TaxTMI 
TaxTMI 
2015 (4) TMI 250
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.... (iv) covert (eraser). The Assessing Officer (for short, 'AO') was of the view that marker & highlighter does not fall in the category of pen and since it is not a pen, it is not exempt and falls in the definition of stationery on which tax @ 4% is leviable. In so far as carbon paper is concerned, the assessee claimed it to be part of the stationery and the tax leviable is @ 4%, however the AO was of the view that since carbon paper/stamp pad is not separately shown anywhere, therefore, the tax @ 10% is applicable which falls in the residuary/general clause. In so far as the stamp pad & ink of stamp pad is concerned, the assessee claimed it to be stationery with the tax @ 8% which was being charged earlier whereas the revenue claimed it to be falling in the general category with the tax leviable @ 10%. 4. The Deputy Commissioner (Appeals) (for short, 'DC(A)'), after analyzing the evidence on record and having gone through the meaning of stationery in the light of the dictionary meaning and other facts, came to the conclusion that marker as well as highlighter falls within the definition of a pen and accordingly came to the conclusion that the nature of highlighter/....
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....been notified at all and therefore, a general rate is applicable. He contended that the Tax Board has gone wrong in taking the last three items in the category of stationery and therefore, the order of the Tax Board is unjustified. In so far as strict compliance is concerned, he relied upon judgment of Hon'ble Apex Court in the case of Uttam Industries v. CCE AIR 2011 (SC) 1520. He also placed reliance upon judgment rendered by this Court on 15/10/2013 in the case of RayBan Sun Optics India Ltd. v. Dy. Commissioner (Appeals), SB Sales Tax Revision No.78/2012, decided by this Court on 15/10/2013. 8. Per-contra, Mr. Devendra Kumar, ld. counsel for the respondent-assessee, contended that prior to the notification dt. 07/03/1994, a notification had been issued and the earlier notification only stated "pens" whereas vide notification dt. 07/03/1994, the definition of pen was enlarged to mean "all types of pens including parts and accessories thereof, drawing material and poster colours" and and therefore, he contended that marker & highlighters are being used for writing purposes as well and it cannot be said that they cannot be used for the purpose of pen. When a thing is highligh....
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....erved as under:- "In view of the above definition of the words "write" and "writing" it reveals that the method by which the ideas are transformed into symbols, characters, letters or words on any surface including paper is to be considered as writing. Accordingly, Fountain pens, Marker Pens, Croquill Lettering Pens, Sketch Pens etc. are the instruments which are being used for transforming the ideas into symbols, characters, letters or words on paper and in that sense these are definitely the instruments of writing. Even if we see the uses of these instruments, we noticed that they are of multipurpose uses viz., Marker Pens are used for bold writing on notice board, packages, files, envelopes, charts etc. as well the same can be used in drawing also. The same case is with sketch pens, croquill lettering pens also. It can be used for writing purposes also." 12. The word "marker" has been defined in Concise Oxford English Dictionary to mean "a felt tip pen with a broad tip". In the same dictionary, the word "highlighter" has been defined to mean "a broad marker pen used to overlay transparent fluorescent colour on text or a part of an illustration." As per Websters New World Dict....
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.... meaning cannot be termed as stationery article. 16. In order to decide the actual utility as also use of commodity in the market and by its user, one is required to take pragmatic view of the whole scenario in its right perspective. In today's commercial world where technology and science has gone much ahead in every sphere, one cannot see a particular thing in a narrow sense. 17. No one can deny that any office, be that of lawyer or doctor or office executive or students study table is complete without a gum bottle. Indeed, it is a necessity for every one who is associated with writing/study/typing, painting, drawing, etc. It is for this purpose, the gum bottle, is sold by stationery shops--a most common shop for the commodity in question. We have, therefore, no hesitation in holding that Fevicol MR which is essentially used for pasting envelopes, papers and card paper is a stationery article. It has to be accordingly, taxed as a stationery article under entry 21 of Part IV as per the rate specified for that entry from time to time.' 15. This Court in the case of Centuary Ecka (supra) held as under:- "It is well settled that in determining the meaning in connotations ....
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.... view, under the taxing statute, the words, which are not technical expressions or words of art, but words of everyday use, must be understood and given a popular meaning not in their technical or strong sense but in a sense as understand in common parlance and sense, which the people conversant with the subject matter, which the statute is dealing would attribute to it. Such words must be understood in their popular sense and at the place in which these are being told. The items namely; (i) marker & highlighter, (ii) carbon paper, (iii) stamp pad & ink of stamp pad, (iv) covert (eraser) will be available in a stationery shop alone and if one has to purchase such items, one will have to go to a shop of stationery only to get these items rather than from a textile or a grocery shop . Therefore, in my view, all these items can be understood according to the common commercial understanding of these terms and in my view, all these form part of stationery items and cannot be termed as falling within the general category. 20. The Hon'ble Apex Court, time and again, has held that while interpreting the entry for the purposes of taxation, recourse should not be made to the scientific ....