TaxTMI 
TaxTMI 
2001 (1) TMI 289
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....ption, Use or Sale Therein Act, 1979. The respondent filed separate petitions in respect of assessment orders for the years ending December 1982, 1983, 1984 and 1985. At the hearing before the learned single Judge, various contentions raised in the petitions were given up and the only controversy required to be determined was levy of tax on furnace oil under entry 11 of the Schedule to the Act. The learned single Judge held that the furnace oil is not liable to levy of tax under entry 11. The learned single Judge also quashed the penalties imposed by the assessing authorities by holding that entry 16-B, the Constitutional validity of which was under challenge, though not pressed at the hearing, undergone alterations on three occasions. The decision of the learned single Judge is under challenge in this group of appeals at the behest of the Assistant Commissioner of Commercial Taxes and the State of Karnataka. As the issue involved in all the appeals is common, the appeals are disposed of by this judgment. 2.. The Government of Karnataka enacted the Karnataka Tax on Entry of Goods into Local Areas for Consumption, Use or Sale Therein Act, 1979 ("the Act"), to provide for the levy....
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....e furnace oil is liable to payment of duty under entry 11 of the Schedule. The learned single Judge, by referring to the expression "that is to say", proceeded to hold that the list of the products set out in the entry is exhaustive and as the furnace oil is not included in the entry, it was not open for the assessing authority to demand tax in respect of import of furnace oil. The learned single Judge further held that the levy of penalty on furnace oil cannot be sustained as the company was not liable to pay any tax. The decision of the learned single Judge is under challenge. 4.. It was contended on behalf of the appellants that the learned single Judge failed to properly appreciate the contents of entry 11 and erroneously came to the conclusion that the list of scheduled goods set out in the entry is exhaustive in nature and not illustrative. It was contended that the expression "petroleum products" is generic in nature and furnace oil falls within the expression. The appellants further submitted that the reliance placed by the learned single Judge on the two decisions of the Supreme Court is not accurate because the entries in those cases were different and distinct. The le....
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....PG, kerosene and naphtha, which are also petroleum products, are excluded from levy of duty, if used in the manufacture of fertilisers. It is interesting to note that LPG, kerosene and naphtha though petroleum products, are not set out while illustrating the petroleum products which are liable to duty, but the Legislature, while excluding LPG, kerosene and naphtha from levy of duty, prescribed that the exclusion is only in cases where these products are used in the manufacture of fertilisers. In other words, LPG, kerosene and naphtha being petroleum products, if not used in the manufacture of fertilisers, are liable to payment of duty even though not specifically set out in the entry. The two products have been excluded if they are used in the manufacture of fertilisers and this, in our judgment, is the conclusive proof that the Legislature never intended that the petrol, diesel, crude oil, etc., exhaust the list of petroleum products in respect of which duties are payable. It is now well-settled by catena of decisions that the entry must be read as a whole and it is not permissible to pick up some words to ascertain the intention of the Legislature. We are conscious that being a t....
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.... exhaustive. The Supreme Court then referred to the Stroud's Judicial Dictionary and observed that ordinarily the expression "that is to say" is employed to make clear and fix the meaning of what is to be explained or defined. Such words are not used, as a rule, to amplify a meaning while removing a possible doubt for which purpose the word "includes" is generally employed. It was then observed that in unusual cases, depending upon the context of the words "that is to say", this expression may be followed by illustrative instances. The precise meaning of the words "that is to say" must vary with the context. It is, therefore, obvious that the Supreme Court clearly laid down that the expression "that is to say" need not, in every case, conclude that the definition is exhaustive and even though the expression "that is to say" is used, whether the definition is illustrative, has to be determined with reference to the context in which the words are used and by examining the intention of the rule-maker. By considering the context in which the expression "that is to say" is used in entry 11, it must be concluded that the list of scheduled goods set out in the entry is merely illustrative....
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....trative. In our judgment, the decision of the Andhra Pradesh High Court is not applicable while considering the ambit of entry 11 of the Second Schedule to the Act as the words employed are entirely different and distinct. It is, therefore, not possible to share the view taken by the learned single Judge by the impugned judgment that the import of furnace oil will not attract levy under entry 11 of the Second Schedule to the Act. In our judgment, the import is clearly liable to payment of duty and the order of the assessing authority on that count was not required to be disturbed. 7.. The appellants also contended that the learned single Judge was in error in setting aside the order of the assessing authority levying penalty. We find considerable merit in the contention. The mere fact that entry 16-B underwent changes on three occasions, is not a sufficient ground for setting aside the penalty. The assessing authority had levied penalty as contemplated by section 5 of the Act. The respondent-company challenged the vires of the entry and when gave up the challenge at the hearing of the petitions, it was not permissible to disturb the order of penalty levied by the assessing autho....
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.... It is common ground that prior to amendment of the Act in 1992, there was one Schedule which specified the various items on which entry tax could be levied. Entry No. 11 of the said Schedule was as follows : "All petroleum products, that is to say, petrol, diesel, crude oil, lubricating oil, transformer oil, brake clutch fluid, bitumen (asphalt) tar and others but excluding LP kerosene and naphtha for use in the manufacture of fertilizers." 4. When tax was sought to be levied on M/s. Indian Aluminium Company Ltd. on entry of furnace oil, a writ petition was filed in the Karnataka High Court in which it was, inter alia, contended that the aforesaid entry did not permit levy of tax on furnace oil which was brought into Karnataka by the said assessee. The State of Karnataka took the stand before the Single Judge that furnace oil was lubricating oil and, therefore, covered by Entry No. 11. 5. By order dated 28th January, 1992, the learned Single Judge came to the conclusion that furnace oil was not lubricating oil and, therefore, no tax could be levied on the said furnace oil which was brought into Karnataka. 6. An appeal was filed against the aforesaid deci....
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....mit that neither of these entries mentioned furnace oil. It is contended by them that the words "and others" occurring in the said entries only qualify the word "tar" which precedes the said words and, therefore, furnace oil could not be brought under the category of "and other". Reliance is also placed on the notification dated 30th March, 1994 whereby in the Table providing for the rates of tax a specified entry of furnace oil was inserted. It was contended that in the case of ambiguity it is possible for the Court to look at the subsequent legislation in order to find out the legislative intent. 10. There can be no doubt that these entries, namely, original Entry No. 11 and the new Entry No. 67 were exhaustive. Learned counsel for the appellants are, therefore, right in contending as such. We, however, do not find any ambiguity in interpreting the said entries and, therefore, for this purpose it is not necessary for the Court to be influenced by the notification of 30th March, 1994, the issuance of which can be easily explained. 11. Both these entries (Nos. 11 and 67) mention "petroleum products" : Whereas in Entry No. 11 the first words are "All petroleum produc....