TMI Blog2001 (7) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... econd amendment, in terms of newly inserted entry No. 83 turnover in respect of the aforesaid items was to be taxed at the first point. The said notification was issued in exercise of powers conferred under section 5 of the Act as amended by the Second Amendment Act. So far as third notification is concerned, the same has been issued in exercise of power conferred under section 71 of the Act and the newly added entry No. 10 was made in the Schedule appended to sub-clause (1A) of clause XXXIV of rule 11 of the Delhi Sales Tax Rules, 1975 (in short, "the Rules"). 2.. According to the petitioner, the levy of tax on transfer of credit lying in Duty Entitlement Pass book (in short, "DEPB") is illegal, as the same is not goods and there was no sale of goods and, in any event, even if it is conceded, for the sake of argument, that the same can be equated with goods they are part of excluded items either as actionable claim or money. In essence, it is submitted that transfer of the credit amount lying in DEPB does not come within the ambit of definition of "goods" and in any event transfer of the same does not amount to sale of goods. Per contra, learned counsel for the respondent su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1963 (in short, "the Kerala Act "). The definition is as follows: "'goods' means all kinds of movable property (other than newspapers, actionable claims, electricity, stocks and shares and securities) and includes livestock, all materials, commodities and articles (including those to be used in the construction, fitting out, improvement or repair of immovable property or used in the fitting out, improvement or repair of movable property) and all growing crops, grass or things attached to, or forming part of the land which are agreed to be severed before sale or under the contract of sale." 4.. The General Clauses Act, 1897 (in short, "the General Clauses Act") defines movable property as property of every kind except immovable property. The expression "immovable property" is defined to include land, benefits to arise out of land, and things attached to earth, or permanently fastened to anything attached to the earth. Definitions in Karnataka, Tamil Nadu and Kerala Acts, so far as goods are concerned, are couched in almost identical words. Central Sales Tax Act, 1956 (in short "Central Act") defines the goods under clause (d) of section 2 in the following terms: "'Goods' inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ip. Davis v. Davis. Tex. Civ. App., 495 S.W. 2d 607, 611. Term includes not only ownership and possession but also the right of use and enjoyment of lawful purposes. Hoffmann v. Kinealy, Mo., 389 S.W. 2d. 745, 752. Property, within constitutional protection, denotes group of rights inhering in citizen's relation to physical thing, as right to possess, use and dispose of it. Cereghino v. State by and through State Highway Commission, 230 Or., 439, 370 P. 2d 694, 697. ........................' The dictionary further says 'property is either: real or immovable; or, personal or movable'. It then proceeds to give the meaning of the expression 'absolute property', 'common property', 'intangible property', 'movable property', 'personal property', 'private property' and 'public property' among others. The above definition shows the wide meaning attached to the expression. It is said to extend to every species of valuable right and interest. It denotes everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal. It includes 'everything that has an extendable value'. It extends to every species of valuable rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , or where we speak of the property in the goods of a deceased person being vested in his executor. The term was chiefly used in this sense with reference to chattels (Finch, Law 176). Property in this sense is divided into general and special or qualified. General property is that which every absolute owner has (Co. Litt. 145b.). See Ownership. Special property has two meanings. First, it may mean that the subject-matter is incapable of being in the absolute ownership of any person. Thus a man may have a property in deer in a park, hares or rabbits in a warren, fish in a pond, etc., but it is only a special or qualified property, for if at any time they regain their natural liberty his property instantly ceases, unless they have animus revertendi (2 B1. Comm. 391). See Animals Ferae Naturae.........' This definition also shows that the expression signifies 'things and rights considered as having a money value'. Even incorporeal rights like trade marks, copyrights, patents and rights in personam capable of transfer or transmission, such as debts, are also included in its ambit. The meaning given to 'general property' and 'special property' are self-explanatory and need no e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot material in the popular sense, e.g., electricity. (4) A thing which is neither material, corporeal, nor tangible but is an element of wealth, e.g., a copyright or a patent... (5) A thing which is not material and which is not directly an economic asset or element of wealth, e.g., a reputation." On these authorities and Paton's clear statement, electricity must be held to be a thing and therefore, a "property". Municipal Committee, Harda v. Harda Electric Supply Co. (Private) Ltd. AIR 1964 MP 101 at 106, 107. In Stroud's Judicial Dictionary (Third Edition), it is defined thus: "property" is the generic term for all that a person has dominion over. Its two leading divisions are (1) real and (2) personal. Property is the most comprehensive of all terms which can be used inasmuch as it is indicative and descriptive of every possible interest which the party can have. There is also a short passage which throws considerable light on this issue in "The Constitutional law of the United States": "What property may be taken by the power of eminent domain. In general it may be said that any and all property may be taken. Land, building, water, an easement as distinguished from ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to neutralize the incidence of basic customs duty on the import content of the export product. The neutralisation shall be provided by way of grant of duty credit against the export product. The duty credit under the scheme shall be calculated by taking into account the deemed import content of the said export product as per Standard Input Output Norms and determine basic customs duty payable on such deemed imports. The value addition achieved by export of such product shall also be taken into account while determining the rate of duty credit under the scheme. Under the Duty Entitlement Pass Book (DEPB) Scheme, an exporter shall be eligible to claim credit as a specified percentage of job value of exports made in freely convertible currency. The credit shall be available against such export products and at such rate as may be specified by the Director-General of Foreign Trade by a public notice issued in this behalf. 7.. DEPB only permits adjustment in payment of customs duty and if there is no adjustment, the amount in question lapses and is not permitted to be withdrawn/adjusted in any other manner. There is no bar to the amount being transferred to any person and on the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne person to another which is actually payable at the time as well as a sum of money, which is due though not actually payable then. The expression "actionable claim", however, includes also conditional or contingent debts, i.e., a debt which will be due only if a referring to "accruing dues" includes also debts which are to fall due in future. A debt is a sum of money which is now payable or will become payable in future by reason of a present obligation. "Choses in action" in English law means things of which the owner has no actual possession but has only right which can be realised by an action. The term includes (i) a debt, (ii) the benefit of a contract, (iii) and damages for wrong. But from the definition of actionable claim it is apparent that the term has not got such wide connotation, for it clearly excludes from its comprehension right of action for tort. As was observed by the apex Court in Vikas Sales' case [1996] 102 STC 106, when there is no restriction on the purchase and sale of DEPB freely and it has a value unrelated to the goods there is no scope of their being treated as actionable claim. DEPB for all practical purposes represent merchandise and is treated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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