TMI Blog2014 (8) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... -ray films" in the said entry. Words "X-ray films" would normally be covered by the words "films of all kinds" and as such, there was no need to specifically mention "X-ray films" again in the said entry. The expression "films of all kinds" in its sweep would normally take into account any kind of film including "X-ray film". Therefore, it is clear that the word "including" has not been used as an enlarging or extensive word, for it could not have been the intention of the Legislature to include something which in normal course would already stand included. The contention of the respondent authorities that the said word "including" has been used as an abundant caution to emphasis the fact that "X-ray films" have been included to clarify that nothing should be left out from the all inclusive and comprehensive character of the expression "films of all kinds", stands repelled in view of the decision of the Supreme Court in South Gujarat Roofing Tiles Manufacturers Association [1976 (10) TMI 147 - SUPREME COURT OF INDIA]. By using the word "including" in entry 28, the Legislature did not wish to include an article which would normally be covered by the general terms "films of all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing entry tax at four per cent under the Assam Entry Tax Act, 2008. The impugned clarificatory order dated December 19, 2009 and the show cause and recovery notices revolve round the interpretation of entry No. 28 of the Schedule attached to the Assam Entry Tax Act, 2008, which is taxable at four per cent, which reads as films of all kinds including X-ray films . In W.P. (C) No. 839 of 2010, the petitioner therein had sought for a clarification from the Commissioner of Taxes as to whether the items, polyester film, metallised pet, metallised BOPP, aluminium foil film and poly film which the petitioner firm had been importing to Assam would be taxable under the Assam Entry Tax Act, 2008 under entry 28. The Commissioner of Taxes by the impugned clarificatory order dated December 19, 2009 held that the aforesaid items are liable to be taxed at four per cent as they are covered by entry No. 28. The petitioner in the said W.P. (C) No. 839 of 2010 has challenged the said clarificatory order dated December 19, 2009. Based on the aforesaid clarificatory order dated December 19, 2009, the Superintendent of Taxes conducted search and seizure in the business premises of various firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs clarify that metallised BOPP means metallised biaxially oriented polypropylene web (BOPP) which is used for packaging and food contact applications. Aluminium foil is used for packaging purpose as well as in pharmaceuticals and poly films are ideal for food packaging. They have other applications in construction and agricultural uses. The aforesaid articles, for their various uses, are sometimes printed and in order to increase the strength, are toughened by multi-layering and the aforesaid items cannot be considered as films in any sense of the term. It has also been stated that except aluminium foil, the aforesaid products are cleared under the excise laws as different items and are not included under films . According to the petitioners X-ray films are taxable under the Excise laws under Chapter 370110 and Metallised PET (BOPET) are taxable under Tariff heading 39206220, PE (Poly)-Plain under 39201012, Metallised BOPP under 39202020, Aluminium foil under 76071991 and BOMPET under 39219093. The petitioners contend that even if these materials are treated as films , the use of the word including in entry 28 makes it clear that it is to take within its sweep only such ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red film even if does not bear any common element with X-ray film is liable to be taxed. According to them it is merely clarificatory and does not restrict the scope of the entry. On the other hand, the petitioners have claimed that the expression films of all kinds has been qualified by the use of the words including X-ray films to mean only those films which are in the nature of X-ray film and does not contemplate any other or all kinds of films. As we proceed to examine the rival contentions of the parties, as to whether the meaning of the word films of all kinds has been expanded or restricted by the use of word including , we may note the meaning of film first. In the Assam Entry Tax Act, 2008, the word film has not been defined. Therefore, we may try to understand the meaning of the word film by referring to the dictionary meaning as understood in the common parlance as held by the Supreme Court in S. Samuel, M.D., Harrisons Malayalam v. Union of India [2004] 134 STC 610 (SC); [2004] 1 SCC 256, that when a word is not defined in the Act itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uously covered by the said entry. However, as regards whether these materials are also known as films in popular parlance, there is no such finding by the authority in the impugned clarificatory order dated December 19, 2009. We now proceed to consider as to the effect of the use of word including after the words films of all kinds in the aforesaid entry No. 28. In N.D.P. Namboodripad v. Union of India [2007] 4 SCC 502, the Supreme Court held that: 18. The word 'includes' has different meanings in different contexts. Standard dictionaries assign more than one meaning to the word 'include'. Webster's Dictionary defines the word 'include' as synonymous with 'comprise' or 'contain'. Illustrated Oxford Dictionary defines the word 'include' as: (i) comprise or reckon in as a part of a whole; (ii) treat or regard as so included. Collins Dictionary of English Language defines the word 'includes' as: (i) to have as contents or part of the contents; be made up of or contain; (ii) to add as part of something else; put in as part of a set, group or a category; (iii) to contain as a secondary or minor ingredient or ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes of the Act, must invariably be attached to these words or expressions.' 16. Dilworth [1899] AC 99 and few other decisions came up for consideration in Peerless General Finance and Investment Co. Ltd. [1987] 1 SCC 424 and this court summarised the legal position that (Peerless case [1987] 1 SCC 424, SCC pages 449-50, para 32) inclusive definition by the Legislature is used: '32. . . . (1) to enlarge the meaning of words or phrases so as to take in the ordinary, popular and natural sense of the words and also the sense which the statute wishes to attribute to it; (2) to include meanings about which there might be some dispute; or (3) to bring under one nomenclature all transactions possessing certain similar features but going under different names.' 17. It goes without saying that interpretation of a word or expression must depend on the text and the context. The resort to the word 'includes' by the Legislature often shows the intention of the Legislature that it wanted to give extensive and enlarged meaning to such expression. Sometimes, however, the context may suggest that word 'includes' may have been designed to mean 'means' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s whether things like refractories or electrical or textile accessories would pass under the description pottery as that word is used in common parlance, but the Explanation also mentions crockery and toys regarding which there could be hardly any doubt. The inclusion in the list of objects which are wellrecognised articles of pottery makes it plain that the Explanation was added to the entry not by way of abundant caution. 5. The contention of Mr. Tarkunde for the appellants is that the articles mentioned in the Explanation were intended to be exhaustive of the objects covered by entry 22. According to Mr. Tarkunde if the Legislature wanted to bring within the entry all possible articles of pottery then there was hardly any point in mentioning only a few of them by way of Explanation. To this Mr. Patel's reply is that it is wellknown that where the Legislature wants to exhaust the significance of the term defined, it uses the word 'means' or the expression 'means and includes', and that if the intention was to make the list exhaustive, the Legislature would not have used the word 'includes' only. We do not think there could be any inflexible rule tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s evident that the Legislature intended to restrict the scope of the expression films of all kinds by adding these words including X-ray films . We have already seen that the word includes apart from its use an enlargement word, can be understood as means and also means and includes . However, if the expression films of all kinds is to mean only X-ray films , it will reduce all the other words in the entry, (except X-ray films ) redundant. Therefore, it cannot be understood to mean only X-ray films . As held in Peerless General Finance and Investment Co. Ltd. [1987] 61 Comp Cas 663 (SC); [1987] 1 SCC 424, it can be used to include meanings about which there might be some dispute or to bring under one nomenclature all transactions possessing certain similar features but going under different names. The word including could indicate the restrictive meaning of the expression films of all kinds to confine to such materials which possess certain similar characteristics to the included material X-ray films . The ambiguity of the all sweeping words films of all kinds could be clarified by the subsequent words. We have already observed that film can mean different thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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