TMI Blog2009 (9) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... ted and penalty is leviable and finding of the Tribunal is in order and does not call for any interference. Hence this question is also answered against the assessee. - Tax Case Nos.1834 of 2006, 2307 of 2008 and W. P. No. 18770 of 2000 - - - Dated:- 29-9-2009 - F. M. Ibrahim Kalifulla And B. Rajendran,JJ. For the Petitioner : Mr. R. L. Ramani Senior Counsel For the Respondents : Mr. Haja Nasrudeen, Special Government Pleader for Tax ORDER B. Rajendran,J. The petitioner has filed these Tax Cases as against the order passed by the Sales Tax Appellate Tribunal in T.A.No.759 of 1998 and T.A.No.158 of 1999 along with C.O.P.No.258 of 1998 and C.O.P.No.433 of 1998, dated 03.12.1999. 2. Originally the Assessing Authority assessed the net taxable turnover at Rs.54,67,907/- including Rs.5,03,700/- representing first sales of machinery taxable at 8% as proposed in the pre-assessment notice which was taken twice while arriving at the total and taxable turnover, which was a mistake, the Assessing Authority therefore revised the assessment by adopting the correct sales turnover as under: First sales of survey instruments Rs.49,64,207-00 First sales of spares a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onic equipment only. It was further contended that in construing a taxing statute if the legislature has failed to clarify its meaning by use of appropriate language, the benefit must go to the tax payer and if there is any doubt as to interpretation, it must be resolved in favour of the subject and accordingly pleaded for allowing the appeal. It was also contended that this item falls under special entry under the entry of electronic goods and not under the general entry of survey instruments under entry 14 of Part F. It was contended that the levy of penalty under Section 12(3)(b) is not proper inasmuch as there was no wilful evasion or contumacious conduct or infraction of law and therefore pleaded for deleting the penalty levied under Section 12(3)(b). 4. The learned Special Government Pleader contended that the data contained in the catalogue of the petitioner commodity is available in the assessment file and also contended that according to the catalogue the commodity dealt with by the petitioner is nothing but a survey instrument. It was further contended that when there were two entries, the special entry will cancel the general one and therefore, the entry 14 Part F of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a entirely new generation of survey instruments with innovative mechanical and electronic software additions and enhancements. As per the catalogue, the instruments also contain memory card and control panel for multiple functions of the movement. The survey system also consist of powerful telescopic laser theodolite which is used also for night surveying. In short, as per the catalogue and as per the finding of the Tribunal as rightly held that these instruments are intrinsical survey instruments only and there is no dispute also insofar as the conclusion that the instrument is used for surveying purpose. 8. Further, the learned Senior Counsel appearing for the petitioner would only contend that though the instrument is a surveying instrument it cannot be construed or called as a mechanical survey instrument as it is purely managed by electronic gadgets and at the time of passing of the Act the legislatures never thought about implementation of electronic gadgets and whatever it is stated in the Act would only denote the mechanically operated instruments and not to the electronically operated goods. In fact, at this juncture, it is pertinent to extract the relevant provisions w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sification. Hence, the assessment order itself is not legally sustainable and sought for the quashing of the same. 11. The learned Special Government Pleader would specifically contend that as per the declaration made by the petitioner himself in the Customs Department it is only a surveying instrument and also the fact that there was no dispute that it is used only for surveying purpose when especially a specific category has been mentioned in the Act, there cannot be a reference to a general category and therefore, the assessing officer was right in concluding that the machinery has to be levied only in accordance with the specific category i.e. the surveying instruments. He would also specifically point out that a particular commodity is taxable at a particular rate, at the particular entry and the same must be adhered to. He also relied upon the ruling reported in 34 STC 153 and 39 STC 194 for the propositions that separate entry excludes the general entry and the penalty was also rightly imposed in view of the inordinate delay as well as the wrong declaration in charging of the rate. 12. To decide the question involved, whether the tax has to be levied in respect of thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this is a survey instrument which is imported by the petitioner or a new generation instrument and it is used for a total survey system consist of powerful telescopic and laser theodolite which is even used for a night surveying. In fact, we had also the benefit of catalogue of the item manufactured by the Japan company which would also clearly indicate that this is utilised only for surveying purpose and it is also called surveying instrument. 14. Therefore, definitely it cannot be gainsaid by the petitioner that it falls under electronic goods and that cannot be equated to survey instrument operated mechanically. Earlier it was mechanically operated, now it is being made as electronic devices. 15. The learned Senior Counsel appearing for the petitioner would further contend that on a reading of First Schedule of T.N.G.S.T. Act, Part B entries 38, 39, 40, 41, 42, 50, 51 and 52 which all would specifically say in respect of electronic items and charging 3% as the tax whereas if we take Part D entry 41 which would denote non-electronic weighing machines, dipping measures, metre scales, the sales tax would be at 8% and if we take Part E entry 20 which will denote electric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect the other ruling 131 STC 160 (All) Cannon India (P) Ltd; 11 VST 277 (All) Barco Electrical System, 14 VST 150 (Ker) K.M.Mohammed Habeebulla, the decision of the Hon'ble Supreme Court has followed in the above three cases. 18. The learned Senior Counsel appearing for the petitioner would further rely upon 176 IRT 435 (SC) for the interpretation of statute and intention in granting the exemptions wherein the Hon'ble Supreme Court has held that while giving a meaning to an item contained in the schedule of articles, the Court should normally give it a meaning intended by the framers of the Schedule by looking at the various articles mentioned in a particular group. All the items in one group should be considered in a generic sense. It appears that class III of the schedule in the instant case was intended to deal with the subjects of methylated, denatured and rectified spirit which was brought within the limits of the Nagar Mahapalika for use as articles for lighting, fuel, washing and lubricants at the low rate of Re.0.05 per litre while liquor brought within its limits for use as an article of intoxication was intended to be subjected to levy of octroi duty at the hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dule thereon definitely there is a distinction. In all these cases, only if there is a difference that the benefit of doubt can be given to assessee but in this case there is no ambiguity, there is no difference of opinion as it has been specifically made as one that of a surveying instrument which is also admitted. 21. In the case of BPL Ltd., reported in 121 STC 450 it is worthwhile to mention that the relevant portion of the judgement in paragraph 4 itself it is clearly stated that prior to July 20, 1988, the rate of sales tax leviable on the sale of automatic washing machine was 10%. On July 20, 1988, by a notification issued in exercise of power contained in section 9 of the Andhra Pradesh General Sales Tax Act, 1957, the rate of tax payable on the sale of electronic goods , as defined in the said notification was reduced to 2 paise in a rupee with effect from July 1, 1988. This notification also exempted the sale of electronic goods from the levy of additional tax under section 5-A and surcharge on sales tax under section 6-B of the said Act. The term electronic goods was also defined in the notification as electronic goods means electronic systems, instruments, appliances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to the notification it would be construed as an electronic goods and finally held an electronic washing machine would come under 38(v) and the notification dated July 20, 1988 would apply to all electronic goods including automatic washing machines of the appellants. Therefore, the basis for the judgment is the subsequent notification which gave the concessional rate of tax for giving a pep up to the electronic industries. Whereas in this case the very act prohibits the same and very act excludes the same. Therefore, the ruling cited by the petitioner will not be applicable to the facts of this case. Part B of 50 clearly stipulates that other goods specified elsewhere in the schedule would be excluded. Therefore, there can be no comparison in between the concession given under the notification can be applied to the facts of the case when act clearly excludes the special item from the general entry. 22. The learned Special Government Pleader has brought the following rulings to the notice of this Court: 1. 139 STC 504 (Ker) Southern Gas Ltd vs. 2. 84 STC 571 (Guj) C.K.Gause Bandage Mfg. Co. 3. 147 STC 421 (SC) Carrier Aircon Ltd. 4. 147 STC 329 (Ker) Stovekraft Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in B - 50, the word used is electronic goods but it also specifically stated that other than those specified elsewhere in the Schedule. Therefore, the literal meaning of the common understanding in the interpretation of a statute could only mean that wherever the product is specifically mentioned elsewhere then such product will be excluded as found in B - 50. But, in this case, though reliance has been made specifically that the theodolite is an instrument, namely, survey instrument, fully computerised and used on electronic devices. The new concession given in respect of electronic goods has to be taken note of and such a concession should be given in this case also by placing reliance upon the Hon'ble Supreme Court ruling in BPL Ltd., case is legally not sustainable. We have already held that BPL Ltd., case will not be applicable to the facts of this case. Similarly, the ruling cited by the Senior Counsel appearing for the petitioner reported in 42 STC 433 can be easily distinguishable. The finding is extracted below: The reason is that, as pointed out by Story, J., in 200 Chests of Tea (1824) 9 Wheaton (U.S.) 430, the legislature does not suppose our merchants to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ordinary traders and merchants, textile fabrics. We have, therefore, no doubt that dryer felts are textiles within the meaning of that expression in items 30 of Schedule B. 25. Here, the Hon'ble Supreme Court has come to the conclusion that the use to which it may be put is also immaterial and does not bear in its character as a textile. A textile may have diverse uses and it is not the use which determines its character as textile. Therefore, they felt that the dryer felts which are used only as absorbents of moisture in the process of manufacture in a paper manufacturing unit. That cannot militate against dryer felts falling within the category of textiles , if otherwise they satisfy the description of textiles . Whereas, in this case, the instrument which is used is clear, correct and identified it is only as a survey instrument be that it is mechanically operated or electronically operated and as stated supra the word theodolite used also as quoted by the Madras High Court reported in (1998) 109 STC 593 (Lawrence and Mayo India (Private) Ltd., V. State of Tamil Nadu). In this case it is relevant to extract the meaning of theodolite as given in The New Lexic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be applied for the facts of the present case as there is no distinction at all insofar as the product or as to the purpose for which it is used. 27. Whereas the learned Special Government Pleader relied upon a decision reported in 47 STC 359 (SC) (Indo International Industries Vs. Commissioner of Sales Tax, Uttar Pradesh) which also consisting Three Judges Bench of the Hon'ble Supreme Court has categorically held that it is well-settled that in interpreting items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, resort should be had not to the scientific and technical meaning of the terms or expressions used, but to their popular meaning, that is to say, the meaning attached to them by those dealing in them. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted. In that ruling, it is further held that the clinical syringes manufactured and sold by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds used therein. If a particular article would fall within a description, by the force of words used, it is impermissible to ignore that description, and denote the article under another entry, by a process of reasoning. The other judgments are also to the same effect that when there are specific entries it will exclude the general entry. 30. Whereas the judgment relied upon by the learned Senior Counsel appearing for the petitioner reported in (1988) 70 STC 97 (Nagar Mahapalika, Bareilly V. State of U.P. and others) wherein the Hon'ble Supreme Court has categorically held while giving a meaning to an item contained in the Schedule of articles, the court should normally give it a meaning intended by the framers of the Schedule, by looking at the various articles mentioned in a particular group. All the items in a group should be considered in a generic sense, which was mainly relied upon by the learned Senior Counsel appearing for the petitioner to substantiate his case. This ruling will not apply to the facts of the case as held earlier the meaning is very clear and there is no ambiguity. 31. The other decision relied upon by the learned Senior Counsel appearing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... description, by the force of words used, it is impermissible to ignore that description, and denote the article under another entry, by a process of reasoning. Therefore, in the present case, when it is very clear that the product is survey instrument the full interpretation should be given for the word as found in the Schedule and therefore, there is no need for any other definition or interpretation. While taking into consideration the various rulings of the Hon'ble Supreme Court as well as this Court definitely we could safely conclude that for the product in question there cannot be any second interpretation and it would only fall under Part F 14 of the First Schedule since it comes under special category would exclude the general category. Therefore, the Tribunal has given a cogent and correct finding including taking into consideration of the assessment record and the catalogues technical details had given a clear finding of fact that the instruments are intrinsically survey instruments only and also given a finding that there is no ambiguity in the entries and the framers of law have classified these items in one group irrespective of the fact whether these items are op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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