B.J. Divan, C.J.
1. The petitioner herein is a partnership firm carrying on business in Bombay. The firm purchases metals, etc., in the State of Andhra Pradesh also in the course of its business. It is a registered dealer both under the Maharashtra General Sales Tax Act and the Central Sales Tax Act. The Naval Stores Depot at Visakhapatnam in Andhra Pradesh, a section or part of Central Government in Defence Department, through M/s. Murray & Co., Madras, had put up for sale by auction on 30th October, 1974, at the depot at Visakhapatnam, several items of articles for sale. As many as 30 items were notified in the notice of sale. Item No. 16 in the notice referred to 'Imported Wet Batteries' approximate size 66 x 36 x 100 cms., weight of each battery : 505 kgs., total weight of batteries : 2,27,755 kgs., location of 448 Nos. at Energy Bloc and 3 Nos. at NSD-V, in all 451 in number. According to the petitioner, these batteries are unserviceable and may not be used as batteries for generation of power, but are useful for the salvaging of their 'lead content'. In the terms and conditions of sale relating to item No. 16, i. e., 451 imported wet batteries, the direction with regard to the payment of sales tax was scored out and it was specifically stated that no tax was payable by the purchaser. It was also certified In the sale release order issued by the Senior Naval Officer of the Naval Stores Depot, Visakhapatnam, that the sales tax leviable on these stores would be paid by the Indian Navy to the Comptroller of Defence Accounts (Navy), Bombay, on receipt of demand notice from the commercial tax authorities through the State Government. It is the petitioner's contention that the sales tax actually included the levy amount paid by the petitioner in countervailing duty of 17 1/2 percent on the bid amount and 75 per cent thereon payable as customs duty, when all these amounts are put together. The petitioner's bid for the entire lot of 451 unserviceable batteries for a sum of Rs. 5,24,000 was accepted and the petitioner paid the whole amount and also an additional amount of Rs. 5,53,475 as customs duty. Thus, the aggregate amount of Rs. 10,77,475 was paid by the petitioner to the naval authorities. After this aggregate amount was paid, the Naval Stores Depot issued the release order for the 451 unserviceable batteries to the petitioner.
2. The petitioner's firm undertook to sell these imported 451 batteries to M/s. Metal Smelting Company of Calcutta for a commission or profit of one percent on the amount incurred by it and the delivery was to be effected in Calcutta. In accordance with the said agreement, the petitioner despatched 391 of these unserviceable batteries in 26 lorries, each lorry containing 15 batteries and an additional one in one of these. The carriers were given the way-bills containing the necessary particulars. Out of these 26 lorries, the first 17 lorries passed the check post in Srikakulam District of Andhra Pradesh State and the remaining 9 lorries were detained by the Commercial Tax Officer, Srikakulam, at the check post and the petitioners were obliged to give an amount of Rs. 32,600 on 6th December, 1974 and after the payment of the said sum, these nine lorries were allowed to proceed outside the State of Andhra Pradesh. Thereafter, the Commercial Tax Officer, Visakhapatnam, started proceedings against the firm and an amount of Rs. 1,33,310.62 was demanded provisionally so as to enable the release of the remaining 60 batteries. Thereafter correspondence ensued and ultimately the impugned order of assessment and demand notice for the balance of Rs. 1,00,710.62 were issued by the Commercial Tax Officer. It is under these circumstances that the petitioner has challenged the order of assessment of 18th January, 1975 and the demand notice and asked them to be quashed by an appropriate proceeding after calling for the records.
3. The Commercial Tax Officer has purported to assess these transactions on the footing that these unserviceable batteries, 451 in number, which were purchased by the petitioner-arm and particularly 60 batteries which were still remaining in the State of Andhra Pradesh, were batteries falling within item 1 of the First Schedule to the Andhra Pradesh General Sales Tax Act. At the point of first sale in the State, the rate of tax is 12 paise in the rupee. Item 1 in column (1) of the First Schedule describes the goods as follows:
Motor vehicles including motor cars, motor taxi-cabs, motor scooters, motorettes, motor omnibuses, motor vans and motor lorries, chassis of motor vehicles, bodies built on chassis of motor vehicles belonging to others (on the turnover relating to bodies), component parts of motor vehicles, articles (including batteries) adapted for use as parts and accessories of motor vehicles not being such articles as ate ordinarily also used for other purposes than as parts and accessories of motor vehicles.
4. It is clear that it is only batteries which are used on motor vehicles which are referred to in item 1 that are charged at the rate of 12 paise in the rupee under item 1. The very size of the batteries with which we are concerned in the instant case indicates that they are not batteries meant for motor vehicles. These batteries are 66 x 36 x 100 cms. in size, i. e., the batteries are 40 inches in height, 14 inches wide and 26 inches long. No vehicle falling within the description of ' motor vehicle' under item 1 is likely to use this type of battery. Moreover, the release orders dated 1st November, 1974, issued by the Commander of the Naval Stores Depot referred to the sale of salvage/scrap by public auction. Therefore, so far as the Naval Stores Depot was concerned, they treated these batteries as scrap.
5. It is true as is contended on behalf of the respondent by the learned Government Pleader that mere description by the parties concerned would not alter the real character of the particular item under consideration and that if they are, in fact, batteries, the fact that the party, Naval Stores Depot, chose to describe it as scrap would not make it scrap. However, we find in the instant case, that the imported wet batteries, 451 in number, were of such size and such weight that they would be useless for and cannot be used by any of the motor vehicles referred to in item 1. Even in lorries, it is impossible to use a battery which is 40 inches in height. It is obvious that these batteries are used for some ships or vessels of the Indian Navy and under these circumstances they cannot be said to be covered by item 1.
6. A faint attempt on behalf of the respondent was made by the learned Government Pleader that even if these wet batteries are not batteries falling within item 1 of the First Schedule, they would be electrical goods falling under item 38 of the First Schedule and liable to sales tax at 8 paise in the rupee. Item 38 is in these terms :
All electrical goods, instruments, apparatus and appliances including fans and lighting bulbs, electrical earthenware and porcelain and all other accessories.
7. It is obvious that the electrical goods, which are referred to in item 38, are apparatus, appliances and instruments and are not the source of electrical energy like a generator or a battery. It is difficult to conceive of a battery as being treated as electrical goods and, particularly, so far as the rest of the electrical goods mentioned in item 38 are concerned, the principle of noscitur a sociis will be applicable and, therefore, it has to be similar to other articles which are included in item 38. It is difficult to accept the contention of the learned Government Pleader that the batteries before us are electrical goods.
8. It is common ground between the learned counsel appearing before us that if the batteries are treated as scrap or even if they are found to be not falling under any specific entry in the First Schedule, they would be governed by the general entry and would be liable to sales tax at 4 paise in the rupee. It is, therefore, clear that the assessment order which has proceeded on the footing that the batteries in question are batteries covered by item 1 is wrong and must be quashed and set aside.
9. In the result, this writ petition is allowed and the impugned order of the Commercial Tax Officer and the demand notice consequent upon that order are quashed and set aside. The Commercial Tax Officer will now proceed to assess the transaction in accordance with the observations made in the course of this judgment. The respondent must pay the costs of this writ petition to the petitioner. Advocate's fee Rs. 150. Rule made absolute accordingly.