis or fundamental character of the article lies in its being a mirror cannot be regarded as glass. Thus, the legislative intent is clear as regards the product, namely, the primary product is not coupled with goods and articles made of that primary product. Thus, it would emerge from the test commonly applied to determine whether an article after subjecting it to manufacturing process becomes a different article or remains same and as held in the aforesaid Judgment it will have to be examined as to how the product is identified by the class or section of people dealing with or using the product. This test acquires significance particularly when the statue does not contain any definition and by its functional character a product is so identified. 22. In fact, the High Court has noticed this fact and has recorded the following finding: The said issue can be resolved from the point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnificantly higher than adjacent areas and with relatively minor difference in elevation, commonly less than 500 feet, within the area. 18. the Plain, Fr. Hist. (in the National Assembly) the loosely organised party of moderate republicans: so called because its members occupied the lowest seats or benches. Cf. mountain (def. 4). 19. The plains. See Great Plains. [ME OF L plan (us) flat, level, plan (um) flat country)- plan ly, adv. - plain ness, n. In the Compact Oxford Reference Dictionary audited by Catherine Soanes the word Plain means 1. simple or ordinary 2. without a pattern 3. unmarked 4. easy to see or understand.......... In the Dictionary by Webster the word plain means as follows: (plein) 1. adj. easy to see or understand simple, not embellished or complicated absolute, complete, plain madness (of food) unelaborated, not having unusual or spicy ingredients bluntly frank unsophisticated lacking physical beauty, but not ugly 2.n. a large expanse of level, open country 3. adv. Manifestly, it's just plain wrong clearly, candidly, she told him plain [KO F. fr.L] PANE: Webster's Dictionary defines Pane as- Pane - a single shee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that an item/product falls under the residuary category, necessarily the burden is on the assessee to prove the said fact and in the instant case, the business premises of the appellant was inspected by Special Investigation Branch of the Department and it was revealed that tinted glass sheet was being manufactured through a different process. The process so adopted has been succinctly explained in the Assessment Order to the following effect: An intensive inquiry XXX Rs. 9,47,28, 446.00. In the inquiry held by Allahabad Unit, this fact has come to the light that the tinted coloured glass is manufactured by the trader in a separate unit and the raw material used in its manufacture is also different from the raw material used in the manufacture of sheet glass. That is the raw materials used in the manufacture of tinted coloured glass are cobalt oxide, carbon oxide, iron oxide etc. besides those used in the manufacture of sheet glass. A specific process is adopted for its manufacturing. The transparency density of tinted coloured glass is different from the simple glass surface. The solar radiation absorption capacity of tinted coloured glass is more than that of the simple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plea of the assessee by opining that in taxing statues, words and phrases must be construed as understood in popular or commercial parlance and not technically. It came to be further held: 5. Having regard to the aforesaid well settled test the question is whether clinical syringes could be regarded as glassware falling within Entry 39 of the First Schedule to the Act? It is true that the dictionary meaning of the expression glassware is articles made of glass (see Webster's New World Dictionary). However, in commercial sense glass ware would never comprise articles like clinical syringes, thermometers, lactometers, and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in glassware does not ordinarily deal in articles like clinical syringes, thermometers, lactometers, etc. which articles though made of glass, are normally available in medical stores or with the manufacturers thereof like the assessee. It is equally unlikely that consumer would ask for such articles from a glass ware shop. In popular sense when one talks of glass ware such specialised articles like clinical syringes, thermometer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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