TaxTMI 
TaxTMI 
2023 (10) TMI 493
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....assessment years 1996-97, Civil Appeal No.5914 of 2023 relates to the notice issued for reassessment for the tax assessment years 1992-93 to 1996-97 and whereas Civil Appeal Nos.5965-66 of 2023 relates to the tax assessment years 1998-99 and 2003-04 respectively. 3. The appellant deals with manufacturing and sale of sheet glass, tinted glass, coloured glass, figured glass, void glass, wired glass, float glass and neutral glass. After taking note of the books of accounts tendered during the course of the assessment proceedings the assessing officer opined after enquiry that tinted glass has been manufactured by assessee in a separate unit and the process adopted for its manufacture is different from manufacture of sheet glass. Assessing Officer has further opined in his order that raw materials used in manufacture of tinted coloured glass are cobalt oxide, carbon oxide, iron oxide etc. besides those used in the manufacture of sheet glass. Assessing Officer has further held that the transparency and density of tinted coloured glass is different from the simple glass surface as also solar radiation on the absorption capacity of tinted coloured glass being more than that of the simp....
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.... tax @15% for the tax assessment years 1992-93 to 1996-97 came to be challenged in Writ Petition No. 283 of 2001 before the High Court of judicature at Allahabad which writ petition came to be dismissed in the light of said issue having already been laid to rest in appellant's case itself, in the light of assessment order for the tax assessment year 1996-97 having been passed by rejecting the similar contentions. Hence, in all these appeals the common question of law has arisen and as such they are taken up together for consideration, adjudication and determination thereof. 6. We have heard the arguments of Shri S.K. Bagaria, learned senior counsel appearing on behalf of the appellant and Shri R.K. Raizada, learned senior counsel appearing for the respondent. 7. Shri S.K. Bagaria, learned senior counsel appearing for the appellant-assessee has contended that tinted glass is also sheet glass and as such attracts 10% tax and not 15% as claimed by the revenue. He would contend that the only difference between both the glasses is colour. He would urge that tinted glass and simple glass are same commodities and both do not fall under the category of "goods and wares made of glass"....
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....ation. Vikas Bhawan, New Delhi Vs Baluja Glass Company 1979 SCC Online Del 300: (1980) 46 STC 17 (ix) Commissioner of Sales Tax Vs Mohd. Ayub & Sons 1981 SCC Online All 971: (1982) 50 STC 187 (x) HPL CHEMICALS LTD. Vs Commissioner of Central Excise, Chandigarh (1997) 2 SCC 677 (xi) U.P. Glass Works Ltd. Vs Commissioner, Sales Tax. UP, Lucknow. 1973 SCC Online All 422: (1973) 32 STC 252 : 1973 Tax LR 2589 (xii) Commissioner. Sales Tax, U.P. Lucknow Vs Banaras Bead Manufacturing Co., Varanasi 1968 SCC Online All 380: (1970) 25 STC 100 (xiii) Jalal Plastic Industries And Ors. vs Union of India And Ors. 1981 (8) ELT 653 (xiv) Commissioner Of Sales Tax vs Dawoodbhoy M. Tayabally (1975) 36 STC 291 (xv) Nirlex Spares (P) Ltd. Vs Commissioner of Central Excise (2008) 2 SCC 628 (xvi) State of Uttar Pradesh & Others vs. Aryaverth Chawal Udyog & Others (2015) 17 SCC (xvii) Commissioner of Customs (Import), Mumbai vs. Dilip Kumar & Company & Ors. (2018) 9 SCC 1 10. Per contra, Shri R.K. Raizada, learned senior counsel appearing for the respondent state would support the orders passed by the authorities and the ....
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.... FINDINGS 13. The tug of war between the assesses and the revenue in these appeals revolves around the plea of assessee that tinted glasses manufactured by it falls under clause (c) of sub-section (1) of Section 3A namely residuary clause and as such tax is to be levied @ 10%; whereas revenue is contending that it would fall under Entry No.4 of the notification No.5784 dated 07.09.1981 which Notification has been issued in exercise of the power conferred under clause(d) of Sub-section (1) of Section 3A of the Act. It is in this background, the rival contentions requires to be examined and it would be apt and appropriate to extract Section 3A of U.P. Trade Tax Act, 1948. It reads as under: "Section 3-A: Rates of tax (1) Except as provided in Section 3-D, the tax payable by a dealer under this Act shall be levied:-- (a) on the turnover in respect of "declared goods", at the point of sale to the consumer at the maximum rate for the time being specified in Section 15 of the Central Sales Tax Act, 1956, or where the State Government, by notification, declares any other single point or a lesser rate, at such other point or at such lesser rate; (b) t....
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.... as the State Government may, by notification, declare, and different points and different rates may be declared in respect of different goods; under clause (c) on the turnover in respect of goods, other than those referred to in clause (a) or clause (b), at the point of sale by manufacturer or importer @10 percent. 15. The Notification No. ST-2-5784/X-10(1)-80 dated 7/9/1981 issued in exercise of the power conferred under clause(d) of Sub14 section (1) of Section 3A of the Act specifies that under Entry No. 4 reads as under: "4. All goods and glass wares made of glass but not including plain glass panes optical lenses, hurricane lantern, chimneys bottles and phials, glass beads, clinical syringes, Therma Meters and scientific apparatus and instruments made of glass." Thus, on a plain reading of the above entry it would leave no manner of doubt that all goods and wares made of glass would fall within the definition of the said entry or in other words, all goods and wares made of glass would fall within Entry No.IV of the aforesaid notification and thus attract a duty @15 %. The exclusion of plain glass panes, optical lens as indicated therein would fall within the re....
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....ion used in a taxing statute for describing a commodity must be given the meaning which is generally given to it by a person in the trade or in the market of commodities and should be interpreted in the sense the person conversant with the subject-matter of the statute and dealing with it would attribute to it. (See Ramavatar Budhaiprasad v. Asstt. STO [(1961) 12 STC 286 : AIR 1961 SC 1325] .) The High Court approached the matter from this angle and reached the correct conclusion that the expression "articles made of plastics" used in Tariff Item 15-A(2) does not cover such articles which are not directly made from the material indicated in sub-item (1) but are made from articles made out of such material." 19. Reiterating the position with regard to interpretation of provisions in fiscal statues and adherence to the principle of popular meaning as understood in their common and popular ex-parlance in the matter of State of Jharkhand and others Vs. LA Opala RG Limited- (2014) 15 SCC 136 it came to be held: "22. It is a settled law that in taxing statutes the terms and expressions must be seen in their common and popular parlance and not be attributed their scientific or....
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....e Full Bench expressed its dissent with the decision reported in Commissioner of Sales Tax, Madhya Pradesh, Nagpur v. Mohanlal Ramkisan Nathani (1955) 6 STC 136 and Tribuwandas Golabchand and Brothers, Nagpur V. State of Maharashtra (1965) 16 STC 452 (Bombay) and CST Vs Bombay Glasshouse (1986) 63 STC 350 (M.P.). The Full Bench was of the opinion that in these decisions, it was not taken into account that the glass sheet is common parlance is glass simplicitor" and glass sheet is a primary product used for producing articles of goods made of glass. Glass sheet is a primary product." This distinguishes the case from the facts of the present case." 21. This Court in Atul Glass industries Pvt. Ltd. Vs. Collector of Central Excise, (1986) 63 STC 322 has held the test commonly applied to determine whether an article after subjecting to manufacturing processes becomes a different article or remains the same is: how is the product identified by the class or section of the people dealing with or using such product. It came to be held: "8. The test commonly applied to such cases is: How is the product identified by the class or section of people dealing with or using the product....
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....tion when the statute was enacted." That was also the view expressed in Geep Flashlight Industries Ltd. v. Union of India [(1985) 22 ELT 3] . Where the goods are not marketable that principle of construction is not attracted: Indian Aluminium Cables Ltd. v. Union of India [(1985) 3 SCC 284 : 1985 SCC (Tax) 383] . The question whether thermometers, lactometers, syringes, eyewash glasses and measuring glasses could be described as "glassware" for the purpose of the Orissa Sales Tax Act, 1947 was answered by the Orissa High Court in State of Orissa v Janta Medical Stores [(1976) 37 STC 33 (Ori)] in the negative. To the same effect is the decision of this Court in Indo International Industries v. CST, Uttar Pradesh [(1981) 2 SCC 528 : 1981 SCC (Tax) 130 : AIR 1981 SC 1079 : (1981) 3 SCR 294] where hypodermic clinical syringes were regarded as falling more accurately under the entry relating to "hospital equipment and apparatus" rather than under the entry which related to "glasswares" in the UP Sales Tax Act." In the aforesaid Judgment, the question that arose for consideration was under what tariff item 'glass mirror' would fall, and glass screens fitted in motor vehicles ....
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....enerally." 23. Now, we proceed to note the simple dictionary meaning assigned with regard to "plain glass panes" in order to examine the claim of assessee to extend the meaning assigned to "plain glass sheet" to "tinted glass sheet." PLAIN: Webster's Encyclopaedic Unabridged Dictionary 1989 Edition defines "Plain" as- "Plain (plan) adj. 1. clear to distinct to the eye or ear: a plain trail to the river, to stand in plain view. 2. one's meaning plain, a dislike of the subject that was plain. 3. conveying the meaning clearly and simply: easily understood; plain 4. downright; sheer; utter; plain folly, plain stupidly. 5. free from ambiguity or evasion; candid; outspoken: the plain truth of the matter. 6. without special pretension, superiority elegance, etc.; ordinary: plain people. 7. not beautiful: physically unattractive or undistinguished: a plain face; a childhood fear that she would be plain. 8. without intricates or difficulties. 9. ordinary, simple, or unostentatious: Although she was a duchess, her manners were attractively plain. 10. with little or no embellishment, decoration, or enhancing elaboration: a plain blue suit. 11. without a pattern, fi....
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....ying the said principle to the product on hand, namely tinted glass sheets would continue to be the genus of the species namely "plain glass panes" by relying upon Gujarat Steel Tubes Ltd. V. State of Kerala (1989) 3 SCC 127 and Maqsood Mohammad Vs. State of Uttar Pradesh and Another (1978) 41 STC 324. Both the Judgments are distinguishable on facts, and reasoning adopted under the impugned order is just and proper for reasons more than one; firstly in Gujarat Steel Tubes matter (supra) it was noticed that the steel tube was galvanized and by virtue of the same, it did not cease to be a steel tube inasmuch as its structure or its function is not altered and it remained as a steel tube. Whereas in the instant case the tinted glass sheet during the process of manufacture has undergone a change and as noticed by the authorities it has more radiation absorption capacity and is also different in its transparency and density than a plain glass sheet or in other words the commodity did not remain the same after the manufacturing process. Secondly, in Maqsood Mohammad matter (supra) it was noticed that after the manufacturing process the product "kala namak" remained as an edible salt or i....
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....ose specifically excluded in the entry itself. 27. It would not be out of context or in other words it would be apposite to refer to the judgment of this Court in the matter of Ramavatar Budhaiprasad Etc. Vs. Assistant Sales Tax Officer - (1962) 1 SCR 279 wherein challenge to the imposition of sales tax on beetle leaves by the revenue came to be upheld by arriving at a conclusion that the legislature by using two distinct and different items that is item 6 "vegetables" item 36 "beetle leaves" had indicated its intention. It was held that the word "vegetables" in taxing statues is to be understood as in common parlance that is denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table. It was further held: "3. The Schedule was amended ............... But this word must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance. It has not been defined in the Act and being a word of every day us it must be construed in its popular sense meaning "that sense which people conversant with the subjectmatter with which the statute is dealing would attribute to it". It is to be c....