TaxTMI 
TaxTMI 
2014 (8) TMI 444
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.... per cent, which reads as "films of all kinds including X-ray films". In W.P. (C) No. 839 of 2010, the petitioner therein had sought for a clarification from the Commissioner of Taxes as to whether the items, polyester film, metallised pet, metallised BOPP, aluminium foil film and poly film which the petitioner firm had been importing to Assam would be taxable under the Assam Entry Tax Act, 2008 under entry 28. The Commissioner of Taxes by the impugned clarificatory order dated December 19, 2009 held that the aforesaid items are liable to be taxed at four per cent as they are covered by entry No. 28. The petitioner in the said W.P. (C) No. 839 of 2010 has challenged the said clarificatory order dated December 19, 2009. Based on the aforesaid clarificatory order dated December 19, 2009, the Superintendent of Taxes conducted search and seizure in the business premises of various firms and served them with the show-causes as to why in addition to the realisation of taxes, penal proceeding should not be initiated against the petitioners for non-payment of the entry tax under the aforesaid Act of 2008 which are being challenged separately in this batch of writ petitions, W.P. (C) No. ....
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.... and agricultural uses. The aforesaid articles, for their various uses, are sometimes printed and in order to increase the strength, are toughened by multi-layering and the aforesaid items cannot be considered as films in any sense of the term. It has also been stated that except aluminium foil, the aforesaid products are cleared under the excise laws as different items and are not included under "films". According to the petitioners X-ray films are taxable under the Excise laws under Chapter 370110 and Metallised PET (BOPET) are taxable under Tariff heading 39206220, PE (Poly)-Plain under 39201012, Metallised BOPP under 39202020, Aluminium foil under 76071991 and BOMPET under 39219093. The petitioners contend that even if these materials are treated as "films", the use of the word "including" in entry 28 makes it clear that it is to take within its sweep only such items which are included within the defined term and therefore the films of all kinds must include items which are X-ray films and/or of the nature and kind of X-ray films and the aforesaid materials are not even remotely connected with X-ray films. On the other hand, the contention of the respondents is that the entry....
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....ay films" to mean only those films which are in the nature of X-ray film and does not contemplate any other or all kinds of films. As we proceed to examine the rival contentions of the parties, as to whether the meaning of the word "films of all kinds" has been expanded or restricted by the use of word "including", we may note the meaning of "film" first. In the Assam Entry Tax Act, 2008, the word "film" has not been defined. Therefore, we may try to understand the meaning of the word "film" by referring to the dictionary meaning as understood in the common parlance as held by the Supreme Court in S. Samuel, M.D., Harrisons Malayalam v. Union of India [2004] 134 STC 610 (SC); [2004] 1 SCC 256, that when a word is not defined in the Act itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. As per Oxford Dictionary, the meaning of "film" is "Film:-1. Thin coating or covering layer, 2. Strip or sheet of plastic, etc., coated with light sensitive emulsion for exposure in a camera, 3a. A story, episode, etc. on film with the illusion of movement. 3b. The cinema industry 4. Slight veil or haze etc. 5....
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....esaid entry No. 28. In N.D.P. Namboodripad v. Union of India [2007] 4 SCC 502, the Supreme Court held that: "18. The word 'includes' has different meanings in different contexts. Standard dictionaries assign more than one meaning to the word 'include'. Webster's Dictionary defines the word 'include' as synonymous with 'comprise' or 'contain'. Illustrated Oxford Dictionary defines the word 'include' as: (i) comprise or reckon in as a part of a whole; (ii) treat or regard as so included. Collins Dictionary of English Language defines the word 'includes' as: (i) to have as contents or part of the contents; be made up of or contain; (ii) to add as part of something else; put in as part of a set, group or a category; (iii) to contain as a secondary or minor ingredient or element. It is no doubt true that generally when the word 'include' is used in a definition clause, it is used as a word of enlargement, that is to make the definition extensive and not restrictive. But the word 'includes' is also used to connote a specific meaning, that is, as 'means and includes' or 'comprises' or 'consis....
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....e Legislature is used: '32. . . . (1) to enlarge the meaning of words or phrases so as to take in the ordinary, popular and natural sense of the words and also the sense which the statute wishes to attribute to it; (2) to include meanings about which there might be some dispute; or (3) to bring under one nomenclature all transactions possessing certain similar features but going under different names.' 17. It goes without saying that interpretation of a word or expression must depend on the text and the context. The resort to the word 'includes' by the Legislature often shows the intention of the Legislature that it wanted to give extensive and enlarged meaning to such expression. Sometimes, however, the context may suggest that word 'includes' may have been designed to mean 'means'. The setting, context and object of an enactment may provide sufficient guidance for interpretation of the word 'includes' for the purposes of such enactment." We may also refer to the decision of the Supreme Court in South Gujarat Roofing Tiles Manufacturers Association v. State of Gujarat [1976] 4 SCC 601 wherein the Supreme Court held that: "3. . . . It is ....
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....the entry not by way of abundant caution. 5. The contention of Mr. Tarkunde for the appellants is that the articles mentioned in the Explanation were intended to be exhaustive of the objects covered by entry 22. According to Mr. Tarkunde if the Legislature wanted to bring within the entry all possible articles of pottery then there was hardly any point in mentioning only a few of them by way of Explanation. To this Mr. Patel's reply is that it is wellknown that where the Legislature wants to exhaust the significance of the term defined, it uses the word 'means' or the expression 'means and includes', and that if the intention was to make the list exhaustive, the Legislature would not have used the word 'includes' only. We do not think there could be any inflexible rule that the word 'include' should be read always as a word of extension without reference to the context. . ." From the above decisions of the Supreme Court, we may infer the following as regards the use of the word "includes" or "including" in any statute. (i) The word "includes" or "including" is normally used in any statute to enlarge the scope of the definition or expression to....
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....r words in the entry, (except "X-ray films") redundant. Therefore, it cannot be understood to mean only "X-ray films". As held in Peerless General Finance and Investment Co. Ltd. [1987] 61 Comp Cas 663 (SC); [1987] 1 SCC 424, it can be used to include meanings about which there might be some dispute or to bring under one nomenclature all transactions possessing certain similar features but going under different names. The word "including" could indicate the restrictive meaning of the expression "films of all kinds" to confine to such materials which possess certain similar characteristics to the included material "X-ray films". The ambiguity of the all sweeping words "films of all kinds" could be clarified by the subsequent words. We have already observed that "film" can mean different things depending on the nature of the material. In the light of the judgments referred to above, what we can legitimately infer is that by using the word "including" in entry 28, the Legislature did not wish to include an article which would normally be covered by the general terms "films of all kinds" but to give an exhaustive meaning to the words "films of all kinds" by clarifying and indicating t....