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Commissioner of Sales Tax Vs. Naini Glass Works - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case Number S.T.R. Nos. 766 and 767 of 1972
Judge
Reported in[1975]35STC517(All)
AppellantCommissioner of Sales Tax
RespondentNaini Glass Works
Appellant Advocate The Standing Counsel
Respondent Advocate S.N. Tandon, Adv.
Excerpt:
- - the american jar was exactly like the phial of pomade vaseline. sales tax act or the rules, or even the notification dated 1st october, 1965, does not define the term 'bottle'.it is well-settled that the goods, which are in common use and are not defined by the act or the rules, should be identified as understood in common parlance :see imperial surgico industries v. 12. it has been found that in some of the sale bills the assessee termed the article in question as jars, like 'american jar',honey jar',etc......this plea and dismissed the revisions.2. at the instance of the commissioner of sales tax, the revising authority has referred the following questions of law for the opinion of this court :(1) whether the additional revising authority was justified in law in holding the glass vessels manufactured and sold by the assessee which have no narrow neck and which were used for storing solids, pastes and semi-liquids to be bottles ?(2) whether, on the facts and in the circumstances of the case, when the dealer himself has shown the sale of jars in his bills, the learned additional revising authority was justified in law in holding the sales of such vessels to be sales of bottles and the assessee was estopped from claiming that they are bottles ?3. the notification dated 1st october, 1965,.....
Judgment:

Satish Chandra, J.

1. These two references relate to the assessment years 1966-67 and 1967-68. The assessee disclosed his turnover of Rs. 10,45,339 for the year 1966-67 and of Rs. 9,82,170 for the assessment year 1967-68 of own manufactured bottles. The Sales Tax Officer accepted the plea of the assessee that this turnover was liable to tax at 2 per cent as an unclassified item. Subsequently, the authorities discovered that the assessee in the bills of sales had designated the goods as 'jars'. Thereupon, the Commissioner of Sales Tax filed revisions on the ground that the turnover of 'jars' was taxable at 10 per cent as glassware. The commodity in question was not 'bottle' so as to be exempted under the notification dated 1st October, 1965. The Judge (Revisions) repelled this plea and dismissed the revisions.

2. At the instance of the Commissioner of Sales Tax, the revising authority has referred the following questions of law for the opinion of this court :

(1) Whether the additional revising authority was justified in law in holding the glass vessels manufactured and sold by the assessee which have no narrow neck and which were used for storing solids, pastes and semi-liquids to be bottles ?

(2) Whether, on the facts and in the circumstances of the case, when the dealer himself has shown the sale of jars in his bills, the learned additional revising authority was justified in law in holding the sales of such vessels to be sales of bottles and the assessee was estopped from claiming that they are bottles ?

3. The notification dated 1st October, 1965, provides for a rate of sales tax at 10 per cent in respect of 'glasswares other than hurricane lantern chimneys, optical lenses and bottles'.

4. According to the revising authority, the goods in question were bottles within the meaning of this entry and so they could not be taxed as glasswares. The goods in question were produced for inspection of the revising authority. The revising authority held :

Samples were shown to me at the hearing of these revisions. The American jar was exactly like the phial of pomade vaseline. The honey jar was the common container of popular brands of honey in the market. The other samples resembled quink vessels or phials of some face creams. Of course, the samples had comparatively wider mouth. The long narrow-neck of the old fashioned bottle was generally missing. Some samples gave the expression of uniformity of girth.

5. The Judge (Revisions) concluded that all the samples shown to him were ideally suited for use as packing materials and that they were commonly used as such material.

6. The U.P. Sales Tax Act or the Rules, or even the notification dated 1st October, 1965, does not define the term 'bottle'. It is well-settled that the goods, which are in common use and are not defined by the Act or the Rules, should be identified as understood in common parlance : see Imperial Surgico Industries v. Commissioner of Sales Tax [1969] 23 S.T.C. 201. The learned counsel for the assessee produced a few samples of the commodity in dispute. It was noticeable that these goods were glass containers with an arrangement of fixing a screw top or cap on top.

7. In Webster's New International Dictionary (Volume 1) at page 258 the word 'bottle' has been-given the following meanings :

Bottle-la : a rigid or semi-rigid container made typically of glass or plastic, having round comparatively narrow neck or mouth that usu. closed with a plug, screw top, or cap, and having no handle-contrasted with jar, jug; b : a non-rigid container resembling a bag, made of skin and usu. closed by tying at one end (nomads storing wine in goat skin).

8. In the same volume at page 1211 the word 'jar' has been explained to mean :

Jar-a rigid container having a wide mouth and often no neck and made typically of earthenware or glass.

9. It will thus be seen that one marked difference between the two, commonly known articles as 'bottle' or 'jar' is that the bottle has arrangement for stopper, while a jar does not necessarily have such a provision. Another noticeable thing is that it is now not necessary for a thing to be a bottle that its neck should be necessarily narrow. From the dealings of the assessee it appears that the containers were sold for being used for keeping vaseline, honey, face creams, etc. The containers were thus meant to be used for packing articles. Such goods would, in our opinion, fall under the description of article 'bottle', as commonly understood at present. The mere fact that their neck was not narrower than the rest of the body would not take them out of the category of bottle.

10. For the department it was urged that the goods in question were 'jars' and not 'bottles'. This submission was based on the feature that the articles in question do not have narrow necks but their necks were as wide as the girth. This, in our opinion, is not sufficient to take them out of the category of 'bottle', which is a term of general application. Since the notification does not separately treat the 'jar'' as a taxable commodity, it would, in our opinion, be appropriate to hold that the glass articles in question are within the general term 'bottle'.

11. Looked at from either point of view, the turnover of the commodity in question was rightly held to be 'bottle'. As such it was exempt from tax.

12. It has been found that in some of the sale bills the assessee termed the article in question as jars, like 'American jar', 'honey jar', etc. The Judge (Revisions) has, however, found that the assessee charged sales tax on the sales of these goods at the rate of 2 per cent. This would show that the assessee never acted on the basis that the articles were glassware, taxable at 10 per cent. The case of the assessee that the turnover of bottles would be taxable at 2 per cent as an unclassified item is not inconsistent with his dealings. No question of any estoppel arises. Our answer to the questions referred to us is that the revising authority was justified in holding the sales of the articles in question to be the sales of bottle and in further holding that the assessee was not estopped from claiming that they were bottles.

13. The assessee would be entitled to his costs, which we assess at Rs. 100 in each case.


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