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TMI Blog2023 (4) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... x Officer, Bhubaneswar-I Circle, Bhubaneswar vide Order dated 16.06.2011 has been reduced to NIL. Facts of the case: 2. The opposite party-dealer is engaged in manufacture and sale of melamine utensils and brings raw materials from outside the State and sells finished items within the State of Odisha. Since there was nonparticipation of the opposite party-dealer, notwithstanding response to the notice in Form E32 prescribed vide Rule 15D of the Odisha Entry Tax Rules, 1999 (referred to as "OET Rules") for assessment under Section 10 of the Odisha Entry Tax Act, 1999 (for brevity hereinafter referred to as "OET Act") against which adjournments were granted, the Sales Tax Officer, Bhubaneswar-I Circle, Bhubaneswar ("Assessing Authority", for short) proceeded to conclude the proceeding ex parte whereby entry tax has been levied on the sale of finished goods as per Section 26 taking into consideration the figures disclosed in the returns and the turnover suppressed as alleged in the Tax Evasion Report submitted by the Deputy Commissioner of Sales Tax, Vigilance, Bhubaneswar Division, Bhubaneswar. Accordingly, demand of tax to the tune of Rs.1,12,503/- was raised. Besides tax, penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority, ought to have examined whether "melamine utensils" fit into any of the items enumerated in the said entries bearing in mind the wider meaning of such items instead of repelling the contention of the learned Standing Counsel that the Revenue had taken different stand at different stage. Sri Mishra in furtherance to his argument, urged that though learned Tribunal referred to words "kitchen ware/utensils" accompanied by "rice cooker, pressure cooker" in Entry 87 of Part-I of Schedule, could have treated the same to be genus and "melamine utensils" species on the principle of noscitur a socii. However, misplacing the ratio of the decision of this Court rendered in the case of Hindustan Lever Ltd. Vrs. Sales Tax Officer, W.P.(C) No.11400 of 2005, vide Order dated 21st January, 2010, the learned Tribunal fell in grave error in affirming the Appellate Order. Sri Sunil Mishra having said that classification of commodity and application of rate of tax being question(s) of law can be raised at any stage, legal position of which is no more res integra vide State of Odisha Vrs. DK Construction, 2017 (I) ILR-CUT 615 = (2017) 100 VST 24 (Ori), asserted that the learned Odisha Sales Tax T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra is accepted, then the Assessing Authority would levy tax @ 2% treating "melamine utensils" to fall within sweep of Entry No.35 of Part-II of Schedule. Such a course is impermissible in law inasmuch as the Court may not be competent to create third case for the party. 4.2. Amplifying his argument, Sri Rudra Prasad Kar vehemently urged that no fault can be attributable to the learned Tribunal as it has correctly affirmed the view of the Appellate Authority and said Tribunal is right in saying that the Revenue has taken different stance at different times. The learned Standing Counsel appearing in the second appeal attempted to confuse and misguide the Tribunal. The Standing Counsel sought to argue the point which was never before the Tribunal by way of grounds of appeal. Copy of grounds of second appeal as filed by the Commissioner of Sales Tax before the Sales Tax Tribunal reads thus: "1. That the order of 1st Appellate Authority, i.e., learned DCST appears to be unjust and improper. 2. That we should always stick to the generic name of the articles, because any name can be allotted to any goods. So goods are usually considered from commercial parlance. The name of a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntries that "melamine utensils" can at no stretch of imagination be stated to have fallen within the ambit of Entry Nos.76, 79 and 91 of Part-I. In Commissioner, Commercial Taxes Vrs. Om House Hold Appliances Pvt. Ltd., 2018 SCC OnLine All 3161 the Allahabad High Court while deciding whether "melamine tray" is crockery, observed with regard to "melamine" as follows: "15. So far as melamine is concerned it is a white crystalline compound made by heating cyanamide and used in making plastics. 16. Further a plastic used chiefly for laminated coatings, made by copolymerizing melamine with formaldehyde. 17. From the bare perusal of the aforesaid details and description of crockery and melamine admittedly prima facie it appears that both the items are different altogether as well as their use is entirely different by their user." 7. Considering the term "melamine" in the above perspective, there is no ambiguity in mind that "melamine" being "used in making plastics", it itself cannot be said to be "plastic". Therefore, considering that "melamine" may be one of the ingredients for manufacture of "plastic", it cannot be said to be "plastic" simpliciter and thereby melamine utensi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor was such an appeal maintainable before the Tribunal on a point which was not the subject-matter of the appeal before the first appellate authority. Furthermore, when the grounds of second appeal as agitated by the Revenue (extracted in the foregoing paragraphs) do not show that at any point of time such a ground was taken. It has been laid down in State of Orissa Vrs. Lakhoo Varjang, (1961) 12 STC 162 (Ori) that the appellate jurisdiction of a Tribunal is only against the appellate order of the first appellate authority and not against the original order of assessment passed by the Sales Tax Officer when the first appellate authority did not go into the question of liability of the assessee to be assessed because that question was never raised before him, the Tribunal does not inhere jurisdiction to allow additional grounds to be taken or evidence to be led in respect of a matter that had been concluded between the parties even at the first appellate stage. 8.3. The word "appliances" being word of day-to-day use, its popular or commercial parlance meaning has to be adopted as against its scientific or technical meaning because of the well-settled principle of interpretation th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r entries available under the statute." 9.1. However, the reason best known to the counsel appearing for the Revenue before the Tribunal at the time of hearing changed his stand to Entry 35 of Part-II and Entry 87 of Part-I of Schedule to the OET Act. Nevertheless, the Revenue again changed its contention before this Court while filing revision petition by posing question of law vide Paragraph 20. To reiterate it may be necessary to quote the said question: "Whether on the facts and in the circumstances of the case 'melamine utensils, i.e., plates, bowls, spoons and dinner sets, etc. are exigible to tax @ 1% under Part-I of Schedule to the OET Act and thereby the Tribunal having not decided the issue in proper perspective, fell in error?" 9.2. Under such context, the Revenue has called upon this Court to decide whether "plates, bowls, spoons and dinner sets" would fall within the expression "rice cooker, pressure cooker and kitchen ware/utensils". It is commonly known that plates, bowls and dinner sets do not answer the description like "rice cooker" and "pressure cooker". The learned Additional Standing Counsel pressed into service the meaning of the term "utensils" as propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax at the reduced rate of tax." 9.3. The entry as reflected in the statute of Karnataka State does not seem to be akin to the items under consideration in Entry 87 of Part-I of Schedule to the OET Act as the Karnataka High Court was in seisin of the entry "all utensils including pressure cookers and pans other than utensils made up of precious metals". In the said Judgment the said Court held that: "If we go by the dictionary meaning, a tool or an implement serving a useful purpose, especially for domestic, that is used in a kitchen is a utensil. All utensils are not vessels. But all vessels are utensils However, the word "utensil" include a vessel and all other tools and implements which are of use for domestic purpose and in a kitchen. If the legislative intent is kept in mind and the meaning of the word "utensil" as gathered from the aforesaid definition is taken into consideration and the way the entry is worded namely "all utensils" "including" and when what is excluded from this definition is expressly stated it is clear that a stove whether it is a LPG stove or kerosene wick stove would fall within the word "all utensils" and falls within Entry No. 5 of third schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y its associated words. The Latin word 'sociis' means 'society'. In other words, a thing is known by its companions. It is an extended and attenuated version of the ejusdem generis rule. The words are to be understood to have been used in their cognate sense. Therefore, when general words are juxtaposed with specific words, general words cannot be read in isolation. Their colour and their contents are to be derived from their context. But, like all other linguistic canons of construction, the ejusdem generis principle applies only when a contrary intention does not appear. The ejusdem generis rule strives to reconcile the incompatibility between specific and general words. This doctrine applies when: (i) the statute contains an enumeration of specific words; (ii) the subjects of the enumeration constitute a class or category; (iii) that class or category is not exhausted by the enumeration; (iv) the general term follows the enumeration; and (v) there is no indication of a different legislative intent. In this respect regard may be had to Amar Chandra Chakraborty Vrs. Collector of Excise, (1972) 2 SCC 422; Soudamini Sivadas Vrs. State of Kerala, (2015) 77 VST 1 (Ker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll preparations. So in following the decision of the Hon'ble High Court of Orissa in case of M/s. Hindustan Lever Ltd. mentioned supra we cannot say the observation of the leaned DCST on taxability of melamine utensils under the OET Act to be wrong." 10.2. The stand of the Revenue, examined in the light of aforesaid finding of the learned Tribunal, is apparently contrary to what has been returned by the Assessing Authority. The Assessment Order without any ambiguity has recorded as follows: "The dealer in the instant case is engaged in manufacturing and sales of melamine utensils. ***" 10.3. Whether "dinner set" made of melamine fell within the scope of any of the entries in the Schedule to the OET Act was never under consideration before the taxing authorities. It is the "melamine utensils" which was subject-matter of examination by the authorities. Even the grounds of second appeal filed by the Revenue did not suggest the same. Instead of making prevaricating statements, the Standing Counsel for the Revenue before the Tribunal should not have confused by taking new plea for adjudication as to whether plates, bowls, spoons and dinner sets would be exigible to rate of tax @ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate or shall not collect any tax, as the case may be. Explanation.- For the purposes of this section, 'manufacturer' shall include a person who is engaged in mining and sells goods produced or extracted therefrom." 10.6. It has been enunciated in the Judgment dated 13th November, 2002 of this Court in the matters of Indian Metals & Ferro Alloys Corporation of Orissa Vrs. State of Odisha & Others, OJC 3995/2000, etc. etc. that: "In the result, while declining to strike down the Orissa Entry Tax Act, 1999 as ultra vires, we direct that- (1) Unless the basic ingredients, i.e., Entry of scheduled goods for the purpose of Consumption, Use or Sale into a local area of the State are satisfied, the provisions of the Orissa Entry Tax Act, 1999 shall not be attracted; (2) The goods which enter into a local area/areas only for the purpose of transit will not be subject to Entry Tax; and (3) Every manufacturer of scheduled goods under Section 26 shall collect by way of Entry Tax amount equal to the tax payable on the value of the finished products under Section 3 of the Act from the buying dealer either directly or through an intermediary only if the scheduled goods sold are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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