TaxTMI 
TaxTMI 
2010 (2) TMI 1076
X X X X Extracts X X X X
X X X X Extracts X X X X
....as under: "Question of law In the facts and circumstances of the case, whether the Tribunal is justified in holding that metallic gas cylinders are not exigible to levy of entry tax as packing materials falling under notification dated September 23, 1998?" The brief facts are as follows: The respondent is a registered dealer under the provisions of the Karnataka Tax on Entry of Goods into Local Areas for Consumption, Use or Sale Therein Act, 1979 (hereinafter referred to as, "the KTEG Act" for brevity). The respondent, is engaged in the business of filling liquefied petroleum gas (LPG) in metallic gas cylinder and supplying the same to its customers. The assessing authority for the assessment years 1994-95, 1995-96, 1996-97 and 1997-98 had levied entry tax on the value of metallic gas cylinders on entry into local area by his respective assessment orders. The assessee being aggrieved by the said assessment orders preferred appeals before the first appellate authority, who remanded the matter to the assessing authority for fresh adjudication. The assessee filed further appeals before the Karnataka Appellate Tribunal and by order dated July 30, 2003, the Tribunal dismi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ders are packing materials for filling the gas into cylinders and as such entry of cylinders into local area attracts tax at two per cent and submits that the State is fully justified in levying the same. She would contend that the words used are steel drums in the entry and submitted that metallic gas cylinders are also containers made of steel. She would submit that looking at the language employed in entry 66 it is abundantly clear that LPG cylinders which are manufactured out of steel plates, are very much covered under the said entry. Hence, she contends that LPG cylinders are taxable at the rate of two per cent. Drawing our attention to the words used "and the like", she would contend, packing materials on different metals and materials will have to go separately with the description of each item. She would contend, cylinders are basically containers which are in the nature of specifically designed drums to fill gas and falling under entry 3(ii) of the notification dated September 23, 1998 and metallic gas cylinders are packing materials which are exigible to levy of entry tax. Hence, she contends that, without, appreciating these facts, the Tribunal has proceeded to hold ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....7 STC 298; AIR 1981 SC 2101 and the decision in Siddeshwari Cotton Mills (P.) Ltd. v. Union of India [1989] 75 STC 75; AIR 1989 SC 1019, to contend that principle of ejusdem generis has to be applied and when so applied the metallic gas cylinder would go outside the scope of the KTEG Act and thus not exigible to tax. He would contend that metallic gas cylinder entry cannot be traced to genus found in entry 66 of the First Schedule read with entry 3(ii) of notification dated March 28, 1998 since it is a separate class and the attempt of the Revenue to bring it within the category of steel drums or under the category "and the like" is erroneous. He would contend that in the instant case the words "packing material" are the genus and the species are tin sheets, aluminium foils, aluminium tubes, collapsible tubes aluminium or steel drums, barrels and crates and the like. The commodity, metallic gas cylinder, would not come in any of these species and hence by applying the principle of ejusdem generis the metallic gas cylinder is to be held not exigible to levy under the KTEG Act. Having heard the learned counsel for the parties the question of law formulated hereinabove is required ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Description of goods (1) (2) 1 to 65 . . . 66 Packing materials, namely: - (i) . . . and the like; (ii) Tin plate containers (cans, tins and boxes), tin sheets, aluminium foil, aluminium tubes, collapsible tubes, aluminium or steel drums, barrels and crates and the like; The percentage of levy, namely, rate of tax came to be specified by the State by issue of notification. In so far as entry 66 pertaining to packing materials Notification No. FD 214 CET 97 Bangalore dated January 7, 1998, published in Karnataka Gazette, Extraordinary, dated January 7, 1998 came to be issued and the same reads as under: Notification No. FD 214 CET 97, Bangalore, dated January 7, 1998, Karnataka Gazette, Extraordinary, dated January 7, 1998 In exercise of the powers conferred by sub-section (1) of section 3 of the Karnataka Tax on Entry of Goods Act, 1979 (Karnataka Act 27 of 1979), the Government of Karnataka, hereby specify that with immediate effect tax shall be levied and collected under the said Act on the entry of goods specified in column (2) of the Table below into a local area for consumption, use or sale therein, at the rates specified in the corresponding en....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re for transportation so that the goods can be used by the user. Thus, packing material of any kind which serves this purpose will continue to be a packing material. In the instant case it is the metallic gas cylinders which are used for packing the liquefied petroleum gas into it. The words "packing materials" are wide enough to include any kind of material used for packing of the goods. Thus, the metallic gas cylinders would be in the nature of packing material which serves the purpose of packing and storage of LPG. The two judgments relied upon by the learned counsel for the respondentassessee and the principles enunciated thereunder are as follows: In the case of Siddeshwari Cotton Mills (P.) Ltd. v. Union of India [1989] 75 STC 75 (SC); AIR 1989 SC 1019 (at page 79 of 75 STC): "7. The expression ejusdem generis-'of the same kind or nature'-signifies a principle of construction whereby words in a statute which are otherwise wide but are associated in the text with more limited words are, by implication, given a restricted operation and are limited to matters of the same class or genus as preceding them. If a list or string or family of genus-describing terms are f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n see the only test seems to be whether the specified things which precede the general words can be placed under some common category. By this I understand that the specified things must possess some common and dominant feature.' In Tribhuban Parkash Nayyar v. Union of India [1970] 2 SCR 732 the court said: '. . . This rule reflects an attempt to reconcile incompatibility between the specific and general words, in view of the other rules of interpretation, that all words in a statute are given effect if possible, that a statute is to be construed as a whole and that no words in a statute are presumed to be superfluous. . .' (page 740) In U.P. State Electricity Board v. Hari Shanker Jain AIR 1979 SC 65 it was observed: '. . . The true scope of the rule of "ejusdem generis" is that words of a general nature following specific and particular words should be construed as limited to things which are of the same nature as those specified. But the rule is one which has to be "applied with caution and not pushed too far". . .' (page 73) 8.. The preceding words in the statutory provision which, under this particular rule of construction, control and limit the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d meaning a sense analogous to that of the less general words clubbed with it. State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610, Letang v. Cooper [1965] 1 QB 232 and Corporation of the City of Nagpur v. Its Employees AIR 1960 SC 675, disting." In this background when the words metallic gas cylinder are examined it is to be seen as to whether it would form either the genus or is referable to the species as enumerated in entry 66 of the First Schedule read with entry 3(ii) of notification dated September 23, 1998. The words enumerated in entry 3(ii) reads as under: "Tin plate containers (cans, tins and boxes), tin sheets, aluminium foil, aluminium tubes, collapsible tubes, aluminium or steel drums, barrels and crates and the like." The words "steel drums" "and the like" found in this entry would be of relevance for the purpose of considering the rival contentions of the parties. It would be appropriate to extract the reply given to the showcause notice by the respondent-assessee at this juncture. The same reads as under: (1) The LPG metallic cylinders are manufactured out of steel plate, but not drum or barrels. Therefore they cannot be covered under the entry st....
X X X X Extracts X X X X
X X X X Extracts X X X X
....#39;and the like'. Similarly, in all other clauses as well, the words 'and the like' have been added at the end of entries. The words 'and the like' will have to go with the description of the items in the clause and would not include an item which is not conceived in the entry. In clause (v), the intention is to subject to tax the packing materials made out of jute only and not out of any other material like cloth, polythene, etc. Jute is the basic fibre and the packing materials made out of jute only are subjected to tax. The expression 'and the like' would require to be considered 'ejusdem generis'. The genesis or the class of items envisaged by the preceding words not being exhaustive of the genesis or the class, the Legislature has conceived the words 'and the like' so as to bring in any other item of the same class or genesis. In entry 16A, broadly speaking, the packing materials of different metals and materials have been mentioned and the reference to the words 'and the like' will have to go separately with the description in each item and would not go beyond that to any other item not conceived in such each sub-item. The ....