High Court · 2012

ed herein below: (cid:28)I have heard both the parties to the issue and perused records. The petitioner classified ’Rub Gur’ as cattle feed and claimed deduction on the turnover of the item. The claim of deduction was not entertained by the assessing officer who h eld that ’Rub Gur’ is not exempted goods as per Schedule-I attached to the Act. Any item which is enlisted in Schedule-I is exempted from levy of tax under the Act. It is seen that Gur and jeggari are exempted as per entry 17 of Schedule-I. ’Rub Gur’ is not included in this entry nor in any other entry of Schedule-I o r any other Schedule. So it is unclassified item which should be covered by entr y 2 of Schedule-III and hence taxable at 8 percent. Entry 50 of Schedule-I incl udes cattle feed, which is therefore exempted. Now let us consider if ’Rub Gur’ is a cattle feed. In common parlance ’Rub Gur’ is a form of Gur and not cattle f eed. I cannot agree to the contention of the petitioner that ’Rub Gur’ is used o nly as cattle feed. It has many other known uses. Also, the ultimate use of an i tem cannot be a criteria for the purpose of classification. The statutory provis ion is clear when it include ’Gur and Jaggari’ in entry 17 of the Schedule-I and ’Rub Gur’ or any other form of Gur are not included in entry 17 of Schedule-I. ’Rub Gur’ being not included in Schedule -I or any other Schedule should be clas sified as an unclassified goods under entry 2 of Schedule-III and is taxable at 8 per cent. I am therefore of the opinion that the assessing officer was justifi ed in treating ’Rub Gur’ as an unclassified item as per entry 2 of Schedule-III. I therefore find no reason to interfere with the order of assessment made by th e assessing officer. In the result, the petitioner of revision fails. (cid:29) [5] .1.2004 and consequential orders levying tax on (cid:28)Raab Gur (cid:29) are under challenge. In these writ petitions, the aforesaid revisional order dated 28 [6] It is the case of the Revenue that even though (cid:28)Gur and Jaggery (cid:29) are exempted as per Entry 17 of Schedule I of the Act, (cid:28)Raab Gur (cid:29) is a differen t item and is not included in the Entry in any other Entry of the Schedule I or any other Schedule. Therefore, it is an unclassified item which would be covered by Entry 2 of Schedule 3 of the Act and accordingly, taxable @ 8%. As regards t he contention of the petitioner that the (cid:28)Raab Gur (cid:29) is also used as cattle feed and hence exempted from tax under Entry 50, it is the stand of the Revenue that (cid:28)Raab Gur (cid:29) is used not only as a cattle feed but has other uses. The Revenue als o contended that the ultimate use of an item cannot be criteria for the purpose of classification. [7] Therefore, the issue to be decided by this Court is whether (cid:28)Raa b Gur (cid:29) is to be treated as (cid:28)Gur (cid:29) so as to be covered under Entry 17 of Schedule 1 of the Act for exemption from payment of tax. Similarly, if (cid:28)Raab Gur (cid:29) is trea ted as a (cid:28)cattle feed (cid:29) it will also enjoy exemption, as (cid:28)cattle feed (cid:29) is exempte d under Entry 50 of Schedule I of the Act. [8] The first contention of the petitioner is that (cid:28)Raab Gur (cid:29) is ano ther form (cid:28)Gur (cid:29) and hence should be treated as (cid:28)Gur (cid:29) for the purpose of exemptio n under Entry 17 of Schedule I of the Act. The petitioner has also relied upon t he definition of (cid:28)Gur (cid:29) as given in Gur Control Order, 1994, the Gur Movement Con trol Order, 1963 as well as the Gur (Regulation of Use) Order, 1968, to show tha t (cid:28)Gur (cid:29) also means (cid:28)Raab Gur (cid:29). It is now well settled that definition of a word in another stat ute cannot be imported unless the Acts are pari materia and the word or expressi on used in any statute is to be used in the context of the particular statute fo r the reason that the legislative intent in the different statutes may be differ ent. The present issue involving meaning of (cid:28)Gur (cid:29) and (cid:28)Raab Gur (cid:29) is in the conte xt of the exemption clause under the Assam General Sales Tax Act, 1993. By the e xemption provided, certain articles which, otherwise, would be subjected to tax are exempted from tax. Therefore, by the very nature of the statute, only such i tems which are specifically mentioned under the exemption clause are to be exemp ted from tax. There could not be liberal interpretation of the exemption clause to enlarge the scope of exemption unless the statute so intends. The Orders cite d by the petitioner essentially relate to control/regulation of the movement of (cid:28)Gur (cid:29). It is possible that the legislature might have intended to enlarge the sc ope of the definition clause to bring more articles under control or regulation while issuing the aforesaid Orders. These Orders are neither cognate laws nor ar e in pari materia with the Assam General Sales Tax Act, 1993. Therefore, it may not be appropriate to rely on the definition of (cid:28)Gur (cid:29) given in these Orders for the purpose of explaining the meaning of (cid:28)Gur (cid:29) under the Act for determining the scope of exemption provided under Assam General Sales Tax Act, 1993. Further, it is also seen from the definitions of (cid:28)Gur (cid:29) given in these Orders tha t (cid:28)molasses (cid:29) is also included within the meaning of (cid:28)Gur (cid:29). In Entry 17 of Schedu le I, the exempted items are (cid:28)Gur and Molasses (cid:29). Therefore, if molasses which ot herwise is also a kind of (cid:28)Gur (cid:29) is included in the exemption clause, it is clear indication that all forms of (cid:28)Gur (cid:29) are not exempted except those mentioned ther ein. Therefore, unless (cid:28)Gur (cid:29) means and is identical to (cid:28)Raab Gur (cid:29), it cannot be brought within the scope of Entry 17 of Schedule I of the Act. . If the intentio n of the legislature was to bring all kinds of (cid:28)Gur (cid:29) for the purpose of exemptio n, there was no need to mention (cid:28)molasses (cid:29) which is also another form of (cid:28)Gur (cid:29) w ithin the said Entry. Therefore, we are also in agreement with the Revenue that even though (cid:28)Raab Gur (cid:29) in common parlance is a form of (cid:28)Gur (cid:29), it is a distinct i tem and not the same as (cid:28)Gur (cid:29) and is not specifically included in the Schedule I or any other Schedule for the purpose of exemption. Hence, (cid:28)Raab Gur (cid:29) cannot en joy exemption from tax under Entry 17 of the Schedule I of the Act. [9] We will now examine the other contention of the petitioner that (cid:28)Raab Gur (cid:29) being an item of cattle feed can be exempted from tax under Entry 50 of Schedule I of the Act. It is the specific stand of the petitioner that (cid:28)Raab Gur (cid:29) is not fit for human consumption and used as a cattle feed. It is not dispu ted by the authorities that (cid:28)Raab Gur (cid:29) is used as a cattle feed. The only case o f the Revenue is that apart from its use as a cattle feed, there are other many known use and the ultimate use of an item cannot be criteria for the purpose of classification. We are unable to agree with this stand of the Revenue in as much as it is not shown as to the primary known uses of (cid:28)Raab Gur (cid:29) other than as a c attle feed. Even if (cid:28)Raab Gur (cid:29) is used for other purposes as contended by the Re venue, the fact that (cid:28)Raab Gur (cid:29) is used as a cattle feed is not denied by the Re venue authorities. Since, cattle feed is exempted under Entry 50 of Schedule I o f the Act, (cid:28)raab gur (cid:29) which is also used as a cattle feed would be exempted unde r the said Entry 50. Cattle feed could be of any substance known by different na mes or may consist of different products and there is no reason as to why any su bstance, if known and used as a (cid:28)cattle feed (cid:29) would not enjoy exemption under En try 50 of Schedule I of the Act. The Revenue also held that the ultimate use of an item cannot be the criteria for the purpose of classification. We are not able to agree with t his proposition. End use of a merchandise has been accepted as an important crit erion for classification under the excise laws. In Commissioner of Central Excis e, Calcutta v. Sharma Chemical Works, (2003) 5 SCC 60 the Supreme Court held tha t, (cid:28) & & & & & & & & & &..The main criterion for determining classification is normally the u se it is put to by the customers who use it. The burden of proving that Banphool Oil is understood by the customers as a hair oil was on the Revenue. This burde n is not discharged as no such proof is adduced. On the contrary, we find that t he oil can be used for treatment of headache, eye problem, night blindness, reel ing head, weak memory, hysteria, amnesia, blood pressure, insomnia etc. The dosa ges required are also set out on the label. The product is registered with the D rug Controller and is being manufactured under a drug licence. (cid:29) (emphasis added) . Even though, in the said case, the Supreme Court was dealing with issue whether (cid:28)Banphool Oil (cid:29) is classifiable as a (cid:28)perfumed hair oil (cid:29) or as an (cid:28)Ayurvedic medi cament (cid:29) under the Central Excise Tarrif Act, 1985, we are of the view that the s aid principle of (cid:28)end user (cid:29) may be also applied in the present case to ascertain the scope of the entry (cid:28)cattle feed (cid:29). If the end use of (cid:28)Raab Gur (cid:29) can be cattl e feed, we are of the view that (cid:28)Raab Gur (cid:29) can be also treated as cattle feed. [10] The Respondents in their affidavit in opposition (filed in W.P. (C) No. 1794 of 2004) stated that with the growth of scientific and modern pract ices of agriculture and animal husbandry, market has witnessed large scale circu lation of a distinct and unique merchandise described and understood as (cid:28)cattle feed (cid:29) and any attempt to give a generalised meaning to the term so as to include within the sweep thereof other commodities or goods would be gravely erroneous as it would vitiate the very basis and principle of commodity taxation. However, nothing has been mentioned as to what are those products and merchandise which are distinct and unique which can be described and understood as (cid:28)cattle feeds (cid:29). If it is accepted by the authorities that (cid:28)Raab Gur (cid:29) is also a (cid:28)cattle feed (cid:29), m erely because it has other uses will not detract it from coming within the purvi ew of Entry 50. There is no indication in Assam General Sales Tax Act, 1993 that only a particular kind of merchandise will be treated as (cid:28)cattle feed (cid:29) for the purpose of Entry 50. It may be relevant to mention here that the Revenue authori ties themselves had once treated (cid:28)Raab Gur (cid:29) as a cattle feed for the purpose of taxation when the said item (cid:28)cattle feed (cid:29) was not included as an exempted item e arlier. Therefore, we are of the view that (cid:28)Raab Gur (cid:29) being a cattle feed would be liable to be exempted from tax under Entry 50 of Schedule I of Assam General Sales Tax Act, 1993. [11] As a result these writ petitions are allowed. The Respondent aut horities are restrained from levying tax on the petitioner in respect of the ite m (cid:28)Raab Gur (cid:29) which is a (cid:28)cattle feed (cid:29), which is covered by Entry 50 of Schedule I of Assam General Sales Tax Act, 1993 and Respondents authorities are directed to act vis a vis the petitioner accordingly.