TMI Blog2004 (5) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... ciated Cement Co. Ltd.). 2. Civil Appeal No. 7188 of 1997 has been preferred against the judgment and order dated April 21, 1997, of a division Bench of the Madhya Pradesh High Court deciding the issue relating to levy of export tax on certain products manufactured by M/s. Associated Cement Co. Ltd. 3. By a resolution published in M.P. Gazette dated October 25, 1991, the Municipal Corporation, Katni, levied tax on export of goods from within the area of the Municipal Corporation. Entries Nos. 1 and 2 in the Schedule appended to the notification read as under: SCHEDULE S. No. Name of article Tax proposed (1) (2) (3) 1. All types of cement per cent of the cost of the consignment; 2. Materials made of cement 1 per cent of the cost of article. 4. The appellants, Associated Cement Co. Ltd., filed writ petition challenging the levy of export tax on refractory cement and acco proof basically on the ground that they were not covered by the Schedule as they were not cement. The writ petition was dismissed by a learned single Judge but the Letters Patent Appeal was partly all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction activity is concerned the most important criteria applicable in the case of cement is its strength in ordinary temperature but for refractory it is its refractoriness at high temperature. Lastly learned counsel has submitted that in common parlance and in trade, refractory can never be understood as cement. It has thus been urged that the levy of export tax on refractory is wholly illegal as the said product is not covered by the relevant entries in the Schedule. 6.. Shri Anoop G. Choudhary, learned Senior Counsel appearing for the Municipal Corporation, Katni, has submitted that entry 1 in the Schedule mentions "all types of cement" and so long as the material is cement whatever be its chemical composition, nature or characteristic it will be covered by the said entry. Learned counsel has laid emphasis on the words "all types of" and has submitted that it is a very comprehensive entry and consequently irrespective of the purpose for which the article is used on account of its special qualities and components, etc., as long as it is cement it will be covered by the entry. According to Shri Choudhary the fact that refractories are used in furnaces and are capable o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made of magnesite, dolomite, or chrome ore, termed basic refractories (because of their chemical behaviour); and (4) a miscellaneous category usually referred to as special refractories. 8. The appellant has also placed on record certain technical data regarding the refractories manufactured by it which are used in iron and steel industry and in fertiliser industry. This technical data shows that different varieties of refractories are manufactured for use in different kind of industries. Learned counsel has also laid emphasis upon the fact that for the purpose of levy of excise duty the Central Government has treated refractory as distinct from cement. Tariff item No. 23 C. B. E. and C. Tariff Advice No. 75/80, dated November 24, 1980, reads as under: "It is considered and clarified for the information of the trade and all others concerned that fire clay/refractory mortars and ramming masses are classifiable under item 68 and not under item 23 of Central Excise Tariff. The relevant tariff entries are as under: Item No. 23 Cement Item No. Tariff description Rate of duty 23 Cement, all varieties (1) Grey portland ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try be understood in any technical or botanical or scientific sense. In the case of technical words, it may call for a different approach. The approach to be made in such cases has been stated by Lord Esher in Unwin v. Hanson [1891] 2 QB 115 at 119 thus: 'If an Act is directed to dealing with matters affecting everybody generally, the words used have the meaning attached to them in the common and ordinary use of language. If the Act is one passed with reference to a particular trade, business, or transaction and words are used which everybody conversant with that trade, business or transaction, knows and understands to have a particular meaning in it, then the words are to be construed as having that particular meaning, though it may differ from the common or ordinary meaning of the words.' 12.. We would only add that there should be material to enter appropriate finding in the case. The material may be either oral or documentary evidence." The word "cement" has not been defined in the relevant notification. Therefore, it has to be understood in the same way as is understood in common parlance. Cement is exclusively used as a building material and is a commodity of everyday u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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