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Commissioner of Sales Tax Vs. Sunshine Industries - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case Number Sales Tax Revision Nos. 807 and 808 of 1978
Judge
Reported in[1980]46STC92(All)
AppellantCommissioner of Sales Tax
RespondentSunshine Industries
Appellant Advocate The Standing Counsel
Respondent Advocate M.C. Gupta, Adv.
DispositionPetition allowed
Excerpt:
- .....rastogi, j.1. the respondent-assessee carries on the business of manufacture and sale of guilded glass beads. the assessment years involved are 1968-69 and 1969-70 and the following questions of law have been referred for the opinion of this court under section 11(3) of the sales tax act:(1) whether the guilded glass beads fall under the category of glasswares and taxable at 10 per cent under notification no. 905 dated 31st march, 1956 ?(2) if the answer to the above question is in the affirmative then whether the additional revising authority was legally justified to hold that the dealer was liable to pay tax at 2 per cent up to 30th september, 1969, and at 3 per cent from 1st october, 1969 ?2. in view of the recent amendment made in the act, these references will be treated as.....
Judgment:

R.R. Rastogi, J.

1. The respondent-assessee carries on the business of manufacture and sale of guilded glass beads. The assessment years involved are 1968-69 and 1969-70 and the following questions of law have been referred for the opinion of this Court under Section 11(3) of the Sales Tax Act:

(1) Whether the guilded glass beads fall under the category of glasswares and taxable at 10 per cent under Notification No. 905 dated 31st March, 1956 ?

(2) If the answer to the above question is in the affirmative then whether the additional revising authority was legally justified to hold that the dealer was liable to pay tax at 2 per cent up to 30th September, 1969, and at 3 per cent from 1st October, 1969 ?

2. In view of the recent amendment made in the Act, these references will be treated as revisions under Section 11(1) of the Act.

3. According to the assessee, guilded glass beads manufactured by it are not glasswares and sales of the same should not be taxed at the rate of 10 per cent under Notification No. S. T. 7094/X-1012 dated 1st October, 1965. According to the assessee they should be treated as unclassified item. The assessing authority did not accept this contention and treated guilded glass beads as glasswares. On appeal, the Appellate Assistant Commissioner (Judicial), Sales Tax, took the same view and for that he placed reliance on a decision of this Court which was rendered in Commissioner of Sales Tax, U.P., Lucknow v. Banaras Bead Manufacturing Co., Varanasi [1970] 25 S.T.C. 100.

4. Being aggrieved, the assessee filed a revision before the Additional Judge (Revisions), Sales Tax, Agra, and the latter accepted the assessee's contention. The learned revising authority has referred to the manufacturing process and the break up of the manufacturing cost and has come to the conclusion that guilded glass beads are a different commercial commodity than plain glass beads and has thus distinguished the decision in Banaras Bead Manufacturing Co. [1970] 25 S.T.C. 100. It has been further observed that the processed articles are not sold as glass beads but are sold as a material whose use, value and significance lie entirely in the chemical process and gold coating spread thereon.

5. After hearing counsel for the parties, I find that the view taken by the revising authority is not correct and the present case is squarely covered by the decision of this Court in Banaras Bead Manufacturing Co. [1970] 25 S.T.C. 100. There the question was whether glass beads could be included in glasswares as appearing in item No. 15 of Notification No. S. T. 905/X dated 31st March, 1956. Reference was made to the legislative history of this notification including Notification No. S. T. 1365/X-990 dated 1st April, 1960, which was issued subsequent to the assessment year 1957-58 involved in that case and it was observed:

It seems to us that in view of the consistent manner in which the State Government has considered glass bangles as distinct from 'glasswares' we must hold that the meaning of 'glasswares' is limited accordingly. But does that mean that 'glasswares' must be limited further Merely because glass bangles fall outside the meaning of 'glasswares' can it be said that 'glasswares' refer to glass containers only In our opinion, there is no justification for adopting that view.

6. It was further observed :

There is no doubt, as we have noticed, that glasswares must be limited to exclude glass bangles, and when glass bangles are mentioned in an entry separate from glasswares we should not expect the notification to use the language 'glasswares of all kinds'. Apart from this, the omission of those words cannot, in our opinion, lead to the conclusion to which the assessees seek to persuade us. Having regard to the contextual setting in successive notifications, when at first hurricane lantern chimneys and bottles were excluded from 'glasswares' and thereafter optical lenses were also excluded, it appears to us clear that 'glasswares' was intended to have a wider connotation than glass containers merely.

7. It was also noted that in the notification the entry speaks of 'kanch ka saman' and that was taken to lend support to the conclusion that the entry 'glasswares' must be taken to refer to all articles of glass except those specifically excluded in the entry and except glass bangles and articles of glass which can be considered as falling within other entries.

8. It was, however, submitted on behalf of the assessee by Sri M. C. Gupta that in taxing statutes such expressions should be understood in the sense in which they are taken in common parlance and guilded glass beads should be regarded as an item of artificial jewellery. I do not think that there is much substance in this submission. In Banaras Bead Manufacturing Co. [1970] 25 S.T.C. 100, a similar argument was advanced that glass beads are used only for the purpose of making necklaces and other articles of ornaments and for rosaries used for prayer and hence they should be treated as articles used for ornaments or for prayer and not as glasswares. That contention was repelled and it was observed that there was no such head and that the court could not take glass beads, which plainly are articles of glass, from the head 'glassware' to any supposed head.

9. Another submission made by Sri M. C. Gupta was that the aforesaid decision needs reconsideration in view of the amendments made in the schedule of rates by Notification No. ST-II-7218/X-6(43)-77-U. P. Act XV/48- Order-77 dated 30th September, 1977. The relevant entry is at serial No. 39, which is as under :

All goods and wares made of glass but not including plain glass panes, optical lenses, hurricane lantern, chimneys, bottles and phials, glass beads, clinical syringes, thermometers and scientific apparatus and instruments made of glass.

10. According to the learned counsel, in spite of the aforesaid decision in Banaras Bead Manufacturing Co. [1970] 25 S.T.C. 100, the legislature in its wisdom thought it fit to expressly exclude glass beads from glasswares which fact goes to show that even earlier the intention of the legislature was not to treat glass beads as glasswares. I am not inclined to accept this contention and I think that the decision in Banaras Bead Manufacturing Co. [1970] 25 S.T.C. 100 does not require any reconsideration.

11. That decision was rendered on the basis of the provisions as then existing and now when the legislature in its wisdom has excluded glass beads along with some other articles from glasswares, that does not mean that the heading 'glasswares' as occurring in the notification applicable for the years under consideration did not include 'glass beads. There can be various reasons which might have influenced the legislature in excluding glass beads and some other items from the category of glasswares. Respectfully following the decision in Banaras Bead Manufacturing Co. [1970] 25 S.T.C. 100, I hold that the entry glasswares in the notification mentioned in question No. (1) above must be taken to refer to all articles of glass except those expressly excluded in the entry and except glass bangles and articles of glass which can be considered as falling within other entries. Glass beads or for the matter of that guilded glass beads must be taken to be included in the entry 'glasswares'. As there is no such head as glass beads used for ornaments or rosaries, guilded glass beads cannot be taken away from the head glasswares. In my opinion, therefore, the revenue authorities have been right in treating the glass beads as falling in the category of glasswares, the sales whereof are taxable at 10 per cent. The view taken by the revising authority to the contrary is erroneous in law.

12. Both the revisions are hence allowed with costs which I assess at Rs. 200, one set.


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