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2017 (3) TMI 535 - ORISSA HIGH COURT

2017 (3) TMI 535 - ORISSA HIGH COURT - TMI - Works Contract - the supply of machine crushed track ballast would come within the fold of works contract or not? - deduction of 85% towards labour and service charges - Whether the ballast or boulder or chips is exigible to tax at the rate of 4% or 12% of the taxable list? - Held that: - although the ballasts supplied at Serial No.1 are also required to be loaded to the Railway wagons. It is needless to opine that the loading of ballasts supplied is .....

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tated above “mineral” or not? - Held that: - the word “mineral” is a word of common parlance used in various way but cannot be used in narrow sense. Similarly, it appears from the aforesaid decision that entries in the schedules of sales tax and excise statutes draws colour from the other words therein because of the principle of noscitur a sociis. Thus depending on the aforesaid doctrine in the present context, we have to see whether the ballast is a mineral even if it is not to be defined as m .....

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ng but “mineral” under Sales Tax Act exigible to tax at the rate of 4% as per Entry 117 of the taxable list. - Whether such fresh plea can be raised in the second appeal without the same being raised in the forums below? - applicable rate of tax - Held that: - there it is question of law as interpreted by parties - It is trite in law that the question of law can be raised at any stage. Moreover, the contention of the State that such plea of exigibility to tax at the rate of 4% of the taxable .....

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s.Damodar Pati, S.K.Mishra and P.Panigrahi, M/s. Damodar Pati, S.K.Mishra and S.N.Sharma For Opp. Parties : M/s.Damodar Pati, S.K.Mishra and S.N.Mishra, M/s.A.K.Roy and C.R.Das, M/s.Satyajit Nanda and G.R.Verma JUDGMENT Dr. D.P.Choudhury, J. Challenge has been made in all these revisions to the order of the Orissa Sales Tax Tribunal (hereinafter called the Tribunal ) for reversing the concurrent order passed by the First Appellate Authority and the Assessing Officer under the provision of Sectio .....

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both the sides of railway track in different locations as per the tender call notice. The tender schedule specifies loading of ballast into any type of railway wagon/hopper with contractor s own arrangements including all lead lift crossing of railway line as per the direction of the Engineer-in-charge of the work. 3. During the assessment year 2001-2002, the Assessing Officer demanded under Section 12(4) of the Act for ₹ 36,15,448/- on 31.3.2003. The Assessing Officer has treated the ent .....

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rate of 8% as tax under works contract. The First Appellate Authority disposed of the First Appeal keeping in view the order of this Court passed in P.K.Satapathy -V- State of Orissa, reported in (1999) 116 STC 494 (Ori) with the observation that the scope of contract, being supply of machine crushed ballasts, would be liable to be exigible to tax at the rate of 12%. So, the First Appellate Authority confirmed the order of the Assessing Officer. 4. Against the order passed by the First Appellate .....

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he Railway falls within the ambit of mineral for which it is exigible to tax at the rate of 4% as per Entry 117 of the taxable list by not agreeing to make same exigible at the rate of 12% under Entry 189 of the taxable list. Challenging such order of the Tribunal, the State-petitioner has preferred revisions on various grounds. 5. Likewise in STREV Nos.41, 98, 131 and 132 of 2011 and STREV Nos.49 and 50 of 2013, opposite parties-assessees in different years of assessment have supplied ballasts .....

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ushing the same, made boulders and chips and accordingly they are engaged in selling those products to different buyers. But the Assessing Authority demanded sales tax by taking such materials exigible to tax at the rate of 12% of taxable list and the First Appellate Authority also confirmed such order of the Assessing Authority. Again on the intervention in the Second Appeals, the Tribunal decided said material as minor mineral , being exigible to tax at the rate of 4% in the taxable list. 7. S .....

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s from the gross receipts because without analyzing the convenants of contracts, the Tribunal jumped to the conclusion on the basis of schedule of rates and fact that the loading charges of supplied ballasts into Railway wagons would be deducted from assessment under the Act as the same is purely labour work. The Tribunal ought to have considered all clauses of the contract. The Tribunal, being the final fact finding authority, should have taken into consideration the relevant statutory provisio .....

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because the Tribunal has transgressed its jurisdiction and authority by deciding the facts which has never before any of the authorities below raised. The Tribunal should not have considered such plea of the opposite parties as the Department was not given any chance to lead evidence in the forums. Thus, the Tribunal has violated the principles of natural justice by deciding such issue. According to him, when the intention of both the parties was to treat the goods in question as ballast qua ba .....

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ballasts are minerals. He further submitted that the Tribunal went wrong to conclude that ballast obtained from spalls would be minerals inasmuch as the basis of such conclusion being the definitions contained in the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter called as the Act, 1957 ) and the Orissa Minor Mineral Concession Rules, 2004 (in short the Rules, 2004 ). The Tribunal erred in law by taking the aid of definition contained in another statute which has no nexu .....

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The Tribunal has also acted with material irregularity by coming to the wrong conclusion without proper independent application of mind for which the same should be quashed and the order passed by the First Appellate Authority and Assessing Officer should be restored. 10. Per contra, Mr.Damodar Pati, learned counsel for the opposite party submitted that the order of the Tribunal is legal and correct because the agreement between the parties is to supply and delivery in stacks of machine crushed .....

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cally exigible under the Entry 117 of taxable list. As the ballast is deducible like boulder and other material from the quarry by using the dynamite and specifically processed through machine or by manual work, the same is rightly observed by the Tribunal to be classified as minerals being exigible to tax at the rate of 4% of taxable list. 11. Mr.Pati, learned counsel for the opposite parties submitted that the Tribunal, in its Full Bench, has considered that the opposite parties have supplied .....

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ocess of nature and it has a characterstic crystal structure, chemicals composition and rational or composition. 12. Mr.Pati, learned counsel for the opposite party further contended that since ballasts or boulder or chips are prepared from quarry and ballasts being crushed to prepare size ballast and then supplies to Railways, the same being minor mineral as defined in Section 2(jj) of the Mines Act, 1952 read with Section 3(a) of the Act, 1957, the Tribunal justified in charging the ballast or .....

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that the arguments advanced by the opposite party for the first time as to the plea that the ballast as mineral is a misnomer and there is no bar for the State to produce evidence contrary to the plea taken by the opposite parties. On the other hand, whether ballast or its different size is exigible to 12% tax or 4% being a question of law can be raised at any stage before any forum. Be that as it may, according to the learned counsel for the opposite parties that the contention of the learned c .....

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formulated but the same is being formulated now for discussion as the revisions can be allowed on the question of law raised. So, in these revisions, the questions of law are formulated as under: (1) Whether the ballast or boulder or chips is exigible to tax at the rate of 4% or 12% of the taxable list? (2) Whether such fresh plea can be raised in the second appeal without the same being raised in the forums below. 14. DISCUSSIONS Point No.(1) It is not in dispute that the opposite party in STRE .....

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on including crossing of Railway lines, if required and royalty, octroi, sales taxes, cess charges and any taxes imposed by the Central/State Government and local bodies on one lakh Cum of loading of ballast supplied into any type of Railway wagons/hoppers with contractor s own loading arrangements including all lead lift cross of Railway lines. Similarly, it is not in dispute that the opposite party in other revisions have been dealing with ballast or boulder of chips by selling the same to Rai .....

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en any charge/responsibility of spreading machine-crushed track ballast in any place under the S.E.Railway. Accordingly, the Assessing Officer held that the delivery of ballast is purely a sale and not a works contract as pleaded by the petitioner. The Assessing Officer has also found that there was no evidence adduced by the opposite parties to show that there was a express stipulation between the parties that freight and other charges were to be borne by the purchaser and since the opposite pa .....

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.101/2011, after hearing both parties, came to the conclusion that the contract between the parties should be interpreted whether it is a sale of good or for work or labour basically. According to him, to constitute sale, there must be an agreement express or implied relating to sale of goods and completion of the agreement by passing of title in the very goods contracted to be sold. He has referred to the tender schedule, which is reproduced as under: SOUTH EASTERN RAILWAY TENDER SCHEDULE SCHED .....

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Railway lines if required and royalty, actroi, sales taxes, cess charges and any other taxes imposed by Central/State Govt. and local bodies including all other incidental charges with all lead, lift, etc. complete as per the directions of the Engineer-incharge of the work. 1,00,000 Cum Rs567/- (Rupees five hundred & sixty seven only) per cum. Loading of ballast, supplied vide Srl. No.1 above into any type of Railway Wagons/hoppers with contractor/s own loading arrangements including all lea .....

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e of acceptance letter as per the under mentioned programme. 2. The contractor will be required to strictly adhered to QUARTERLY SCHEDULE OF SUPPLY failing which the penalty as per clause-09 of Special condition for supply and loading of ballast Annexure-IV shall be recovered. The QUARTERLY SCHEDULE OF SUPPLY is indicated below:- 1st Quarter 10,000 cum 5th quarter 15,000 cum 2nd Quarter 10,000 cum 6th quarter 15,000 cum 3rd Quarter 15,000 cum 7th quarter 15,000 cum 4th Quarter 15,000 cum 8th qua .....

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that the contract is for supply of ballast and amount received is to be taxed at rate of 12% but not to be treated as works contract for which he entirely agreed with the finding of the learned Assessing Officer. In other revision cases, the First Appellate Authority has confirmed the order of the Assessing Officer as ballast, boulder and chips are exigible to the tax at the rate of 12% of the taxable list. 18. On perusal of the order of the Second Appeal, it appears that the Full Bench of the .....

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e Tribunal went on discussion whether the ballast is a mineral exigible to sales tax at the rate of 4% of the taxable list. The Tribunal has discussed about the dictionary meaning of mineral and has also considered the definition of minor mineral under the Act, 1957 and Rules made thereunder. According to Section 2(jj) of the Mines Act, 1952, mineral means all substance which can be obtained from earth by mining, digging, drilling, dredging, laying, draulicing, quarrying or by any other operatio .....

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may by notification, declare the same to be a minor mineral. 19. The Tribunal has opined that according to Orissa Minor Minerals Concession Rules, 2004 (in short the Rules, 2004 ) which provides for granting quarry lease by the Government for extraction, collection or removal of minor minerals. The learned Assessing Officer in his order categorically has mentioned that appellant took quarry located at Basupali on lease from the Tahasildar, Balangir on payment of royalty and extracted spalls from .....

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the appeal in part by directing the learned Assessing Officer to reassess the sales tax liability accordingly after deducting the amount received by the opposite parties towards loading charges from the payment received by it and to refund rest of the amount according to the provisions of law. 20. In other revisions, the Tribunal has simply arrayed the boulder, ballast, stone chips as minor mineral under the Act, 1957 and Rules made thereunder. 21. In the case of Union of India -V- The Central I .....

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C 364, has observed as follows: The primary difference between a contact for work or service and a contract for sale of goods is that in the former there is in the person performing work or rendering service no property in the thing produced as a whole notwithstanding that a part or ever the whole of the materials used by him may have been his property. In the case of a contract for sale, there is in the first instance a chattel which belongs exclusively to a party and under the contract propert .....

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for sale or a contract for work and labour. They merely focus on one or the other aspect of the transaction and afford some guidance in determining the question. 24. From a perusal of the aforesaid decisions with due regard, it appears that whether a contract is one for the sale of goods or for executing works or rendering services are all questions of fact which depend on the terms of the contract including the nature of work discharging. Moreover, in case of contract for works or services, th .....

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ade between the parties. 25. In the aforesaid paragraphs, the tender schedule clearly shows that for supply and delivery of stacks of machine crushed track ballast and laying the same into both side of track in different locations at Balangir Depot including all costs of materials, loading, unloading, handling transportation including crossing of Railway lines if required and royalty, octroi, sales taxes, cess charges and any other taxes imposed by Central/State Government and local bodies inclu .....

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y defensible as to all charges as per Serial No.1, i.e, ₹ 567/- per Cum for supply and delivery and for loading and unloading of ballasts has different charges and the same is not included with the rate as specified in Serial No.1 although the ballasts supplied at Serial No.1 are also required to be loaded to the Railway wagons. It is needless to opine that the loading of ballasts supplied is a labour charge and the same cannot be termed as a sale after going through the contents of the de .....

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s amended vide Finance Department Notification dated 31.3.2001 is as follows: Under the Orissa Sales Tax (OST) Act, 1947 OST Schedule (Ad amended vide Finance Department Notification dated 31.3.2001) Sl. No. Description of Goods Rate of tax 1 2 3 117 Ores and minerals 4% 189 All other goods 12% 27. It appears from the aforesaid table that ores and minerals as per Entry No.117 is exigible to 4% tax whereas all other goods which are not mentioned in the schedule is exigible to 12% of tax. Now, bot .....

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le to tax at the rate of 4% of taxable list. 28. In the Assessment Order, the learned Assessing Officer admitted that the present opposite party in STREV No.101 of 2011 has taken a quarry located at Basupali on lease from the Tahasildar, Balangir on payment of royalty and extracted the spalls from the quarry and then crushed same into ballasts as per the specification and then supplied to the Railways. Of course, the learned Assessing Officer has mentioned that except payment of royalty, the bal .....

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ly in other cases, boulder, chips having not suffered from payment of sales tax must be at the rate of 12% of taxable list under the Act as observed by Assessing Officer is not correct because they are made extracted from quarry even if purchased from M/s.OCL. 30. The First Appellate Authority, without going to the facts but by only relying upon the decisions of the Courts, agreed with the view of the learned Assessing Officer that same are to be taxed at the rate of 12% under the Act. Thus, the .....

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extracted from quarry. It is a fact that the ballasts, boulders and chips are to be interpreted under the Act but by not taking aid of any other Act. The ballasts, boulders and chips have not been defined under the Act. The question of taking aid of other Act will only arise if there is no use of the same on common parlance. 31. It is reported in the case of Banarasi Dass Chadha and others -V- L.T. Governor, Delhi Administration and others; AIR 1978 SC 1587 where Their Lordships at paragraphs 4 .....

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e) of the Act includes 'ordinary clay' and ordinary sand', there is no reason why earth used for the purpose of making bricks should not be comprehended within the meaning of the word "any other mineral" which may be declared as a "minor mineral" by the Government. The word "mineral" is not a term of art. It is a word of common parlance, capable of a multiplicity of meaning depending upon the context. For example the word is occasionally used in a very w .....

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39;It was urged that the sand and gravel are deposited on the surface of the land and not under the surface of the soil and therefore they cannot be called minerals and equally so, any operation by which they are collected or gathered cannot properly be called a mining operation. It is in the first place wrong to assume that mines and minerals must always be sub-soil and that there can be no minerals on the surface of the earth. Such an assumption is contrary to informed experience. In any case, .....

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"Extracting" in turn means drawing out or obtaining. A tooth is 'extracted' as much as the fruit juice and as much as a mineral. Only that the effort varies from tooth to tooth, from fruit to fruit and from mineral to mineral". 5. We may also refer to Northern Pacific Railway Company v. John A. Sedrbarg; (1902) 47 Law Ed 575) where the Supreme Court of United States observed as follows (at page 581): "The word 'mineral' is used in so many senses, dependant up .....

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o limit its application as to destroy at once half the value of the exception. Equally subversive of the grant would be the definition of minerals found in the Century Dictionary: as "any constituent of the earth's crust" ; and that of Beinbridge on Mines: "All the Sub- stances that now form, or which once formed, a part of the solid body of the earth". Nor do we approximate much more closely to the meaning of the word by treating minerals as substances which are mined as .....

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99) 6. The Supreme Court of United States also referred to several English cases where stone for road making or paving was held to be 'minerals' as also granite, sandstone, flint stone, gravel, marble, fire clay, brick clay, and the like. It is clear that the word 'mineral' has no fixed but a contextual connotation. 7.xxx xxx xxx That is why we say the word mineral has no definite meaning but has a variety of meanings, depending on the context of its use. In the context of the Mi .....

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ursue the matter further except to say that this was the view taken in Laddu Mal v. State of Bihar; AIR 1965 PAT 491, Amar Singh Modilal v. State of Haryana; AIR 1972 PUNJ & HAR 356 (FB) and Sharma & Co. v. State of U.P.; AIR 1975 ALL 386. Xxx xxx xxx xxx 32. With due regard to the aforesaid decision, it appears that the mineral not necessary to be viewed with reference to the provisions of the Act but it depends on the use of the same on different context. Although the minerals under th .....

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Satyanand Saraswati; AIR 1971 SC 1569 has held that granite is a mineral. The Court quoted Habbury Laws of England, thus (page 1575): '"The test of what is a mineral is what, at the date of instrument in question, the word meant in the vernacular of the mining world, the commercial world, and among land owners, and in case of conflict this meaning must prevail over the purely scientific meaning." No material was laid by the assessee before the Tribunal to suggest that in the expor .....

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ed in a narrow sense to mean no more than precious metals like gold and silver. Again, the word 'minerals' is often used to indicate substances obtained from underneath the surface of the earth by digging or quarrying. It is at this stage appropriate to refer to the argument of learned counsel for the assessee based upon the doctrine of noscitur a sociis which as he submitted, has been explained by this Court in Pardeep Aggarbatti -V- State of State of Punjab & Ors. (1997) 107 STC 56 .....

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from the aforesaid decision that entries in the schedules of sales tax and excise statutes draws colour from the other words therein because of the principle of noscitur a sociis. Thus depending on the aforesaid doctrine in the present context, we have to see whether the ballast is a mineral even if it is not to be defined as mineral under the Act, 1957 or Rules made thereunder. Since the facts are clear in this case to show that the ballast has been prepared from the spalls which are extracted .....

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d the meaning of Common parlance in the following manner: 1. 'Dryer felts' are 'textiles' within the meaning of that expression in Item 30 of Schedule 'B' to the Punjab General Sales Tax Act, 1948. 2. In a taxing statute words of everyday use must be construed not in their scientific or technical sense but as understood in common parlance, meaning "that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it." .....

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Nut and Choco Co. Ltd V. The Kind (1951) 1 DLH 385 and 200 Chest of Tec (1824) 9 Wheaton (U.S.) 430 at 438; quoted with approval. Where a word has a scientific or technical meaning and also an ordinary meaning according to common parlance, it is in the latter sense that in a taxing statute the word must be held to have been used, unless contrary intention us clearly expressed by the Legislature. The reason is that the Legislature does not suppose our merchants to be 'naturalists, or geologis .....

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' which means 'to weave' and it means woven fabric. When yarn, whether cotton, silk. woollen rayon, nylon or of any other description or made out of any other material is woven into a fabric, what comes into being is a 'textile' and is known as such. Whatever be the mode of weaving employed, woven fabric would be 'textile'. What is necessary is no more than meaning of yarn and weaving would mean binding or putting together by some process so as to form a fabric. A tex .....

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this sense. 35. With due respect to the aforesaid decision, it is clearly observed that whether the word has a scientific and technical meaning and also it is in the later sense that in a taxing statute, the word must be held to have been used unless contrary intention is expressed by the legislature. Similarly, it is reported in the case of Commissioner of Central Excise, New Delhi -V- Connaught Plaza Restaurant (P) Ltd; 2012 (286) E.L.T. 321 (S.C.) where a similar question arose and Their Lord .....

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ture from the language used by it, keeping always in mind, that the language is at best an imperfect instrument for the expression of actual human thoughts. 19. A classic example on the concept of common parlance is the decision of the Exchequer Court of Canada in The King Vs. Planter Nut and Chocolate Company Ltd; (1951) CLR (Ex. Court) 122. The question involved in the said decision was whether salted peanuts and cashew nuts could be considered to be "fruit" or "vegetable" .....

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ding to their popular sense. Xx xx xx xx 31. Therefore, what flows from a reading of the afore- mentioned decisions is that in the absence of a statutory definition in precise terms; words, entries and items in taxing statutes must be construed in terms of their commercial or trade understanding, or according to their popular meaning. In other words they have to be constructed in the sense that the people conversant with the subject-matter of the statute, would attribute to it. Resort to rigid i .....

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on, Their Lordships have also relied on the decisions in the case of Ramavatar Budhaiprasad Etc. Vs. Assistant Sales Tax Officer, Aloka (1962) 1 SCR 279, Commissioner of Sales Tax, Madhya Pradesh Vs. Jaswant Singh Charan Singh; (1967) 2 SCR 720, Dunlop India Ltd. Vs. Union of India & Ors; (1976) 2 SCC 241, Shri Bharuch Coconut Trading Co. and Ors. Vs. Municipal Corporation of the City of Ahmedabad & Ors: 1992 Suppl. (1) SCC 298, Indian Aluminium Cables Ltd. Vs. Union of India & Ors; .....

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5) Suppl. (3) SCC 1. 37. After analyzing all the above decisions, Their Lordships have made it clear as to what is Common Parlance Test . Thus, in the absence of a statutory definition in precise terms; words, entries and items in taxing statutes must be construed in terms of their commercial or trade understanding, or according to their popular meaning. In other words they have to be constructed in the sense that the people conversant with the subject-matter of the statute, would attribute to i .....

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s (Supra). When the ballasts, boulders and chips have got common parlance with the minerals as available in Entry 117 even without taking the aid of the Act, 1957 or Rules made thereunder, the facts remain that the quarry leased out to opposite party in STREV No.101 of 2011 or the chips or boulders purchased by other opposite parties from the M/s.OCL who have also got the same from quarry by taking the mining of the same on common parlance is nothing but mineral . It is, therefore, the opinion o .....

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The Point No.(1) is answered accordingly. 39. POINT No.(2) Section 23(3) of the Act states as follows: 23.(3)(a) Any dealer or as the case may be, the State Government dissatisfied with an appellate order made under sub-section (2) may within sixty days from the date of receipt of such order prefer an appeal in the prescribed manner to the Tribunal against such order. Provided that an appeal under this clause may be admitted after the aforesaid period of limitation if the Tribunal is satisfied .....

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re an appeal presented within time under clause (a) (c) While disposing of an appeal under this sub-section the Tribunal shall have the same powers subject to the same conditions as are enumerated in sub-section (2) and any order passed under this sub-section shall, except as otherwise provided in section 24 be final. 40. Section 23 of the Act speaks about appeal and revision and there is no bar for the party to file cross-objection. In the revision petitions, the State-petitioner admitted that .....

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