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TMI Blog1976 (2) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... s after the expression "magnifying glasses". It was submitted by the respondents that these magnifying glasses were covered by entry 22 of Schedule E to the said Act and were liable to tax at the rate specified therein. After the receipt of this application, it appears that the Commissioner issued a show cause notice calling upon the respondents to show cause as to why the said magnifying glasses should not be treated as articles made of glass and, as such, held to be covered by entry 44 of Schedule C to the said Act. At the hearing before the Commissioner of Sales Tax, the respondents contended that the said magnifying glasses were not covered by entry 44 of Schedule C, as the bulk of the cost of manufacturing a magnifying glass was incurred in making the handle and frame and pointed out that the magnifying glasses sold by them were lenses fitted with chromeoplated handle and frame and that the value of the lenses in the said magnifying glasses was much less than the cost of the handle and the frame, the glass part of the said magnifying glasses cost even less than half of the cost of the chromeoplated handles and frames. It was also contended by the respondents that the said magn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sware of domestic use and, therefore, magnifying glasses (optical appliances) were not covered by the said word 'glassware' in that entry?" Since the arguments in the case turn, to a large extent, on entry 44 of Schedule C to the said Act, as it stood at the relevant time, it would not be out of place to take note of the same at this stage. Description of the goods covered by entry 44 of the said schedule read thus: "Articles of domestic use made from porcelain or glazed earthenware, sanitary fittings made primarily from glazed earthenware or porcelain (other than pipes) and glassware when sold at a price of not less than one rupee per piece. Explanation.-(i) One cup and one saucer and (ii) any vessel and its lid sold together, shall be deemed to be one piece, but not a set of cups and saucers, plates or dishes, etc." It may be further mentioned that entry 22 of Schedule E to the said Act is a residuary entry and there is no dispute before us that if the aforesaid magnifying glasses did not fall within entry 44 of Schedule C of the said Act, they would be covered by entry 22 of Schedule E thereof and would attract the liability to tax at the rate mentioned therein. The submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided, in our view, against the Commissioner of Sales Tax. It is somewhat unfortunate that the respondents are not represented before us, so that we have no assistance from any Advocate on behalf of the respondents who could have put forward the opposite point of view. In these circumstances, we propose to leave this particular question open and to proceed to decide the reference on the footing or assumption that the term "glassware" used in entry 44 of Schedule C to the said Act is not restricted to articles of domestic use. It was next submitted by Mr. Desai that in the present case the respondents had not led any evidence as to what was the true or popular meaning of the term "glassware", and hence that word in entry 44 should be interpreted, according to its dictionary meaning. In support of this submission, Mr. Desai relied upon the decision of a Division Bench of this Court at Nagpur in Tribuwandas Gulabchand & Bros. v. State of Maharashtra[1965] 16 S.T.C. 452., where it was held that the question whether the term "glassware" in entry 15 of Schedule I, Part I, to the C.P. and Berar Sales Tax Act, 1947, includes glass sheets as understood in trade parlance is a matter of evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tical appliances)". It is also significant that the respondents have been described in the application dated 5th May, 1966, as carrying on the business as manufacturers of optical appliances and brass parts and, in the order of the Commissioner dated 8th April, 1967, too, the respondents have been described as manufacturers of optical and surgical appliances, electrical and automobile spare parts and it is further stated that the respondents claim to be specialists in brass parts and plastic mouldings. There is nothing in the judgment of the Tribunal to show that there was any dispute about this description given to the articles in question or about the business of the respondents. This, to our mind, indicates that even though there was no evidence of the type we have referred to above, there was sufficient indication in the application of the respondents that in the trade parlance the magnifying glasses manufactured by them could not be regarded as glasswares but were known in the trade parlance or the common parlance in trade as optical appliances. The word "optical" has been defined in the Concise Oxford Dictionary of Current English, Fourth Edition, at page 833, as "...belongin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the term "glassware". Mr. Desai finally relied on the decision of the Madras High Court in P. Orr & Sons v. Collector of CustomsA.I.R. 1965 Mad. 312., where it has been held that the word "glassware" used in item 60(9) of the Tariff Act, 1934, includes lenses and object glasses. In our view, this decision is not useful for the purpose of deciding the question before us. In the first place, it arises from an altogether different Act and item 60(9) of the Tariff Act, with which the court was concerned in that case, provided for the levy of countervailing duty. It has been pointed out that the reason for the imposition of the duty under item 60(9), equivalent to excise duty leviable on similar goods manufactured in this country, is that a manufacturer of the same category of goods in this country ought not to suffer unfair competition from outsiders. Moreover, even in that case, the items concerned, viz., lenses and object glasses, were entirely made of glass. In our view, the magnifying glasses sold by the respondents cannot be regarded as glasswares and, hence, are not covered by entry 44 of Schedule C of the said Act as it stood at the relevant time. In the view, which we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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