TMI Blog1991 (8) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... imposes a lower rate of tax in respect of certain goods with which we are not concerned. As per sub-section (3)(a), notwithstanding anything contained in sub-section (1), the tax shall be levied at a single point and is imposed on the first or the earliest of successive dealers in the State at the rates specified in column (3) of the Second Schedule in respect of the goods mentioned in column (2) of the Second Schedule. Further sub-clauses of section 5(3) provide different rates of taxes, with which also, we are not concerned now. Sub-section (4) of section 5 pertains to the declared goods. As per section 8, sale of goods specified in the Fifth Schedule to the Act is not taxable and are thus exempted. Similarly under section 8-A State Government is given power either to grant exemption or reduce the rate of tax payable under the Act, by issuing appropriate notification. 3.. Therefore, the tax payable in respect of the sale of goods specified in the Second Schedule, is only at the rate stated in the said Schedule and the tax is levied on the first or the earliest of the successive dealers. The sale or purchase of those goods are not taxed under the Act anywhere else in the Act. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill lead to an anomalous situation. We are of the view that this last submission need not detain us long because the question raised in this manner by the learned counsel is purely imaginary and the appropriate answer if at all to the question could be arrived at as and when really the said question arises. Prima facie it looks to us that section 5(3)(a) will be attracted and will govern such pens as and when the pens would fall within the description of "pens costing Rs. 10 and above". 6.. Mr. Narayan, the learned counsel for the petitioner, narrated the history of the provisions levying tax under the Act, on pens. Initially when the Act came into force, pens were included in entry 62 of the Second Schedule to the Act; this continued till about the year 1970; thus pens were subjected to a single point levy under section 5(3)(a). In the year 1970, this entry 62 was omitted and therefore pens went out of the Second Schedule and section 5(3)(a) ceased to apply to pens; consequently, pens attracted levy under section 5(1) and every dealer had to pay tax on his turnover of pens comprised in his taxable turnover. This was the position till March 31, 1984. Thereafter present entry 164 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... function of a court is to interpret it "according to the intent of them that made it"; from this function court cannot resile; intention of the Legislature should not go in vain or be left to evaporate. Intention as expressed in an unambiguous and clear language has to be given effect to. Where the intention is covert and couched in language which is imperfect, imprecise and deficient or is ambiguous or enigmatic and external aids to interpretation are scanty and indeterminate, court is in no better position than any other person faced with an unsolvable puzzle and in such a situation, solution to the ambiguity has to come from legislative amendment to the language used in the statute. Interpretative skill of the court has to function only when it is possible to operate judicially and not legislatively. In the words of Lord Denning, ironing out the creases would be a judicial function, and if we may add to this, we say that, stretching by ironing out the creases is not the same thing as stitching an addition to the existing garment. 8.. In Commissioner of Sales Tax v. Parson Tools and Plants [1975] 35 STC 413 (SC) at page 418; AIR 1975 SC 1039 at page 1043, the principle is stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, then, tax levied under section 5(1) is attracted. The learned counsel for the petitioner quite rightly, was not in a position to point out any other provision in the Act governing the low priced pens. 10.. If the intent was to exempt the low priced pens from the purview of taxation, at least, the State Government while issuing the notification under section 8-A would have extended the exemption retrospectively; that has not been done; admittedly, the Notification issued on August 7, 1986, was prospective in operation and did not grant exemption to the earlier sale transactions in respect of low priced pens. 11.. The history of the legislation stated by the learned counsel for the petitioner shows that, till at least the year 1970 all classes of pens were taxed under section 5(3)(a) at single point; thereafter till March 31, 1984, all the pens were taxed under section 5(1). Thus, at least till March 31, 1984, low priced pens were not exempted from taxation and therefore, a permanent intention not to tax low priced pens, is not deducible at all. 12.. Further, we fail to understand as to how, low priced pens could be brought out of section 5(1). Language of section 5(1) read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods only is relevant, even though the goods mentioned is described not only by name but also with its price, then, in those cases of footwear and garments, it was unnecessary for the Legislature to specify the low priced articles in the Schedule. Mr. Narayan explained this by urging that, these insertions in the Fifth Schedule of footwear and garments, were by abundant caution, to remove doubts if any about their liability to the levy. Courts should not impute redundancy and superfluity to the Legislature. Mr. Narayan's explanation, if accepted, would result in treating those legislative measures as futile exercises. 13.. The petitioner laid great emphasis on the fact that pens costing less than Rs. 10 were mostly used by poorer sections of the society and therefore, we should infer an intention in the Legislature not to tax this sales. It may be, that low priced pens are mostly purchased by the poorer sections of the society. But, whether the Legislature intended them not to be burdened with the tax, has to be clearly brought out from the legislative provisions; at least there should be a clear manifestation of such an intention by necessary implication. We cannot assume that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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