TMI Blog2005 (4) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessment orders impugned they have been charged at 8 per cent. The assertion of some of the petitioners is that they have been differently charged as in some divisions they have been still charged at 4 per cent not 8 per cent. Their further assertion is that the definition of cereals as given under item No. 12 of Annexure III is an exclusive provision and it includes maize in all of its forms and as such it will cover the maize seeds as well. Thus, the demand of tax at 8 per cent is impermissible in law. The said demand has been made in pursuance of the instructions issued by the Commissioner of Commercial Taxes dated May 7, 2002, a copy of which has been annexed as annexure 3 to C.W.J.C. No. 459 of 2005. It is stated that on challenge the said direction has already been quashed by this Court but even still the authorities are influenced by the said direction wherein a rate of tax for maize seed has been prescribed as 8 per cent. 4.. The stand of the State is that admittedly the petitioners are registered under the Bihar Finance Act for sale and purchase of hybrid seeds of maize and other seeds. They are not dealing in cereals. In view of the provision of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the special provision it is not possible to cover the goods in question under a specified entry, (iii) the entry defines cereals which include cereals including maize in all forms and as such the maize seed also is one of the forms of maize and it is included within cereal, (iv) the edibility or non-edibility should not be a test to decide as to whether a particular product is a cereal or not. Even if the maize seeds are non-edible commodity it will be a cereal under entry No. 12 of the Act, (v) it is further submitted that in the interpretation of a fiscal statute, the meaning which is understood by the people in trade and commerce, is to be accepted and technical, scientific test and other criteria should be applied within limits. In support of their submission they have relied upon the judgments which will be referred to at an appropriate place. 7.. The learned counsel appearing for the State on the other hand submitted that cereals and seeds have not to be understood according to the technical, scientific, botanical or dictionary meaning but has to be understood in popular sense, meaning thereby, the sense with which the people conversant with the subject attribute to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -settled that an entry in taxing statute should be construed in its popular sense meaning thereby the sense with which the people dealing the subject-matter is conversant. But once the article has been specified and put under a distinct entry the basis of entry cannot be questioned. A meaning is to be given to a particular article in a fiscal statute which people specially in trade and commerce are conversant with the subject and understood in common parlance [see Ganesh Trading Co. v. State of Haryana [1973] 32 STC 623 (SC), Dunlop India Ltd. v. Union of India AIR 1977 SC 597, Porritts Spencer (Asia) Ltd. v. State of Haryana [1978] 42 STC 433 (SC); AIR 1979 SC 300]. 11.. In the case of Ganesh Trading [1973] 32 STC 623 (SC) the question was whether the paddy and rice can be considered as identical goods for the purpose of imposition of sales tax. Dealing with the said matter the apex Court held that they are two different things in ordinary parlance when paddy is dehusked and rice is produced then the identity of the goods is changed. This decision was relied upon by the counsel for the State. In the case of Dunlop India Ltd. AIR 1977 SC 597, which was relied upon by the counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cludes the cereal as defined under section 14 of the Central Sales Tax Act. 17.. Section 14 of the Central Sales Tax Act defines cereals, that is to say (i) paddy, (ii) rice, (iii) wheat, (iv) jowar or milo, (v) bajra, (vi) maize, (vii) ragi, (viii) kodon, (ix) kutki, (x) barley. The maize is also included at item No. (vi), as stated above. 18.. According to the learned counsel for the petitioners, all forms of maize is included within the definition of "cereals" and as such maize seed also is one of the forms of the maize and is included in the definition of "cereal". They have also submitted that the identity of the maize seeds is not changed only because of use of chemical and poisonous substance for its protection. They relied upon the judgment of the apex Court in the case of Tungabhadra Industries Ltd. v. Commercial Tax Officer [1960] 11 STC 827. In that case the question for consideration was whether hydrogenated groundnut oil is included within the groundnut oil. It was held that when groundnut oil is converted into refined oil, there is no doubt processing, but this consists merely in removing from raw groundnut oil that constituent part of the raw oil which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of industrial starch, then it may cease to be considered as a 'cereal'." 19.. According to the said paragraph their Lordships held that if a cereal is fit for human consumption or even consumption for livestock then it still continues to be a cereal. But when it is fit to be used as manure or at best for production of industrial starch then it may cease to be considered as a cereal. In our view, the said decision instead of supporting the petitioners supports the stand of the State. In this case the maize seeds are soaked with poisonous substance and it is used for the purpose of growing crops only and it is unfit for human consumption as well as for consumption by livestock. 20.. Thus, none of the cases relied upon by learned counsel for the petitioners supports the stand that maize seeds not fit for consumption either by human being or livestock be still included within the definition of "cereal". 21.. Learned counsel for the State relied upon four cases in support of his stand, that is, the judgments of the Supreme Court in the case of State of Punjab v. Chandu Lal Kishore Lal [1970] 25 STC 52 (SC), Ganesh Trading Co. v. State of Haryana [1973] 32 STC 623 (SC), the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered by entry No. 12 of annexure III and the assessing authorities are right in coming to the conclusion that the rate of tax is 8 per cent and not 4 per cent. 25.. Now coming to the question of other submissions advanced on behalf of the petitioners that as the maize seeds have been taxed at 4 per cent for many years that position should not be departed from. In support of the said submission they have relied upon a judgment of the Supreme Court in the case of Radhasoami Satsang v. Commissioner of Income-tax [1992] 193 ITR 321; (1992) 1 SCC 659 and referred to paragraph 16 of the judgment where it has been held that res judicata does not apply to income-tax proceedings. Each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year. 26.. In view of the settled law, nobody can quarrel with the same but the question is as to whether the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
