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TMI Blog2008 (7) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... ew that Deluxe Janatha Cem sold by the assessee fell outside the scope of entry 28 of the Second Schedule of the notification and, therefore, taxable at the rate of 10 per cent treating the same as an item falling under entry 74 of the First Schedule to the Act, though the claim of the assessee that the rate is only 2.5 per cent by virtue of entry 28 of the Second Schedule to notification SRO No. 1728/93. The relevant entries with reference to which the question of law raised to be decided, at the material point of time, were as follows: Sl. No. Description of goods Point of levy Rate of tax 74 Lime, lime products and other white-washing materials not elsewhere mentioned in this Schedule. At the point of first sale in the State by a dealer who is liable to tax under section 5. 10 per cent The State Government in exercise of its powers under section 10 of the KGST Act and in supersession of the notification mentioned in the First Schedule has issued Notification SRO No. 1728/93 dated November 3, 1993, reducing the rate of tax payable under the Act, on the sale or purchase, as the case may be, of goods specified in column (2) of the Second Schedule from the rate specified in colu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislations and it is that the words used in the entries must be construed not in any technical sense nor from the scientific point of view but as understood in common parlance. We must give the words used by the Legislature their popular-sense meaning "that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it". The words "lime" and "dehydrated lime" must, therefore, be interpreted according to ordinary parlance and must be given a meaning which the people conversant with this commodity would ascribe to it. In these revision proceedings, it is the case of the assessee that "Deluxe Janatha Cem" is a dehydrated lime, i.e., a product with a lime base. Therefore, we need to understand what is lime, and dehydrated lime, for which commodity alone the State Government by issuing the notification has reduced the rate of tax payable under the Act. Lime is a product derived by baking sea-shell or limestone in country kilns. Calcium oxide (CaO), commonly known as burnt lime, lime or quicklime is a widely used chemical compound. It is a white, caustic and alkaline crystalline solid. As a commercial product, lime often also contains mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... containing large quantities of silica and alumina so that sufficient calcium silicates and aluminates are formed to give the lime its characteristic hydraulic properties. Hydraulic limes are widely used in Europe for mortars in masonry construction; use in the US, however is limited . . . Uses . . . a large new market exists in the use of lime as a soil stabilising agent in the construction of base courses for modern highways, airport runways and building foundations. In McGraw Hill Encyclopedia of Science and Technology, p. 581, Vol. 7, the following discussion is to be found under the heading "Lime (industry)". A general term for the various products of calcined limestone, for example, quick lime and hydrated lime. Principal uses of lime are in mortar, stucco and plaster for the building industry. Hydraulic lime is made from a lime stone containing silica and alumina which, when the stone is calcined at temperature just short of fusion form unhydrated calcium aluminium silicates, allowing the material to set under water . . . The literature on the subject and dictionary meaning of the words lime, hydrated lime and dehydrated lime, which we have noticed, it is obvious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... category or entry a particular item or product would generally fall and once it is so decided, the same will apply to all sales under the Act; no matter by whom it is made or to whom it is made. In other words, the user of the goods thereafter will have no relevance. It can't be used to levy tax on different dealers at different rates depending upon the use to which the goods are put or the purpose to which they are purchased. Dr. Mohammed Kutty, learned senior counsel would submit, that, the assessing authority while concluding the assessments, has kept in view only the nature of the business of the dealer and the commodity to which it is put to use, and accordingly has rejected the claim of the assessee to grant the benefit of the notification which provides for reduced rate of tax on lime and dehydrated lime. It is true that the assessing authority while refusing to grant benefit of the notification to the assessee, in his assessment order, apart from others, has stated, that the assessee is not a dealer in pesticides, but a dealer in hardware items and therefore, "Janatha Cem" cannot be treated as lime powder, exigible to reduced rate of tax. The assessing authority has f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has stated: "Under the Act, the taxable event is the sale or purchase of goods. The levy of sales tax is normally not dependant on the 'use' of the goods. It is not unknown that an item can be used for different purposes. When a particular item is specifically mentioned under a specific entry, the mere fact that the article can be used for another purpose as well, would not mean that the specific entry can be ignored and that tax can be levied on the basis of a general entry. When the Legislature has clearly included a particular commodity under an entry and prescribed the rate of tax, the court is entitled to assume that the legislative intent was to levy tax at the rate as prescribed under the specific entry and not under any other provision. The principle of 'generalia specialibus non-derogant' is clearly attracted in such a situation. It is an accepted norm for interpretation of a statute that the special overrides the general. It promotes justice. It avoids uncertainty. What is the position in the present case?" We cannot and in fact we shall not dispute the settled legal position of law enunciated by the Full Bench of this court. At the same time, we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the Revenue. He invites our attention to the observations made by this court in the case of Joseph (M.D.) v. State of Kerala [2007] 10 VST 404; [2007] 2 KLT 308. In the said decision, the question of law that was before the court was whether the bleaching powder is assessable as "chemical" under entry 29 of the First Schedule to the KGST Act or whether it falls under "lime and dehydrated lime" taxable at the reduced rate of 2.5 per cent under entry 28 of the Second Schedule of Notification SRO No. 1728/1993. The court while answering the aforesaid question of law has observed as under (at page 406 of 10 VST): "It is obvious from the above that bleaching powder is not lime or dehydrated lime as claimed by the petitioner. On the other hand, it is a chemical compound constituting calcium, chlorine and oxygen. The other name of bleaching powder, namely, chloride of lime obviously indicates that lime is a major constituent of the product. However, what is covered by the notification is admittedly lime and dehydrated lime which are one and the same and difference being that in the latter item, moisture is not present. By no means, the product bleaching powder can be id ..... X X X X Extracts X X X X X X X X Extracts X X X X
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