TMI Blog1977 (3) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... y were sanitary fittings. Of course, we must make it clear that if at any time the material produced before the sales tax authorities establishes that in a given case the hume pipes were meant for use in a bath-room, lavatory, urinal, etc., then the notification of the Government would be attracted and the assessee must be liable to be taxed at the rate of 7 per cent. - C.A. No. 784 of 1972, C.W. No. 1111 of 1970 - - - Dated:- 3-3-1977 - BHAGWATI P.N. AND MURTAZA FAZAL ALI S. JJ. S.V. Gupte, Senior Advocate (S.V. Vaidya, K. Rajendra Chaudhary and Mrs. Veena Devi Khanna, Advocates, with him), for the respondent. S.C. Manchanda, Senior Advocate (O.P. Rana, Advocate, with him), for the appellants. ------------------------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in appeal to the Assistant Commissioner (Judicial), the respondent filed a writ petition in the High Court assailing the order of the Sales Tax Officer on the ground that the hume pipes manufactured by the assessee could not, by any stretch of imagination, be construed to be "sanitary fittings", nor were they ever used as such. The High Court, after hearing counsel for the parties and after perusing the materials on the record, accepted the plea of the respondent and held that the hume pipes could not be treated as "sanitary fittings" and the Sales Tax Officer was, therefore, not entitled to levy tax at the rate of 7 per cent. The High Court accordingly quashed the assessments made by the Sales Tax Officer and hence this appeal by the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-affidavit before the High Court, did not controvert any of the facts mentioned by the respondent, vide paragraphs 4, 5 and 6 of the counter-affidavit filed before the High Court. The materials consist of certificates by Local Self-Government, Engineering Department, U.P., to show that the pipes supplied by the respondent were not used as "sanitary fittings". This certificate appears at page 34 of the paper book and shows that R.C.C. pipes purchased from the respondent had not been used as sanitary fittings by the L.S.G.E. Department. This certificate is signed by the Executive Engineer on behalf of the Chief Engineer of the department. From pages 36-39 and 41 of the paper book appear the certificates given by certain reputed dealers in sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would attribute to it'. It is to be construed as understood in common language." To the same effect is a decision of the Exchequer Court of Canada in King v. Planters Nut and Chocolate Company Limited (1951) C.L.R. (Ex. Court) 122 at 126., where the court observed as follows: "The words 'fruit' and 'vegetable' are not defined in the Act and so far as I am aware they are not defined in any other Act in pari materia. They are ordinary words in every day use and are therefore to be construed according to their popular sense." In these circumstances, therefore, we have to construe the expression "sanitary fittings" in the popular sense of the term as it is used in our every day life. Thus construing, it would be manifest that there could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as to what is the true connotation of the words "sanitary fittings" and whether the hume pipes manufactured and sold by the respondent were sanitary fittings within the meaning of that expression was a question of law and since the entire material on the basis of which this question could be determined was placed before the Sales Tax Officer and it pointed in one and only one direction, namely, that the hume pipes were not sanitary fittings and there was nothing to show otherwise, the High Court was justified in entertaining the writ petition. Moreover, there is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party. It is always a matter of discretion with the court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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