TMI Blog2007 (7) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to be defined, must be construed as comprehending not only such things as they signify according to their nature and import, but also those things, which the interpretation clause declares that they shall include. However, when the word "include" or "including" is used in interpretation clauses, for the purpose of including within the definition of a term a particular item, which would, otherwise also, fall within such a term, such use of the word "include" or such inclusive definition of a given term would imply exhaustiveness and limitation. When this test is applied to the facts of the present case, it becomes transparent that by using the word "including" in entry 4, the Legislature intended to illustrate as to what items the expression "sound transmitting equipment" would convey. It further logically follows that under entry 4, "sound transmitting equipment" would include only telephones, mobile phones, pagers and components and parts thereof and no other item, such as, optical fibres, cables and accessories. Situated thus, it is clear, I do hold, that no entry tax, in terms of entry 4 of the Act of 2001 can be imposed on the entry of goods, such as, optical fibres, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accessories were not mentioned specifically in the Schedule to the Act of 2001, respondent No. 1, namely, OIL, sought for clarification from the State Government if optical fibre, cables and accessories were items chargeable under the Act of 2001. This clarification was sought for by respondent No. 1, because of the fact that it was respondent No. 1, who was to import optical fibre, cables and accessories in terms of the contract agreement, dated June 20, 2003, aforementioned. Respondent No. 1 also sought for exemption from payment of entry tax on the said items if the said items were taxable items under the Act of 2001. By a notification, dated November 21, 2003, issued in exercise of its powers under section 3(3) of the Act of 2001, the Government of Assam, Finance (Taxation) Department, granted exemption from payment of entry tax by respondent No. 1 on import of optical fibre, cables and accessories from outside the State of Assam provided that these goods were exclusive property of respondent No. 1, the exemption having been so granted on the ground that respondent No. 1 is a Government of India enterprise and the said goods are imported for its own use. This notification was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... August 1, 2003 meaning thereby that with effect from August 1, 2003, import of optical fibre, cables and accessories from outside the State of Assam by respondent No. 1 stood exempted from payment of entry tax provided that the goods, so imported, were the exclusive properties of the respondent No. 1. The exemption, so granted, was made valid for a period of three years with effect from August 1, 2003. Following the notification, dated July 7, 2004, aforementioned, respondent No. 2, namely, Manager (Finance and Accounts), OIL, informed, vide its letter dated July 10, 2004 respondent No. 5, namely, Superintendent of Taxes, that optical fibre, cables and accessories were being imported by respondent No. 1 for its own use and that as the goods, so imported, were exclusive properties of respondent No. 1, no entry tax was payable by respondent No. 1 on the said imported commodities. On his part, respondent No. 5, namely, Superintendent of Taxes, however, issued a notice, dated July 17, 2004, asking respondent No. 5 to furnish certain information relating to the road permit issued by the Department of Taxation for importing the consignment from outside the State. By the letter, dated Jul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was liable to pay entry tax thereon, respondent No. 1 had deposited with the Government the taxable amount to avoid penal charges and accordingly directed the petitioner-company to pay the requisite amount immediately. Since the petitioner-company did not pay the amount demanded by respondent No. 1 as entry tax, respondent No. 2, namely, Deputy General Manager (Pipeline), OIL, issued a letter, dated December 16, 2004, informing the petitioner-company that if the payment of the sum of Rs. 31,00,569 was not made, the authorities concerned would be constrained to invoke the performance of the bank guarantee furnished by the petitioner-company. (v) In the circumstances, as indicated above, the petitioner-company, contending, inter alia, that optical fibre, cables and accessories do not fall within the purview of the taxable goods as described under entry 4 of the Schedule to the Act of 2001 and, hence, the petitioner-company was not liable to pay entry tax on the said items and that the threat of invoking the bank guarantee by respondent No. 1, if permitted, would prejudice the right and interest of the petitioner-company, came to this court seeking, with the help of the present wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mobile phones, pagers and components and parts thereof and not any other item, such as, optical fibres, cables and accessories. The basis, for the submissions so made by Dr. Saraf, is that where two or more words, susceptible of analogous meaning, are clubbed together, they are understood to be used in their cognate sense. They take, as it were, their colour from, and are qualified by, each other, the meaning of the general word being restricted to a sense analogous to that of the less general. In entry 4, submits Dr. Saraf, the terms included within the expression sound transmitting equipment are clarificatory and reflects exhaustiveness. Had the intention of the Legislature been to bring, within the meaning of entry 4, all possible sound transmitting equipments, it was, contends Dr. Saraf, quite unnecessary to specifically mention therein only telephones, mobile phones, pagers and components and parts thereof, for, telephones, mobile phones and pagers, otherwise also, fall within the expression sound transmitting equipment . The only purpose, according to Dr. Saraf, in specifying the items telephone, mobile phones and pagers and components and parts thereof is that onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sons [1991] 3 SCC 617. Resisting the submissions made by Mr. Dubey, Dr. Saraf contends that none of the decisions, which Mr. Dubey relies upon, clarifies as to when the word include shall be treated to be expansive or exhaustive. All these decisions, points out Dr. Saraf, merely interpret the given words or items in the context of the provisions of the relevant statute and should, therefore, be treated to be confined to the facts of the given cases. It is submitted by Dr. Saraf that when a word or an item does not, ordinarily, fall within the sweep of a term, which an enactment seeks to give by using the word include or including , such a definition has to be treated as expansive by nature and not exhaustive; whereas, when the words, which are included within a term, which an enactment seeks to define, ordinarily, also falls within the sweep of the term (which the enactment defines), such a definition has to be treated as exhaustive and would, therefore, include, within the term, which has been defined, only such items, which are sought to be included within the defined term. The decisions, therefore, cited on behalf of the State respondents, are not, according to Dr. Sar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Staterespondents contend that these items, being sound transmitting equipments, are covered by entry 4 of the Schedule to the Act of 2001. As the controversy, in the present writ petition, relates to the interpretation of entry 4, it is necessary that the contents of entry 4 be put to a cool and dispassionate analysis for the purpose of determining if the optical fibre, cables and accessories can be held to have been included within the expression sound transmitting equipment . Entry 4 is, therefore, reproduced below: Sound transmitting equipment including telephones, mobile phones, pagers and components and parts thereof. From the contents of entry 4, what becomes transparent is that while defining the expression sound transmitting equipments , the items, such as, optical fibre, cables and accessories have not been specifically mentioned as items covered by the expression sound transmitting equipment . In fact, it is not in dispute that the items, namely, optical fibre, cables and accessories are not specifically mentioned in the Schedule to the Act of 2001. The question, therefore, which needs to be determined is, as to what the word including , appearing in entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l import, but also these things which the interpretation clause declares that they shall include. But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions. Having taken note of the above, the apex court observed, in our opinion the word 'including' is intended to clarify or explain the concept of land held or let for purposes ancillary to agriculture. The ideal seems to be to remove any doubts on the point whether waste land or forest land could be held to be capable of being held or let for purposes ancillary to agriculture. We must, therefore, hold that forest land or waste land in the area in dispute cannot be deemed to be an estate within clause (a)(iii) unless it was held or let for purposes ancillary to agriculture. There is no dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to have been used for the purpose of expansion that it would become necessary to determine if optical fibre, cables and accessories fall, otherwise also, within the meaning of the expression sound transmitting equipment so as to bring these items within the sweep of entry tax. I am guided to adopt the above view from the decision in South Gujarat Roofing Tiles Manufacturers Association v. State of Gujarat [1977] 50 FJR 51 (SC); [1976] 4 SCC 601, wherein the apex court was required to examine as to whether Manglore pottery roofing tile manufacturers would be covered by entry 22 of Part I of the Schedule to the Minimum Wages Act, 1948. The said entry read as under: Employment in potteries industry. Explanation. For the purpose of this entry potteries industry includes the manufacture of the following articles of pottery, namely: (a) Crockery. (b) Sanitary appliances and fittings. (c) Refractories. (d) Jars. (e) Electrical accessories. (f) Hospital ware. (g) Textile accessories. (h) Toys. (i) Glazed tiles. On examination of the question as to whether the word including , which appears in the Explanation to the expression Employment in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the pottery industries, then, the inclusion of the well recognised articles of pottery, within the meaning of the term potteries industry , would be meaningless. To put it a little differently, had it been the legislative intention to bring, within entry 22, all possible articles of pottery, it was, as observed by the Supreme Court, quite unnecessary to add an Explanation and enlist therein only nine items of pottery. Similar is the case at hand. If the expression sound transmitting equipment , which appears in entry 4, was intended to include all equipments of sound transmission, then, there was really no purpose in bringing, within sweep of the expression sound transmitting equipment , only three items, namely, telephones, mobile phones, pagers and components and parts thereof, and exclude thereby other items of sound transmitting equipment . Another clear case of the word including having been used as clarificatory or illustrative of a general expression is the case of State of Uttar Pradesh v. Raja Anand Brahma Shah reported in [1967] 1 SCR 362. In Raja Anand [1967] 1 SCR 362, the apex court was required to construe article 31A(2) as enacted by the Constitution (17t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is sought to be included. But when an item, otherwise, also stands included within a term, which is defined, the implication would be that the item, mentioned by way of inclusion, is clarificatory and imposes limitation. Having taken note of the decision in South Gujarat Roofing Tiles Manufacturers Association [1977] 50 FJR 51 (SC); [1976] 4 SCC 601, a Constitution Bench, in Godfrey Phillips Ltd. v. State of U. P. reported in [2005] 139 STC 537 (SC); [2005] 4 SCC 186, observed at para 77 thus: 77. Where two or more words susceptible of analogous meaning are clubbed together, they are understood to be used in their cognate sense. They take, as it were, their colour from, and are qualified by, each other, the meaning of the general word being restricted to a sense analogous to that of the less general. As said in Maxwell on the interpretation of statutes, 12th Edition, page 289. 'Words, and particularly general words, cannot be read in isolation; their colour and content are derived from their context'. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. reported in [1987] 1 SCC 424, the Supreme Court, having taken note of the observat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that the word include conveys different meanings in different contexts and that in a given case, when the word include ropes in certain items, which would not, normally, be part of such items, the word include may be taken to have been used for the purpose of enlarging the definition, but when the word include is used for roping in terms, which are merely illustrative in nature, then, it may imply limitation. In the case of Hospital Mazdoor Sabha [1959] 17 FJR 423 (SC); AIR 1960 SC 610, which Mr. Dubey places reliance upon, the question, which fell for determination was as to whether a hospital is covered by the definition of industry as contained in section 2(j) of the Industrial Disputes Act. From a careful reading of the observations made in Hospital Mazdoor Sabha [1959] 17 FJR 423 (SC); AIR 1960 SC 610, what transpires is that having found that the word industry has been defined by section 2(j) to mean, inter alia, business, trade, undertaking, manufacture or calling of employers, etc., which are all words of wide meaning and import, the apex court concluded that the word includes , which appear in section 2(j), indicates expansiveness and not restrictive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in South Gujarat Roofing Tiles Manufacturers Association [1977] 50 FJR 51 (SC); [1976] 4 SCC 601. What emerges from the above discussion is that none of the authorities, cited by Mr. Dubey, lays down that the word include or including , occurring in a definition clause will always reflect the legislative intent to expand the meaning of the term sought to be defined. Hence, it is not necessary that always and invariably, the word include or including , which appears in a statute, would be aimed at expanding the meaning of the term, sought to be defined, by using the word include or including . Where the word include or including brings within the sweep of a term such word or words, which carry very wide meaning or which do not ordinarily fall within the term, which is sought to be defined, then, the term, which is sought to be defined, must be construed as comprehending not only such things as they signify according to their nature and import, but also those things, which the interpretation clause declares that they shall include. However, when the word include or including is used in interpretation clauses, for the purpose of including within the definition o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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