M/s.Electro Optics (P) Ltd.,267, Kilpauk Garden Road,Chennai. v. The State of Tamil Nadu rep. by The Deputy Commissioner of Commercial Taxes,Chennai.

W.P.No.18770 of 2000M/s.Electro Optics (P) Ltd.,267, Kilpauk Garden Road,Chennai.: Petitioner in W.P.No.18770 of 2000Vs.1.The State of Tamil Nadu rep. by The Deputy Commissioner of Commercial Taxes, PAPJM Buildings, Greams Road, Chennai - 600 006.2.The Tamil Nadu Sales Tax Appellate Tribunal (Addl. Bench), Chennai, Rep. by the Secretary, City Civil Court Buildings, High Court Compound, Chennai - 600 104.3.The Commercial Tax Officer, Kilpauk Assessment Circle, Chennai.: Respondents in W.P.No.18770 of 2000Writ Petition under Article 226 of the Constitution of Indiato issue a writ of Certiorarified Mandamus calling for the recordsof the second respondent in T.A.706/99, quash the order dated17.4.2000 made there in and further direct the IIIrd respondent totreat electronic servey instrument dealt with by the petitioner as anelectronic equipment classified under Entry 50 of part B of thefirst Schedule to the Tamil Nadu General Sales Tax Act 1959.For Petitioner : Mr.R.L.Ramani Senior Counsel.For Respondents : Mr.Haja Nasrudeen, Special Government Pleader for TaxC O M M O N O R D E RB.RAJENDRAN,J.The petitioner has filed these Tax Cases as against the orderpassed by the Sales Tax Appellate Tribunal in T.A.No.759 of 1998 andT.A.No.158 of 1999 along with C.O.P.No.258 of 1998 and C.O.P.No.433of 1998, dated 03.12.1999. https://hcservices.ecourts.gov.in/hcservices/

2. Originally the Assessing Authority assessed the net taxableturnover at Rs.54,67,907/- including Rs.5,03,700/- representing firstsales of machinery taxable at 8% as proposed in the pre-assessmentnotice which was taken twice while arriving at the total and taxableturnover, which was a mistake, the Assessing Authority thereforerevised the assessment by adopting the correct sales turnover asunder:First sales of survey instrumentsRs.49,64,207-00 First sales of spares and accessories of survey instruments at 16%Rs. 5,03,700-00Miscellaneous incomeRs. 46,642-00Total and taxable turnover determined at 16%Rs.55,14,547-00That apart the Assessing Authority levied a penalty under Section 12(3)(b). Similarly, for the year 1994-95 the Assessing Authorityassessed a turnover of Rs.8,75,039/- at the rate of 16% treating thesame as sales of survey instruments and also levied a penalty ofRs.1,92,603/- under Section 12(3)(b) and under Section 12(3)(c) apenalty of Rs.1,714/-. Aggrieved against this order, the appellantfiled an appeal before the Appellate Assistant Commissioner and thelearned Appellate Assistant Commissioner dismissed both the appeals.Aggrieved against that order, the appellants filed these Tax Casesand a Writ Petition before this Court. As all the matters areconnected, all the three matters are taken up jointly by consent ofparties.3. The main contention of the learned Senior Counsel appearingfor the petitioner is that the commodities dealt with by thepetitioner are electronic equipments which are classified under entry50 of Part B of First Schedule to the Tamil Nadu General Sales TaxAct and the correct assessable rate is only 3%. It was contendedthat the learned Appellate Assistant Commissioner erred in followinga clarification issued by the Special Commissioner and Commissionerof Commercial Taxes, Chennai. It was contended that the electronicsurvey equipments dealt with by the petitioner herein cannotbe treated on par with mechanical survey apparatus. It was alsocontended that the classification of a commodity is not to bedetermined according to the use to which it is put and he would relyupon a decision of the Apex Court reported in 42 STC 43 and also to adecision by Kerala High Court reported in 104 STC 44. It is furthercontended that the items dealt with by the petitioner are electronictheodolites whereas the entry 14 of Part F of the First Schedulecontemplates only mechanical theodolites and survey instruments.Relying on the decision of the Apex Court reported in 70 STC 97, itwas contended that all the items in a group should be considered in ageneric sense. It was also contended that when a good was notdefined in the Act it must be construed in a sense as understood incommon parlance and added that in the commercial circles thiscommodity is understood as an electronic equipment only. It wasfurther contended that in construing a taxing statute if the https://hcservices.ecourts.gov.in/hcservices/ legislature has failed to clarify its meaning by use of appropriatelanguage, the benefit must go to the tax payer and if there is anydoubt as to interpretation, it must be resolved in favour of thesubject and accordingly pleaded for allowing the appeal. It was alsocontended that this item falls under special entry under the entry ofelectronic goods and not under the general entry of surveyinstruments under entry 14 of Part F. It was contended that the levyof penalty under Section 12(3)(b) is not proper inasmuch as there wasno wilful evasion or contumacious conduct or infraction of law andtherefore pleaded for deleting the penalty levied under Section 12(3)(b).4. The learned Special Government Pleader contended that thedata contained in the catalogue of the petitioner commodity isavailable in the assessment file and also contended that according tothe catalogue the commodity dealt with by the petitioner is nothingbut a survey instrument. It was further contended that when therewere two entries, the special entry will cancel the general one andtherefore, the entry 14 Part F of the First Schedule will overridethe general entry of other electronic goods. The learned SpecialGovernment Pleader relied on the decisions reported in 34 STC 153, 39STC 194 and drew our attention to various case laws where thejudicial forums upheld the interpretation that the specific entryexcludes the general entry. In short, it was contended that thecommodity was correctly assessed by the assessing authority and thesame was upheld by the learned Appellate Assistant Commissioner andtherefore, contended for dismissing the appeal. It is furthercontended that regarding the levy of penalty, it was pleaded that thelevy was upheld by this Court in W.P.No.19218 of 1996, in the case ofChennai Textiles Chemicals Pvt., Ltd., Vs. State of Tamil Nadu andtherefore pleaded for confirming the same.5. Heard the learned Senior Counsel appearing for thepetitioner as well as the learned Special Government Pleaderappearing for the respondents.6. The only question of law which was sought to be arguedbefore this Court is whether the commodity dealt with by thepetitioner falls under the classification of First Schedule Part Bentry 50 or other electrical goods or under First Schedule Part Fentry 14 theodolite, survey instruments as claimed by the Revenue andif so, whether it is assessable at the rate of 3% or 16%respectively. Consequently whether the penalty levied under 12 (3)(b) is maintainable.7. We have heard the arguments in length to decide the issuein question taking into consideration the question of fact thatadmittedly the petitioner had imported survey instruments fromM/s.Sokkia Company Ltd., Japan, and has sold the same in India as percopy of the bill of entry filed along with the assessment. The orderof the Assessing Officer as well as the appellate authority revealsthat the petitioner has declared the items imported as surveyinstruments before the Customs Authority also. The catalogue which https://hcservices.ecourts.gov.in/hcservices/ was produced before the lower forum also was produced before thisCourt and as per the finding of the Tribunal and from the reading ofthe catalogue it clearly explains the nature of the commodity. It isalso very clear from the catalogue itself that it comes under thecategory of survey instruments Set2C, Set3C and Set4C and it iscalled Intelligent Total Stations Series C. The imported instrumentsare as per clear finding of the Tribunal is a entirely new generationof survey instruments with innovative mechanical and electronicsoftware additions and enhancements. As per the catalogue, theinstruments also contain memory card and control panel for multiplefunctions of the movement. The survey system also consist ofpowerful telescopic laser theodolite which is used also for nightsurveying. In short, as per the catalogue and as per the finding ofthe Tribunal as rightly held that these instruments are intrinsicalsurvey instruments only and there is no dispute also insofar as theconclusion that the instrument is used for surveying purpose.8. Further, the learned Senior Counsel appearing for thepetitioner would only contend that though the instrument is asurveying instrument it cannot be construed or called as a mechanicalsurvey instrument as it is purely managed by electronic gadgets andat the time of passing of the Act the legislatures never thoughtabout implementation of electronic gadgets and whatever it is statedin the Act would only denote the mechanically operated instrumentsand not to the electronically operated goods. In fact, at thisjuncture, it is pertinent to extract the relevant provisions whichboth the parties relied upon to substantiate their case.Tamil Nadu General Sales Tax Act. First Schedule Part B –50.“Electronic systems, instruments, apparatus, appliancesand other electronic goods (other than those specified elsewherein the Schedule) but including electronic cash registering,indexing, card punching, franking, addressing machines andcomputers of analog and digital varieties, one record units, wordprocessor and other electronic goods and parts and accessories ofall such goods”.Tamil Nadu General Sales Tax Act – First Schedule Part F –14.“Binoculars, monoculars, opera glasses, other opticaltelescope, astronomical instruments, microscopes, binocularmicroscopes, magnifying glasses, diffraction apparatus andmountings therefor including theodolite, survey instruments andoptical lenses, parts and accessories thereof.” (underlining isours)9. The learned Senior Counsel appearing for the petitionerwould contend that on a reading of the two provisions, there is noquestion of electronic theodolite and electronic survey instrumentsin entry 14 Part F and therefore, he would only contend that theelectronic survey instrument is totally different and distinguishablefrom an ordinary survey instrument that is mechanically operated https://hcservices.ecourts.gov.in/hcservices/ survey instruments. He would further contend that the surveyinstrument will not fall under the category and the goods has to beclassified only under the head of other electronic goods as it willcome under the special category which excludes the normal, generalcategory. He would further strenuously contend that if there is anambiguity in respect of the classification of the goods and if thelegislature has failed to clarify its meaning by use of appropriatelanguage, then the benefit must only go to the tax payer and even ifthere is an instrument as agreed to the applicability of theparticular section, it would necessarily be only in favour of theassessee and therefore, it can only be considered as other electronicitems of goods which carries a lesser rate of tax and not as anelectronic survey instrument which carries a higher tax bracket.10. The learned Senior Counsel for the petitioner wouldcontend that all the items contained in this entry related tomechanical instruments only and therefore, the electronic theodolitesand other survey instruments would not fall under thisclassification. Hence, the assessment order itself is not legallysustainable and sought for the quashing of the same.11. The learned Special Government Pleader would specificallycontend that as per the declaration made by the petitioner himself inthe Customs Department it is only a surveying instrument and also thefact that there was no dispute that it is used only for surveyingpurpose when especially a specific category has been mentioned in theAct, there cannot be a reference to a general category and therefore,the assessing officer was right in concluding that the machinery hasto be levied only in accordance with the specific category i.e. thesurveying instruments. He would also specifically point out that aparticular commodity is taxable at a particular rate, at theparticular entry and the same must be adhered to. He also reliedupon the ruling reported in 34 STC 153 and 39 STC 194 for thepropositions that separate entry excludes the general entry and thepenalty was also rightly imposed in view of the inordinate delay aswell as the wrong declaration in charging of the rate.12. To decide the question involved, whether the tax has to belevied in respect of these items whether it is called as a surveyinginstrument or electronic survey instrument what is the rate of tax tobe levied, we are specifically governed by the very Act itself. On acareful reading of the two portions of the First Schedule as claimedby both the parties would reveal one thing clear that the entry 50would clearly state that it would apply to all electronicinstruments, apparatus excepting as specified in the very sectionitself (other than those specified elsewhere in the Schedule) thewords which has been shown in the bracket would clearly indicate thatif any other item is mentioned elsewhere in the Schedule, it will notbe covered under the First Schedule Part B – 50, this was mainlyrelied upon by the Special Government Pleader and also brought to thenotice of this Court that on a reading of Part F-14 of the FirstSchedule the specific words used there are including theodolite,surveying instruments, ... and accessories thereof. Therefore, when https://hcservices.ecourts.gov.in/hcservices/ there are specific recitals for a particular material, namely, surveyinstrument and theodolite, it could definitely come within thepurview of Part F – 14 and not Part B – 50 as Part B – 50 clearlydenotes that other than those specified elsewhere in the Schedule.In Part F-14, the word both theodolite and survey instrument havingbeen specifically mentioned definitely Part B – 50 cannot beattracted. 13. Contra, the learned Senior Counsel appearing for thepetitioner would contend that the words survey instrument andtheodolite when it was introduced in this Act there were noelectronic devices were used only mechanically which was availablethen therefore, the framers would not have thought of including theelectronic items as it was not available then. Therefore, the newintroduction of electronic goods would include this electronic andelectronically operated item like theodolite and survey instrumentswhich is of new generic equipments would be attracted by entry B –50. But, on a careful reading, it would denote that when theinstrument is mentioned it will be inclusive of whether it ismechanical or electrical or electronic one. There cannot be adistinction in the type of electronic appliances or the latestelectronic devices for the very same instrument. In fact, theAssessing Authority as well as the Appellate Assistant Commissionerand thereafter the Tribunal have all clearly held that this is asurvey instrument which is imported by the petitioner or a newgeneration instrument and it is used for a total survey systemconsist of powerful telescopic and laser theodolite which is evenused for a night surveying. In fact, we had also the benefit ofcatalogue of the item manufactured by the Japan company which wouldalso clearly indicate that this is utilised only for surveyingpurpose and it is also called surveying instrument. 14. Therefore, definitely it cannot be gainsaid by thepetitioner that it falls under electronic goods and that cannot beequated to survey instrument operated mechanically. Earlier it wasmechanically operated, now it is being made as electronic devices.15. The learned Senior Counsel appearing for the petitionerwould further contend that on a reading of First Schedule ofT.N.G.S.T. Act, Part B entries 38, 39, 40, 41, 42, 50, 51 and 52which all would specifically say in respect of electronic items andcharging 3% as the tax whereas if we take Part D entry 41 which woulddenote non-electronic weighing machines, dipping measures, metrescales, the sales tax would be at 8% and if we take Part E entry 20which will denote electrical appliances (domestic and commercial)including Coffee roasting appliances and so many things under theexplanation it will say all the above goods notwithstanding that theycontain electronic circuits, switchings or control device systems,shall be deemed to be electrical appliances (domestic and commercial)and which would be taxable at the rate of 12% and in the case of PartF entry 10, 11, 12 and 14 it denotes typewriters, teleprinters,tabulating, calculating machines, duplicating machines, binoculars,monoculars, wherein theodolite and survey instrument which mentioned https://hcservices.ecourts.gov.in/hcservices/ in entry F - 14 these are all items will include at 16%. Therefore,his contention is wherever electronic items have come the rate havebeen specifically made at 3% and he was under the bona fideimpression that this being an electronic goods automatically it isliable to be levied only at 3% and he cannot be expected to pay 16%as he would mainly contend that it can only be an electrical item.Therefore, the levy was not correct. 16. But, this argument cannot be accepted in view of thespecific recital in the Part B entry 50 which would specificallyindicate that other than those specified elsewhere in the Schedulealso as stated supra that the specialised materials having beenspecifically stated under the rate of 16% merely because the devicesis operated by electronic method it cannot be treated as a electronicgoods. 17. In this connection, the learned Senior Counsel appearingfor the petitioner relied upon the following propositions that inspite of availability of a specific entry to get a pep up to themodern technology and to promote consumer electronic industry thelower rate of tax was fixed as in the case reported in 121 STC 450,(SC) BPL Ltd., (2001) wherein it was held that washing machinethough was specifically mentioned in item No.38 (iv) of the Scheduleto the Act whereas entry 38 (v) relates to electronic items includingautomatic washing machines. Therefore, the electronic washingmachine also come under entry 38(v) and the notification would applyto all electronic goods including automatic washing machines of theappellants. Basing on this ruling, the Senior Counsel appearing forthe petitioner would contend that the survey instrument which is nowelectronic instrument though is separately shown under entry F 14would come under entry B 50 and to the same effect the other ruling131 STC 160 (All) Cannon India (P) Ltd; 11 VST 277 (All) BarcoElectrical System, 14 VST 150 (Ker) K.M.Mohammed Habeebulla, thedecision of the Hon'ble Supreme Court has followed in the above threecases.18. The learned Senior Counsel appearing for the petitionerwould further rely upon 176 IRT 435 (SC) for the interpretation ofstatute and intention in granting the exemptions wherein the Hon'bleSupreme Court has held that while giving a meaning to an itemcontained in the schedule of articles, the Court should normally giveit a meaning intended by the framers of the Schedule by looking atthe various articles mentioned in a particular group. All the itemsin one group should be considered in a generic sense. It appearsthat class III of the schedule in the instant case was intended todeal with the subjects of methylated, denatured and rectified spiritwhich was brought within the limits of the Nagar Mahapalika for useas articles for lighting, fuel, washing and lubricants at the lowrate of Re.0.05 per litre while liquor brought within its limits foruse as an article of intoxication was intended to be subjected tolevy of octroi duty at the higher rate of Re.1 per litre. 19. Further, the learned Senior Counsel appearing for the https://hcservices.ecourts.gov.in/hcservices/ petitioner would rely upon 88 ITR 192 (SC) for the proposition thatif the language of taxing provision is ambiguous or capable of moremeanings than one, then the Courts have to adopt the interpretationwhich favours the assessee. In fact, the Hon'ble Supreme Court hasheld that (on the other hand) if two reasonable constructions of ataxing provision are possible, that construction which favours theassessee must be adopted. This is a well accepted rule ofconstruction recognised by this Court in several of its decisions.He would also further contend that since the classification hadaccepted by the Department for long time the petitioner is of theopinion it was for department to show as to why the differentinterpretation should be resorted to. In this connection, theHon'ble Supreme Court has held as in the earlier case, it is now wellsettled principle of law that when two views are possible, one whichfavours the assessee should be adopted. He would also rely uponMadras High Court decision reported in 43 STC 404 which has heldmerely because an article cannot be used without electricity, it maynot be decisive. It is necessary that, apart from that fact, thearticle, by its very nature, answers the description of electricalgoods. 20. The argument of the learned Senior Counsel on the basis ofthese rulings would only indicate that even though the item ismentioned in a separate clause under entry F 14 inasmuch as it isused by electronic methods and when specifically electronic items aregiven the benefit to this instrument is only to be construed as aelectronic goods as under First Schedule Part B and not under Part F14. His main contention was in all these cases the Courts haveinterpreted that in spite of the fact that there was a separateentry yet electronic goods when it is mentioned though notspecifically would include the said item also. But, there is adistinction in the case. Here, as admitted by the petitionerhimself, even before the Customs Authorities that he has brought thismachinery only for the purpose of surveying and treated as surveyinginstrument. When specifically the theodolite as well as the surveyinstrument has been mentioned there whereas entry B – 50 and aspecific clause has been made excluding other items in the schedulethereon definitely there is a distinction. In all these cases, onlyif there is a difference that the benefit of doubt can be given toassessee but in this case there is no ambiguity, there is nodifference of opinion as it has been specifically made as one that ofa surveying instrument which is also admitted.21. In the case of BPL Ltd., reported in 121 STC 450 it isworthwhile to mention that the relevant portion of the judgement inparagraph 4 itself it is clearly stated that prior to July 20, 1988,the rate of sales tax leviable on the sale of automatic washingmachine was 10%. On July 20, 1988, by a notification issued inexercise of power contained in section 9 of the Andhra PradeshGeneral Sales Tax Act, 1957, the rate of tax payable on the sale of“electronic goods”, as defined in the said notification was reducedto 2 paise in a rupee with effect from July 1, 1988. Thisnotification also exempted the sale of electronic goods from the levy https://hcservices.ecourts.gov.in/hcservices/ of additional tax under section 5-A and surcharge on sales tax undersection 6-B of the said Act. The term electronic goods was alsodefined in the notification as electronic goods means electronicsystems, instruments, appliances, apparatus, equipment operating onelectronic principles and all types of electronic components, partsand materials and includes (i) consumer electronics; (ii) electronictest and measuring instruments; (iii) medical electronic equipment;(iv) electronic analytical instruments; (v) electronicequipment/instrument for nuclear geoscientific and other specialapplications; (vi) electronic process control equipment; (vii) powerelectronic equipment; (viii) electronic industrial automation andcontrol equipment; (ix) electronic data processing systems andelectronic office equipment; (x) electronic broadcasting equipment;(xi) electronic communication equipment; and (xii) electronicaerospace and defence equipment. Basing on the said notification theappellants claimed that fully automatic washing machines were micro-computer-controlled washing machines that actually worked on theprinciple of auto selection of the various parameters. But, theDepartment did not accept the contention of the appellants and theDepartment was raising a demand for differential tax on the groundthat the washing machine is given in a different schedule. TheAndhra Pradesh High Court rejected the claim of the company acceptedthe version of the department on appeal the Hon'ble Supreme Courtheld taking into consideration the key word as per the notificationare operating on electronic principles and that the Andhra PradeshGovernment issued such a notification to give fillip to moderntechnology as a result of which consumer electronics or electronicappliances or equipment operating on electronic principles were to becharged lesser rate of sales tax. In other words, what the saidnotification requires is that an item can be regarded as electronicgoods if all its functions which are required to be performed by thatequipment or appliance are performed or controlled electronically bymicro-processor. Further, the Hon'ble Supreme Court pointed out thaton June 1, 1989, the Government of Andhra Pradesh has issued amemorandum drawing the attention of the Commercial Taxes Departmentto the notification dated 20th July 1988 bringing out various items oflist coming under the consumer electronic goods and the definition ofelectronic goods were to be followed and washing machine even thoughspecifically mentioned in clause 38 sub-clause (iv) of the Scheduleto the Act but pursuant to the notification it would be construed asan electronic goods and finally held an electronic washing machinewould come under 38(v) and the notification dated July 20, 1988 wouldapply to all electronic goods including automatic washing machines ofthe appellants. Therefore, the basis for the judgment is thesubsequent notification which gave the concessional rate of tax forgiving a pep up to the electronic industries. Whereas in this casethe very act prohibits the same and very act excludes the same.Therefore, the ruling cited by the petitioner will not be applicableto the facts of this case. Part B of 50 clearly stipulates thatother goods specified elsewhere in the schedule would be excluded.Therefore, there can be no comparison in between the concession givenunder the notification can be applied to the facts of the case whenact clearly excludes the special item from the general entry. https://hcservices.ecourts.gov.in/hcservices/

22. The learned Special Government Pleader has brought thefollowing rulings to the notice of this Court:1.139 STC 504 (Ker) Southern Gas Ltd vs.2.84 STC 571 (Guj) C.K.Gause Bandage Mfg. Co.3.147 STC 421 (SC) Carrier Aircon Ltd.4.147 STC 329 (Ker) Stovekraft Pvt. Ltd.5.47 STC 359 (SC) Indo International Indusries.6.7 STC 557 (Bom) Roopkala Industries7.45 STC 245 (Del) Sialkot Trading Company8.121 STC 294 (SC) Shri Naresh Chandra Ghose9.80 STC 167 (Mad) Bimetal Bearings Ltd.10.55 STC 354 (Mad) Indian Eylets Industries11.53 STC 429 (Mad) Kannika Sycle Stores12.87 STC 167 (Mad) Anikal Corporation23. The major contention raised by the Special GovernmentPleader as per the three Hon'ble Supreme Court judgments reported in147 STC 421, 47 STC 359 and 121 STC 294 and the three Madras HighCourt judgments reported in 80 STC 167, 55 STC 354 and 53 STC 429were to the effect that there are number of factors which have to betaken into consideration for determining the classification of aproduct. For the purpose of classification the relevant factors,inter alia, are statutory fiscal entry, the basic character, functionand use of the goods. When a commodity falls within a tariff entryby virtue of the purpose for which it is put to, the end use to whichthe product is put to, cannot determine the classification of thatproduct. The product should be given the meaning of the terms orexpressions used, but to their popular meaning, that is to say, themeaning attached to them by those dealing in them or in other wordsthe meaning of the term in common parlance or commercial parlance hasto be adopted. In a case where an item falls under two entries in theschedule in order to decide the taxable entry the question is as towhich of the two is the special entry, for the special entry willexclude the general entry and if a description is given in respect ofthe product it is impermissible to ignore the description. Even asper the Madras High Court decision, the theodolite has been construedas an instrument used for surveying purpose and therefore, it willnot come under the classification of electronic goods.24. On a plain reading of the two provisions i.e. B - 50 and F- 14 of the First Schedule, there is an exclusion clause, namely,other than those specified elsewhere in the Schedule. Admittedly, inthis case, in the other schedule F - 14 the word used is includingtheodolite, survey instruments and optical lenses, parts andaccessories thereof. Therefore, two things are clear one the wordtheodolite as well as survey instruments have been used specificallyin F 14 whereas in B - 50, the word used is electronic goods but italso specifically stated that other than those specified elsewhere inthe Schedule. Therefore, the literal meaning of the commonunderstanding in the interpretation of a statute could only mean thatwherever the product is specifically mentioned elsewhere then such https://hcservices.ecourts.gov.in/hcservices/ product will be excluded as found in B - 50. But, in this case,though reliance has been made specifically that the theodolite is aninstrument, namely, survey instrument, fully computerised and used onelectronic devices. The new concession given in respect ofelectronic goods has to be taken note of and such a concession shouldbe given in this case also by placing reliance upon the Hon'bleSupreme Court ruling in BPL Ltd., case is legally not sustainable. Wehave already held that BPL Ltd., case will not be applicable to thefacts of this case. Similarly, the ruling cited by the SeniorCounsel appearing for the petitioner reported in 42 STC 433 can beeasily distinguishable. The finding is extracted below:"The reason is that, as pointed out by Story, J., in 200Chests of Tea (1824) 9 Wheaton (U.S.) 430, the legislaturedoes "not suppose our merchants to be naturalists, orgeologists, or botanists". But here the word "textiles" isnot sought by the assessee to be given a scientific ortechnical meaning in preference to its popular meaning. Ithas only one meaning, namely, a woven fabric and that is themeaning which it bears in ordinary parlance. It is true thatour minds are conditioned by old and antiquated notions ofwhat are textiles and, therefore, it may sound a littlestrange to regard "dryer felts" as "textiles". But it must beremembered that the concept of "textiles" is not a staticconcept. It has, having regard to newly developing materials,methods, techniques and processes, a continually expandingcontent and new kinds of fabric may be invented which maylegitimately, without doing any violence to the language, beregarded as "textiles". Take for example rayon and nylonfabrics which have now become very popular for making wearingapparel. When they first came to be made, they must have beenintruders in the field of "textiles" because only cotton, silkand woollen fabrics were till then recognised as "textiles".But today no one can dispute that rayon and nylon fabrics aretextiles and can properly be described as such. We may takeanother example which is nearer to the case before us. It iscommon knowledge that certain kinds of hats are made out offelt and though felt is not ordinarily used for making wearingapparel, can it be suggested that felt is not a "textiles"?The character of a fabric or material as textile does notdepend upon the use to which it may be put. The uses oftextiles in a fast developing economy are manifold and it isquite common now to find "textiles" being used even forindustrial purposes. If we look at the Customs Tariff Act,1975, we find in Chapter 59 occurring in section XI of theFirst Schedule that there is a reference to "textile fabrics"and textile articles, "of a kind commonly used in machinery orplant" and clause (4) of that chapter provides that thisexpression shall be taken to apply inter alia to "woventextile felts..... of a kind commonly used in paper-making orother machinery....." This reference in a statute which isintended to apply to imports made by the trading communityclearly shows that "dryer felts" which are "woven textile https://hcservices.ecourts.gov.in/hcservices/ felts..... of a kind commonly used in paper-making machinery"are regarded in common parlance, according to the sense ofordinary traders and merchants, textile fabrics. We have,therefore, no doubt that "dryer felts" are "textiles" withinthe meaning of that expression in items 30 of Schedule B."25. Here, the Hon'ble Supreme Court has come to the conclusionthat the use to which it may be put is also immaterial and does notbear in its character as a textile. A textile may have diverse usesand it is not the use which determines its character as textile.Therefore, they felt that the "dryer felts" which are used only asabsorbents of moisture in the process of manufacture in a papermanufacturing unit. That cannot militate against "dryer felts"falling within the category of "textiles", if otherwise they satisfythe description of "textiles". Whereas, in this case, the instrumentwhich is used is clear, correct and identified it is only as a surveyinstrument be that it is mechanically operated or electronicallyoperated and as stated supra the word theodolite used also as quotedby the Madras High Court reported in (1998) 109 STC 593 (Lawrence andMayo India (Private) Ltd., V. State of Tamil Nadu). In this case itis relevant to extract the meaning of theodolite as given in The NewLexicon Webster's Dictionary of the English Language, 1991 Edition,at pate 1025 as below:"The-odo-lite (Oi-od-lait) n. an instrument used bysurveyors to measure vertical and horizontan angles,consisting of a small telescope moving along a gradualscale. (origin unknown)Similarly the Bureau of Indian Standards issuedspecifications which is extracted in the judgment of theMadras High Court is as follows:"Foreword-This Indian Standard (First Revision) wasadopted by the Bureau of Indian Standards, after the draftfinalised by the Optical and Mathematical InstrumentsSectional Committee had been approved by the LightMechanical Engineering Division Counsil.Theodolite is an instrument for precise measurementof horizontal and vertical angles. The vernier theodoliteis provided with graduated horizontal and vertical circlesand two small vernier scales. The vernier scales aremovable and remain in sliding contact with the graduatedcircles. The vernier theodolite is not so precise as otheradvanced designs, such as optical theodolite but is stillused largely due to lower cost and simplicity of design.Vernier theodolite may be used for all types of surveysrequired for small and large scale mapping."26. Therefore, it is a clear case that there is no question ofany interpretation of the use of the instrument merely because of theuse of the instrument is given by electronic purpose it will change https://hcservices.ecourts.gov.in/hcservices/ the character or it will change the meaning especially as electronicgoods and seek for a lesser rate of tax. First Schedule, Part F - 14categorically has included both theodolite and survey instrument andas discussed earlier also that from the reading of the catalogue weare able to understand that the entire function for which it is used,the only thing that it is added to computer adaptability is only forthe purpose of field survey. Therefore, the nomenclature used aswell as the user purposes for which it is identified by either partyis only as that of survey instrument. Therefore, there is nonecessity at all for any other interpretation in fact, the petitionerhas also imported the same declaring this to be a survey instrumentand sold it as a survey instrument. Therefore, there cannot be anymeaning attributed to the word electronic goods in this category.Therefore, the Hon'ble Supreme Court ruling relied upon by thepetitioner cannot be applied for the facts of the present case asthere is no distinction at all insofar as the product or as to thepurpose for which it is used.27. Whereas the learned Special Government Pleader relied upona decision reported in 47 STC 359 (SC) (Indo International IndustriesVs. Commissioner of Sales Tax, Uttar Pradesh) which also consistingThree Judges Bench of the Hon'ble Supreme Court has categoricallyheld that it is well-settled that in interpreting items in statuteslike the Excise Tax Acts or Sales Tax Acts, whose primary object isto raise revenue and for which purpose they classify diverseproducts, resort should be had not to the scientific and technicalmeaning of the terms or expressions used, but to their popularmeaning, that is to say, the meaning attached to them by thosedealing in them. If any term or expression has been defined in theenactment then it must be understood in the sense in which it isdefined but in the absence of any definition being given in theenactment the meaning of the term in common parlance or commercialparlance has to be adopted. In that ruling, it is further held thatthe clinical syringes manufactured and sold by the assessee duringthe year 1973-74 could not be considered as "glassware" fallingwithin entry 39 of the First Schedule to the U.P.Sales Tax Act, 1948,would fall under "hospital equipment". Therefore, here also the userof the word is only for survey and theodolite being a surveyinstrument definitely it will come under the specified category andit exclude the general category. 28. The Special Government Pleader also relied upon thejudgement of the Hon'ble Supreme Court reported in 121 STC 294 (Stateof Assam and Others V. Shri Naresh Chandra Ghose (Decd. by L.Rs.)wherein it has held that the Legislature has a wide discretion inselecting persons or objects it wants to tax. A statute cannot bechallenged on the ground that it levies tax on one class of articlesand not on others. He would further contend that merely because theexemptions were granted for electronic goods in some other industrythat by itself could not give any right for the petitioner to seekthat the goods which is now sold by him should be given thisconcession. In fact, in that very ruling the Hon'ble Supreme Courthas categorically held that in respect of the arishtams and asavas https://hcservices.ecourts.gov.in/hcservices/ are medical preparations in the earlier case of Arya Vaidya Pharmacy[1989] 2 SCC 285, had declared that they are not taxable as eventhough they contain alcohol yet it is a medical preparations andexempted from tax but whereas in Tamil Nadu the exemption was grantedonly if the alcohol content is less than 12%, if it is more than 12%then tax is leviable. Such distinction even in respect ofpreparations was held to be correct and legal and others cannotquestion on the basis of the same. Here also the only plea made bythe learned Senior Counsel appearing for the petitioner is that inthe case of Andhra Pradesh where electronic goods were given anexemption the same should be applied to Tamil Nadu also. As heldearlier in Andhra Pradesh a special notification is passed and herethe act excludes hence not applicable.29. The decisions of the Madras High Court reported in 80 STC167, 55 STC 354, 53 STC 429 and 87 STC 167 wherein this Court hascategorically held that entries in the schedule specifically excludesthe general entry and in the decision reported in (1991) 80 STC 167has held that the 'entry' to be interpreted here is in a taxingstatute; full effect should be given to all the words used therein.If a particular article would fall within a description, by the forceof words used, it is impermissible to ignore that description, anddenote the article under another entry, by a process of reasoning.The other judgments are also to the same effect that when there arespecific entries it will exclude the general entry.30. Whereas the judgment relied upon by the learned SeniorCounsel appearing for the petitioner reported in (1988) 70 STC 97(Nagar Mahapalika, Bareilly V. State of U.P. and others) wherein theHon'ble Supreme Court has categorically held while giving a meaningto an item contained in the Schedule of articles, the court shouldnormally give it a meaning intended by the framers of the Schedule,by looking at the various articles mentioned in a particular group.All the items in a group should be considered in a generic sense,which was mainly relied upon by the learned Senior Counsel appearingfor the petitioner to substantiate his case. This ruling will notapply to the facts of the case as held earlier the meaning is veryclear and there is no ambiguity.31. The other decision relied upon by the learned SeniorCounsel appearing for the petitioner reported in 2008 14 VST 259(Mauri Yeast India Pvt. Ltd., V. State of U.P. and another) whereinit is held that it is now a well-settled principle of law that whentwo views are possible, one which favours the assessee should beadopted. In that case, the main crux was when there were twointerpretations possible the classification adverted to by theassessee had been accepted by the Revenue for more than 20 years.Therefore, the Hon'ble Supreme Court has held a differentconstruction to an entry cannot be resorted to only because the rateof tax has been lowered. As the said classification had beenaccepted by the Revenue for a long time, the onus would be on it toshow as to why a different interpretation thereof should be resortedto particularly when no change in the statutory provision has taken https://hcservices.ecourts.gov.in/hcservices/ place. Therefore, in that particular case there was no question ofdistinction of products. It was not only the distinction in respectof classification which admittedly was accepted by the Department formore than 20 years and therefore, the assessment rate benefit whichhe could get accrued for so long number of years would not bewhittled down merely because the Department can get a better rate.But, here the question is totally different. The very same productmerely because of electronic use can it come under different head,namely, electronic goods is a question and therefore, the rulingrelied upon by the learned Senior Counsel appearing for thepetitioner cannot be applied to the facts of the case.32. Similarly the ruling cited by the learned Senior Counselappearing for the petitioner reported in 177 ITR 418 (Broach Distt.Co-operative Cotton Sales, Ginning and Pressing Society Ltd. V.Commissioner of Income Tax, Ahmedabad) it was held that object of 81(i) was to encourage and promote the growth of Co-operative societiesand consequently liberal construction had to be given is notapplicable to the facts of the case at all as there is no need forany interpretation when the Schedule is clear.33. In this connection, we are fortified by the decision ofthe Madras High Court judgment reported in 80 STC 167 (BimetalBearings Ltd. V. State of Tamil Nadu) wherein it was held that theentry to be interpreted here is in a taxing statute; full effectshould be given to all the words used therein. If a particulararticle would fall within a description, by the force of words used,it is impermissible to ignore that description, and denote thearticle under another entry, by a process of reasoning. Therefore,in the present case, when it is very clear that the product is surveyinstrument the full interpretation should be given for the word asfound in the Schedule and therefore, there is no need for any otherdefinition or interpretation. While taking into consideration thevarious rulings of the Hon'ble Supreme Court as well as this Courtdefinitely we could safely conclude that for the product in questionthere cannot be any second interpretation and it would only fallunder Part F 14 of the First Schedule since it comes under specialcategory would exclude the general category. Therefore, the Tribunalhas given a cogent and correct finding including taking intoconsideration of the assessment record and the catalogues technicaldetails had given a clear finding of fact that the instruments areintrinsically survey instruments only and also given a finding thatthere is no ambiguity in the entries and the framers of law haveclassified these items in one group irrespective of the fact whetherthese items are operated by electronic or mechanical mode. TheTribunal has rightly held that a mere addition of memory card orsoftware will not in any way alter the character of the goods whichis intrinsically survey instruments only and therefore, the commoditywould clearly fall under Part F 14 and assessed to tax at 16% and notat 3% as claimed by the petitioner under the head of electronicgoods. Therefore, the findings given by the Tribunal is clear andcorrect. Therefore, the two cases in respect of the assement years1993-1994 and 1994-1995 fails and the question of law is answered https://hcservices.ecourts.gov.in/hcservices/ against the assessee. 34. The next argument which was mainly placed by the learnedSenior Counsel appearing for the petitioner that inasmuch as therewas two interpretation possible the petitioner having followed oneinterpretation it cannot be considered to be violation of any lawand therefore, penalty imposed under Section 12 (3)(b) should not belevied at least the penalty should be excluded. He relied upon adecision of the Hon'ble Supreme Court reported in 88 ITR 192(Commissioner of Income Tax, West Bengal-I Vs. Vegetable ProductsLtd.) wherein it has held that if two reasonable construction oftaxing provision are possible, that construction which favours theassessee must be adopted and if such a construction is adopted then,the mere non-payment would not be entitled to a penalty and penaltyshould not be levied under Section 12(3)(b). As discussed earlier,since we have categorically come to the conclusion and given afinding that there can be no two interpretations in respect of theclassification of the goods. The question of another interpretationdoes not arise at all. As rightly pointed out by the Tribunalinasmuch as there is a total variation in paying the tax levy at 3%to 16% the penalty is warranted and penalty is leviable and findingof the Tribunal is in order and does not call for any interference.Hence this question is also answered against the assessee. 35. In the result, the two petitions for the assessment years1993-94 and 1994-95 and the consequent challenge to the penalty orderunder W.P.No.18770 of 2000 are all dismissed and the common orderpassed by the Tribunal dated 03.12.1999 is upheld as it does notwarrant any interference. No costs. srm/kk Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo1.The Tamil Nadu Sales Tax Appellate Tribunal (Addl. Bench), Chennai, Rep. by the Secretary, City Civil Court Buildings, High Court Compound, Chennai - 600 104.2. The Appellate Assistant Commissioner CT(VI) Chennai https://hcservices.ecourts.gov.in/hcservices/

3.The Commercial Tax Officer, Kilpauk Assessment Circle, Chennai.4.The Deputy Commissioner of Commercial Taxes, PAPJM Buildings, Greams Road, Chennai - 600 006.+ 1 cc to Mr. Chandran Advocate SR. 49179+ Two cc to Special Government Pleader SR. 49396, 49397.Tax Case Nos.1834 of 2006,2307 of 2008 and W.P.No.18770 of 2000 VSN(CO0EU 14.10.2009.