TaxTMI 
TaxTMI 
TaxTMI 
2007 (4) TMI 651
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....ed that the aims and objects of the petitioner-society are to cultivate and keep up a spirit of fellow-feeling and to do all activities for the welfare of all the members of the society. As a matter of fact, all the members of the society are engaged in the manufacturing tea and for the purpose the members are required to purchase GTL from the farmers and/or cultivators who cultivate GTL on their own land. Learned advocate has submitted that these small farmers do not fall within the definition of dealer as defined under the West Bengal Sales Tax Act, 1994 and, as such, they are not registered dealer. It is alleged that the sales tax authorities while making assessment of the members of the society as a manufacturer of tea is levying purchase tax on the purchase of GTL from the farmers and/or cultivators. Such purchase tax is levied on the ground that GTL is purchased from the unregistered dealers for use in the manufacture of tea. The members of the society are holding eligibility certificate for remission of tax. Such purchase tax is being adjusted with total remission of tax allowed to them. Further, it is also alleged that while the farmers and/or cultivators are selling GTL to....
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....ate Representative, has opposed the contention of the learned advocate and relied on the affidavit-in-opposition. It is argued that GTL can, by no stretch of imagination, be treated as plant or vegetable as specified in Schedule I. It is contended that persons engaged in growing GTL and making sales of the same to the tea manufacturers are dealers within the meaning of clause (10) of section 2 of the Act, 1994. It is submitted by the learned State Representative that there are certain tests to find out when a farmer and/or cultivator has crossed the boundary of cultivator and/or farmer and become a dealer. Because of being a farmer and/or cultivator, one cannot be excluded from the ambit of the definition of the dealer. The points to be decided in this case are: I. Whether the GTL is non-taxable item either as per serial No. 40 or serial No. 86 of Schedule I or not. II. Whether purchase tax is payable under section 13(1)(a) of the West Bengal Sales Tax Act on the purchase of GTL from the cultivators and/or farmers. It is well-settled that if a statute does not provide any definition of an item in Acts relating to sales tax, Customs Act or the Central Excises Act, the meaning a....
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....the common parlance or commercial parlance meaning, namely, in the sense in which the buyer and the seller understand the same in the trade. Such an expression or entry is not to be understood generally in a scientific or technical sense, where the scientific or technical sense is in conflict with the common parlance meaning . . . " The Tribunal in the said case further pointed out (page 316): "The expression 'plant' as finds place in entry 47 cannot have been used in comprehensive botanical concept so as to include the entire range of vegetable kingdom from shrubs to giant trees, otherwise it would include timber being part of a tree (if viewed from Mr. Mukherjee's concept that all parts of a plant come under the expression)." In Ashwani Kumar and Company [1999] 114 STC 318 the Tribunal applied the aforesaid principle and held (page 322): "10. Following this principle it can be said that whenever it becomes necessary to determine whether an undefined expression appearing in a statute takes within its fold another expression to which a particular meaning has been attached in the trade to which the latter is associated or by those dealing in them,....
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....iew is required to be reconsidered in an appropriate case. In this case it is not necessary to go into the said question as we fully agree that GTL does not come within the expression "plant" as used in entry No. 40 of Schedule I of the VAT Act. The learned advocate has cited the decision of the honourable Supreme Court of India in the case of Commissioner of Sales Tax, Lucknow v. D.S. Bist [1979] 44 STC 392. This decision was taken in a different context. It was held in that case that the tea leaves after subject to processing like withering in shadow in rooms on a wooden floor, crushing by hand or foot and roasting on mats, covering by the wet sheets for generating fermentation, etc., do not cease to be the agricultural produce and are not exigible to sales tax within the scope of the U.P. Sales Tax Act, 1948. As such, the decision taken by the apex court in the above referred case has no applicability in the present case. Alternatively, the learned advocate has claimed that if the "GTL" does not cover by the word "plant" as mentioned in serial No. 40 of Schedule I, it would be covered by serial No. 86 as vegetable. The word "vegetable" i....