TaxTMI 
TaxTMI 
2004 (12) TMI 363
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....le to the appellant, and section 13(1)(e) of the Act inserted by the Bihar Finance (Amendment) Act, 1985 (in short, "the Amendment Act") w.e.f. August 1, 1985 did not render it inapplicable. 2.. The background facts necessary for disposal of the appeal essentially are as follows: Appellant is a company registered under the Companies Act, 1956 (in short "the Companies Act") and is a dealer registered under the Act and the Central Sales Tax Act, 1956 (in short "the Central Act"). 3.. It is a manufacturer of biscuits and started its manufacturing operation in the State of Bihar w.e.f. April 1, 2002. According to it, Parle Products Limited was its predecessor who was given benefit of concessional rate of sales tax of four per cent on purchase of C.B. boxes (also known as cardboard box or corrugated box) used for packing. The benefit of the concessional rate was given under section 13(1) of the Act. However, it has been denied the benefit and has been asked to pay sales tax at 10 per cent on purchase of C.B. boxes used for packing. The appellant had also applied to the Deputy Commissioner, Commercial Tax, Patna City, Patna, praying for inclusion of packing materials made out of....
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....the authorities were not correct in their view. Stand of the learned counsel for the respondents was that section 13 of the Act provides for concessional rate of tax. Proviso to section 13(1) indicates that the State Government may exclude any goods or class or description of goods from the operation of the section. Accordingly, notification dated January 28, 1985 amending earlier notification dated December 26, 1977 was issued. By the said notification paper and other materials made out of paper were excluded from the operation of section 13 of the Act. While other packing materials continued to enjoy the benefit of concessional rates as provided under section 13(1)(e) of the Act, the same is not the case with those articles which are covered by the notification. Even if clause (e) in sub-section (1) of section 13 is inserted subsequently, i.e., on August 1, 1985, it will not supersede or affect the earlier notification. Reference was made to section 21 of the Act which deals with taxable turnover and though sale of packing material for packing of goods used by the dealer prior to August 1, 1985 was exempted from payment of sales tax, the position was altered after August 1,....
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....idence was led to show that in common parlance "card board" and "card board boxes" are different commodities. No evidence relating to common parlance or understanding was filed before any authority. Words of the notification have to be understood taking into account the object for which the same was issued. The reasons for inclusion have been spelt out in the counter-affidavit. Concessional rate of tax was never intended to be extended to paper and its products. Since policy is to protect trees, plants and forests, there was no intention to extend the benefits as claimed. Object is to encourage use of substitutes of paper as packing materials. Reliance on Card Board Products case [1989] 73 STC 438 (Patna) does not further the petitioner's case because the points were not considered in the earlier case. Even if for the sake of argument it is accepted that "card board" and "card board boxes" are different commodities, "card board box" is clearly covered by the entry "carton". The decision in Card Board Products case [1989] 73 STC 438 (Patna) was concerned with the card board boxes used for storage of explosives. With reference to Explosive Rules 1940, Explosive Rules, 1983 and variou....
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....-(1) For the purpose of this Part the taxable turnover of a dealer shall be that part of his gross turn- over which remains after deduction therefrom- (a) sale price on account of sales exempted under section 7; (b) amount of sales tax actually collected as such, if any, along with the sale prices received or receivable in respect of sales of goods; (c) sale prices on account of sales to a registered dealer other than a dealer liable to pay tax under sub-section (4) of section 11 and specified in his registration certificate as being required for resale by him inside Bihar or in course of inter-State trade or commerce or for use in the packing of goods which he sells inside Bihar or in course of inter-State trade or commerce: Provided that in the case of such sales a declaration in the prescribed form duly filled up and signed by the registered dealer to whom the goods are sold, or by his manager declared under section 15 is furnished in the prescribed manner by the selling dealer; (d) sale prices at the subsequent stages of sales of such goods as are specified by a notification issued under sub-section (1) of section 11 as being subject to tax at the first point of ....
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....linen rags, esparto, wood-pulp, or other form of cellulose, used for writing and printing, wrapping and other purposes: sometimes extended to similar materials not so made, as papyrus, rice-paper, to the substance of which some wasps built their nests, to card board and even to tin-foil ("silver paper"): a piece of paper. Oxford Dictionary-Substance used for writing, printing, drawing, wrapping up parcels and etc., made of interlaced fibres of rags, straw, wood, and etc. Webster's Dictionary-Paper, (ME Papire an Egyptian reed from the inner bark of which a kind of writing paper was made in ancient Egypt). A thin flexible material made in leaves or sheets from the pulp of rags, straw, wood or other fibrous material and used for writing or printing upon or for wrapping and various other purposes. A single piece, sheet or leaf of such material, smaller wrapper or card of paper usually including its contents; as a paper of pins; any material like paper, as papyrus. In Encyclopaedia Britannica [Volume 13 (15th Edition)], "paper" has been defined as basic material used for written communication and the dissemination of information. Paper, the general name for the substanc....
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....dge (Cypreus papyrus), a marsh plant. 14.. In common parlance, the meaning is not different. 15.. That brings us to the residual question as to whether "card-board box" is covered by the entry "card board". We find that this question was elaborately dealt with in Cardboard products case [1989] 73 STC 438 (Patna). While considering almost identical provision it was found as a fact that "card board box" is not the same as "card board". It is fairly accepted by learned counsel for the State that the decision was not challenged. We find that reasoning indicated in Card Board Products case [1989] 73 STC 438 (Patna) to hold that "card board" is not synonymous with "card board box", suffers from no infirmity. An article of merchandise whenever used in a taxation statute must always be understood in common parlance and must be given its popular sense, meaning that sense with which people are conversant and while dealing with the articles would attribute to it. The word "card board box" is not the term of an art. It is a commercial article to be understood in the sense that people dealing with such an article can understand it and would attribute to it in the common parlance. 16.. ....
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.... chosen to enact, either in express words or by reasonable and necessary implication." 19.. It is an application of this principle that a statutory notification may not be extended so as to meet a casus omissus. As appears in the judgment of the Privy Council in Crawford v. Spooner 6 Moore PC 1 (8): ".......we cannot aid the Legislature's defective phrasing of an Act, we cannot add or mend and, by construction make up defi-iencies which are left there." 20.. The above position was illuminatingly highlighted by a Constitution Bench of this Court in Hansraj Gordhandas v. H.H. Dave, Assistant Collector of Central Excise and Customs [1969] 2 SCR 253. 21.. Though it has been strenuously urged by learned counsel for the appellant that the notification dated January 28, 1985 cannot affect the exemption granted in terms of clause (e) of sub-section (1) of section 13, the plea is clearly untenable. Section 27 of the Bihar and Orissa General Clauses Act, 1917 (in short "the Bihar General Clauses Act") corresponding to section 24 of the General Clauses Act, 1897 (in short "the General Clauses Act") provides for "Continuation of orders", etc., issued under enactments repealed and r....
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....Card Board Products case [1989] 73 STC 438 (Patna) it was factually found with reference to said Rules that the card board boxes to be sold for the purpose of containing explosives were not light pasteboard or card board box but strong card board box. Therefore, a factual determination is necessary. 24.. "Carton" has been defined in various renowned dictionaries as follows: The New Shorter Oxford English Dictionary (Volume I, page 344). Carton A (1)(a): A light card board or pasteboard; a light container of waxed card board, plastic, etc., in which drinks and other foodstuffs are packaged. Card board, pasteboard, papier mache. (2) The disc within the bull's-eye of a target; a shot that hints this. Words and Phrases, Permanent Edition, Volume 6 (page 347) "By 'cartons' ......we understand those encasements which are not usually of permanent value, and such as are ordinarily used for the convenient transportation of their contents." The carton in which gloves and hosiery are placed is a box or cover in which the goods are contained, within the meaning of Act March 3, 1883, $7,22 Stat. 523, repealing the law imposing a duty on the usual box or covering of imported go....