TMI Blog2010 (2) TMI 1076X X X X Extracts X X X X X X X X Extracts X X X X ..... the court was made by ARVIND KUMAR J. The Revenue is questioning the correctness and legality of the judgment and order dated August 17, 2006 passed by the Karnataka Appellate Tribunal in STA Nos. 1674 to 1677 of 2004. The above revision petition has been admitted by this court on January 21, 2008. In view of the revision petition having been admitted it is noticed by us that question of law had not been formulated at the time of admission. It is agreed to by the learned counsel appearing for the petitioner as well as the respondent that, non-formulating of the question of law at the time of admission is due to oversight and submit that question of law formulated in the revision petition may be taken up as question of law which arises for consideration. The said question of law as formulated in the revision petition which arises for consideration reads as under: Question of law In the facts and circumstances of the case, whether the Tribunal is justified in holding that metallic gas cylinders are not exigible to levy of entry tax as packing materials falling under notification dated September 23, 1998? The brief facts are as follows: The respondent is a regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel appearing for the respondent-assessee. Smt Geetha Menon would submit that section 3(1) of the KTEG Act is the charging section and it provides for levy and collection of tax on entry of any goods specified in the First Schedule brought into a local area for consumption. Entry tax not exceeding five per cent of the value of goods can be levied and collected by the State Government which may be specified in the notification either retrospectively or prospectively. She would submit goods have been specified in the First Schedule and relevant entry applicable to LPG cylinder according to State would be entry 66 which defines and includes packing materials and she would submit, that percentage of tax to be levied was specified in two notifications, namely, January 7, 1998 and September 23, 1998. She would elaborate her submission by contending that LPG cylinders are packing materials for filling the gas into cylinders and as such entry of cylinders into local area attracts tax at two per cent and submits that the State is fully justified in levying the same. She would contend that the words used are steel drums in the entry and submitted that metallic gas cylinders are also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he metallic gas cylinder cannot be brought under this entry or within the sweep of the words and the like used in entry 3(ii) of the KTEG Act. Elaborating his submissions he would also contend that under the KTEG Act, section 2(B), it has been specifically provided that when expression used in the KTEG Act has not been defined under the said Act, it would have the meaning assigned to them in the KST Act, 1957 and as such he contends that when the KST Act, 1957 provides for separate entry of metallic gas cylinders, same cannot be brought to tax under entry 66 read with entry 3(ii) of the notification issued under KTEG Act by bringing within the words and the like used in KTEG Act. In support of his submissions he would rely upon the decision of the honourable Supreme Court in Rainbow Steels Ltd. v. Commissioner of Sales Tax, Uttar Pradesh reported in [1981] 47 STC 298; AIR 1981 SC 2101 and the decision in Siddeshwari Cotton Mills (P.) Ltd. v. Union of India [1989] 75 STC 75; AIR 1989 SC 1019, to contend that principle of ejusdem generis has to be applied and when so applied the metallic gas cylinder would go outside the scope of the KTEG Act and thus not exigible to tax. He woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea. (3) Notwithstanding . . . any goods (i) in respect of . . . sub-section (I), or (ii) other than gutkha in respect . . . (Karnataka Act No. 22 of 1979). goods brought or caused to be brought into the local area during the year. (8) The tax shall be assessed, levied and collected in such manner and in such instalments, if any, as may be prescribed. (9) Subject to such rules as may be prescribed the assessing authority may assess a dealer for any year, as if, the aggregate value of the goods brought or caused to be brought into local area in such year had been received as in the previous year. The goods on which tax can be levied and collected are specified in the First Schedule and relevant entry for purposes of determining the issue in question would be entry 66 and the same reads as under: First Schedule [See Section 3(1)] Sl. No. Description of goods (1) (2) 1 to 65 . . . 66 Packing materials, namely: (i) . . . and the like; (ii) Tin plate containers (cans, tins and boxes), tin sheets, aluminiu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes specified in the corresponding entries in column (3) thereof: Sl. No. Commodity Rate of tax (1) (2) (3) 1 2 . . . 3 Packing materials namely: (i) . . . and the like; (ii) Tin plate containers (cans, tins and boxes), tin sheets, aluminium foil, aluminium tubes, collapsible tube, aluminium or steel drums, barrels and crates and the like; 2% By perusal of the above provisions it emanates that packing materials serve the purpose of keeping the materials in an organised manner, making easy for transportation from place to place and ensures safety of the goods when it is packed. The word pack as per the definition of Law Lexicon, Second Edition (Reprint) reads as under: 'Pack': to place together and prepare for transportation; to put goods in a box, or clothing in a bundle. The terms 'to pack' in its ordinary signification, especially when used in reference to carriage, means to place together and prepare for transportati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequent words may admit will be favoured. As a learned author puts it: '. . . if a class can be found, but the specific words exhaust the class, then rejection of the rule may be favoured because its adoption would make the general words unnecessary; if, however, the specific words do not exhaust the class, then adoption of the rule may be favoured because its rejection would make the specific words unnecessary.' (See: Construction of Statutes by E. A. Driedger, page 95 quoted by Francis Bennion in his Statutory Construction, pages 829 and 830.) Francis Bennion in his Statutory Construction observed: 'For the ejusdem generis principle to apply there must be a sufficient indication of a category that can properly be described as a class or genus, even though not specified as such in the enactment. Furthermore the genus must be narrower than the words it is said to regulate. The nature of the genus is gathered by implication from the express words which suggest it. . .' (page 830) 'It is necessary to be able to formulate the genus; for if it cannot be formulated it does not exist. Unless you can find a category , said Farwell L.J., there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expression 'or any other process' has to be understood. In the case of Rainbow Steels Ltd. v. Commissioner of Sales Tax, U.P. [1981] 47 STC 298 (SC); AIR 1981 SC 2101: U.P. Sales Tax Act (15 of 1948), Section 3A, Schedule I, clause (b) Notification No. ST. II. 4949/X-10(2)-74, dated May 30, 1975, entry 15 word 'old' occurring in entry 15 Interpretation of Principle 'noscitur a sociis' is applicable Thermal power plant which had been used previously but is in perfect running condition at time of sale Cannot be regarded as 'old machinery' within meaning of entry 15 Not exigible to sales tax. F.A.F.O. No. 39/77, dated April 18, 1979 (All), reversed. (Interpretation of statutes Meaning of words Maxim 'Noscitur a sociis'). Where the ther mal power plant which had been used previously but was in perfect running condition at the time of sale and was sold as such, it would not be deemed to be 'old machinery' within the meaning of entry 15 of the notification and therefore, would not be exigible to sales tax. The word 'old' occurs in entry 15 associated with the words 'discarded, unserviceable or obsolete' and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of the assessee that the metallic gas cylinders are manufactured out of steel plates being accepted, the natural corollary would be that it would be referable to the species of steel drums. It is to be seen, as to whether the further words and the like used in entry 3(ii) would also take within its sweep the metallic gas cylinders. The words and the like were the subject-matter of consideration by a coordinate Bench of this court in the case of Maharashtra Hybrid Seeds Company Limited v. State of Karnataka [2000] 119 STC 112, wherein it is held as follows (at page 116 of STC): 12. In this case, we are concerned with the packing materials made out of jute and not any other material. Under clause (v) the packing materials made out of jute have been brought to tax. There are three items in entry (v): (a) gunny bags, (b) bardan (including batars) and (c) hessian cloth. Counsel for the parties agreed that gunny bags and bardans (including batars) are made out of jute. 'Hessian' as per Shorter Oxford Dictionary means 'strong coarse cloth of hemp or jute; sack-cloth'. In the same dictionary 'hemp' means 'plant from which coarse fibres are o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no class can be found, the principle of ejusdem generis would not be attracted and such broad construction as the subsequent words may admit will be favoured. Thus, the metallic gas cylinders get fitted into entry 66 of the First Schedule read with entry 3(ii) of notification dated September 23, 1998 as packing material. The courts in giving a meaning to the item contained in the Schedule should attempt to give the meaning which the makers of the Schedule intended by grouping various articles in a particular group considering them in a generic sense and a combined reading of words packing material and the words used in entry 66 of the First Schedule read with entry 3(ii) of notification dated September 23, 1998 would go to show that the Legislature intended to tax steel drums and the like which would come within the meaning of packing materials. The liquefied petroleum gas cannot be packed in any other manner other than a cylinder. Thus, the intention of the Legislature is to tax metallic gas cylinder which cylinder is manufactured out of steel plates and entry 66 of the First Schedule read with entry 3(ii) of notification dated September 23, 1998 would encompass the descr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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