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Rao and Company Vs. State of Karnataka - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberSales Tax Revision Petition No. 19 of 1977
Judge
Reported inILR1981KAR681; [1981]47STC421(Kar)
ActsKarnataka Sales Tax Act, 1957 - Sections 5(1), 21 and 23(1)
AppellantRao and Company
RespondentState of Karnataka
Appellant AdvocateK. Srinivasan, Adv.
Respondent AdvocateM.R. Vanaja, High Court Government Pleader
Excerpt:
.....the learned counsel appearing for the petitioner, contended that though it cannot be disputed that carbon dioxide is an industrial gas, the same cannot be taxed under entry 121 of the second schedule for the reason that apart from merely specifying 'industrial gas',the entry proceeds to state 'such as oxygen, acetylene, nitrogen and the like'.he therefore contended that any other industrial gas cannot be brought under entry 121. he submitted that the principles of ejusdem generis should be applied and consequently any industrial gas, which is combustible like oxygen and acetylene, alone could be brought under entry 121 of the second schedule. webster's third new international dictionary, at page 1531, gives the properties of nitrogen as 'colorless, odorless, tasteless, insoluble, inert..........nitrogen, etc. the assessment year is 1973-74. the sales turnover of the petitioner relating to carbon dioxide was brought to tax under section 5(1) of the karnataka sales tax act, 1957 (hereinafter referred to as 'the act'), at the rate of 3 1/2 per cent by the assessing authority. the deputy commissioner was of the opinion that the order of the assessing authority was erroneous and prejudicial to the revenue. therefore in exercise of his power under section 21 of the act he proposed to revise the order as in his opinion carbon dioxide was liable to tax at 6 per cent under entry 121 of the second schedule to the act. the said entry reads as follows : 'industrial gas, such as oxygen, acetylene, nitrogen and the like.' before the revisional authority the petitioner contended that.....
Judgment:

Rama Jois, J.

1. In this revision presented under section 23(1) of the Karnataka Sales Tax Act, 1957, the following question of law arises for consideration :

'Whether carbon dioxide falls under entry 121 of the Second Schedule to the Karnataka Sales Tax Act, 1957, for purposes of levy of tax under the said Act ?'

2. The facts of the case are as follows : The petitioner deals in industrial gases like oxygen, nitrogen, etc. The assessment year is 1973-74. The sales turnover of the petitioner relating to carbon dioxide was brought to tax under section 5(1) of the Karnataka Sales Tax Act, 1957 (hereinafter referred to as 'the Act'), at the rate of 3 1/2 per cent by the assessing authority. The Deputy Commissioner was of the opinion that the order of the assessing authority was erroneous and prejudicial to the revenue. Therefore in exercise of his power under section 21 of the Act he proposed to revise the order as in his opinion carbon dioxide was liable to tax at 6 per cent under entry 121 of the Second Schedule to the Act. The said entry reads as follows :

'Industrial gas, such as oxygen, acetylene, nitrogen and the like.'

Before the revisional authority the petitioner contended that carbon dioxide was used only in the preparation of aerated water and cannot be considered as an industrial gas. The contention of the petitioner was rejected. The further appeal of the petitioner was rejected. The further appeal of the petitioner before the Appellate Tribunal also failed. Thereafter the petitioner has presented this revision petition.

3. Sri K. Srinivasan, the learned counsel appearing for the petitioner, contended that though it cannot be disputed that carbon dioxide is an industrial gas, the same cannot be taxed under entry 121 of the Second Schedule for the reason that apart from merely specifying 'industrial gas', the entry proceeds to state 'such as oxygen, acetylene, nitrogen and the like'. He therefore contended that any other industrial gas cannot be brought under entry 121. He submitted that the principles of ejusdem generis should be applied and consequently any industrial gas, which is combustible like oxygen and acetylene, alone could be brought under entry 121 of the Second Schedule.

4. In our opinion, the principle of ejusdem generis is not at all attracted for the interpretation of entry 121 of the Second Schedule to the Act. In order to attract the principle of ejusdem generis, there must be a genera followed by specification of some of the species which belong to the said genera. It is only in such circumstances, the subsequent words would have to be interpreted in the light of the preceding word which indicates the genera. But when two or more words used one after another are independent of each other and do not fall within one genera, the rule of ejusdem generis cannot at all be invoked : see Rajasthan State Electricity Board v. Mohan Lal : (1968)ILLJ257SC and Mangalore Electric Supply Co. Ltd. v. Commissioner of Income-tax, West Bengal : [1978]113ITR655(SC) .

5. The learned counsel for the petitioner, however, contended that having regard to the gases specified against the entry, there is a genera contemplated, i.e., 'combustible gas' and, therefore, carbon dioxide being non-combustible cannot fall within that entry. This submission has no force. The entry specifies not only oxygen and acetylene, but also nitrogen. Nitrogen gas is not a combustible gas. Webster's Third New International Dictionary, at page 1531, gives the properties of nitrogen as 'colorless, odorless, tasteless, insoluble, inert diatomic gas of the atmosphere'.

It is well-known that nitrogen has various industrial uses one of which is its use in electric lamps. Nitrogen therefore is an inert, i.e., non-combustible gas. As far as oxygen and acetylene are concerned, they are certainly combustible and in combination they are used to produce flame required for purposes of metal cutting, welding, etc. Therefore, it is difficult to accept the submission that the entry comprehends only combustible gases.

6. On the question that carbon dioxide constitutes industrial gas, there is no dispute. In fact even before the authorities, the submission of the petitioner was that carbon dioxide did constitute an industrial gas, but was not similar to oxygen, acetylene and nitrogen. Therefore, in our opinion, the mere specification of three types of gases, namely, oxygen, acetylene and nitrogen, in the entry does not in any way help the construction suggested by the petitioner that notwithstanding carbon dioxide being an industrial gas, it cannot be taxed under the said entry. The facts of the case disclose that the petitioner was using carbon dioxide in the manufacture of aerated water. Therefore carbon dioxide being a gas used in an industry, namely, in the manufacture of aerated water, was liable to be taxed under entry 121. In our view, the Deputy Commissioner was right in holding that the order of the assessing authority was erroneous and prejudicial to the revenue. Consequently, the Tribunal was also right in confirming the said order.

7. In the result, we make the following order :

(i) Revision petition is dismissed.

(ii) No costs.

8. Petition dismissed.


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