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Agrawal Tyre Stores Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case Number Miscellaneous Civil Cases Nos. 134, 135 and 332 of 1976
Judge
Reported in[1979]43STC425(MP)
AppellantAgrawal Tyre Stores
RespondentCommissioner of Sales Tax
Appellant Advocate K.A. Chitale, Adv.
Respondent Advocate S.R. Joshi, Government Adv.
Excerpt:
- - hence the stand taken by the assessee in this case as well as the dealers under similar circumstances that rubber used for retreading is not an article of rubber so as to fall squarely within the meaning of entry 36 of part ii of schedule ii, but it is only goods, which is not specifically provided for either in schedule i or in parts i to v of schedule ii of the act. ), a milk-like fluid that is obtained from certain tropical shrubs or trees and then subjected to various processes of manufacture ;or it may be a product of chemical synthesis......case. the pertinent point is whether rubber used for retreading is or is not an article made of rubber. entry 36 referred to above takes in sheets, cushions, pillows, mattresses and other articles made of rubber. the rubber may be of any variety or form, such as ordinary rubber, foam rubber, plastic foam or other synthetic foam or rubberised coir. after specifying certain categories of rubber, namely, sheets, cushions, pillows and mattresses, the legislature designedly thought fit to include the expression 'other articles made of rubber' so as to take in all other articles made of rubber, foam rubber, plastic foam, other synthetic foam or rubberised coir. the intendment of the legislature is clear and distinct in visualising all other articles made of any varieties of rubber.....
Judgment:

C. Kondaiah, J.

1. These three references under Section 44(1) of the M. P. General Sales Tax Act, 1958 (hereinafter called the Act), relate to the same assessee-applicant for the assessment years 1959-60, 1960-61 and 1961-62 respectively and the question of law is one and the same arising under similar circumstances in each of the three years. Hence we propose to dispose of the same by a common order.

2. The question of law raised in these references is :

Whether sales of rubber used for retreading of tyres are covered under entry 36 of Part II of Schedule II of the Madhya Pradesh General Sales Tax Act, 1958 ?

3. In order to appreciate the scope of the question, it is not only profitable but necessary to state briefly the admitted facts and circumstances that gave rise to the legal question. The applicant-assessee, M/s. Agrawal Tyre Stores, Indore, is a registered dealer under Clause (m) of Section 2 of the Act selling tyres, tubes, motor parts and rubber used for retreading of old tyres. The Sales Tax Officer, who originally assessed the applicant-dealer, levied tax at 4 per cent on the turnover of sales of such rubber under the residuary entry, namely, Part VI of Schedule II, on the assumption that the commodity was not covered by any specific entry in Schedule II. Notices in form No. XVI were issued in respect of the assessment years in question for revising the assessments made earlier under Section 19(1) of the Act on the ground that there was underassessment in each of the- years in question as tread rubber should have been assessed at 7 per cent instead of at 4 per cent. The assessee objected to the revision of the assessment on two grounds, namely:

(1) That the proceedings under Section 19(1) of the Act are barred by limitation; and

(2) The assessing officer, who made the initial assessment, had applied his mind to the facts of the case and came to the conclusion that tread rubber was raw rubber assessable under the residuary article and a mere change of opinion does not furnish a ground for reopening the case under Section 19(1) of the Act.

Rejecting the contentions raised by the applicant-assessee, the assessing officer held that the tax must be levied on the turnover pertaining to the sales of rubber used for retreading of old tyres at 7 per cent applying the provisions of entry 36 of Part II of Schedule II of the Act and revised the assessment accordingly. The appeals preferred by the dealer before the Appellate Assistant Commissioner of Sales Tax and the second appeals to the Board of Revenue were not successful. The submission of the assessee that the rubber used for retreading was not an article made of rubber and hence it is not covered under entry 36 of Part II of Schedule II of the Act was not acceded to by the appellate authorities, who agreed with the finding of the Sales Tax Officer that the rubber used for retreading of tyres was an article made of rubber and, consequently, taxable at 7 per cent. Aggrieved by the decision of the Board of Revenue, the dealer filed the reference applications to the Board of Revenue under Section 44(1) of the Act for submitting a statement of the case on the question of law raised by it for the opinion of this Court. Hence these references.

4. The answer to the question largely depends upon the scope and meaning of the expression 'other articles made of rubber' used in entry 36 of Part II of Schedule II of the Act and its application to the facts of the present case. The pertinent point is whether rubber used for retreading is or is not an article made of rubber. Entry 36 referred to above takes in sheets, cushions, pillows, mattresses and other articles made of rubber. The rubber may be of any variety or form, such as ordinary rubber, foam rubber, plastic foam or other synthetic foam or rubberised coir. After specifying certain categories of rubber, namely, sheets, cushions, pillows and mattresses, the legislature designedly thought fit to include the expression 'other articles made of rubber' so as to take in all other articles made of rubber, foam rubber, plastic foam, other synthetic foam or rubberised coir. The intendment of the legislature is clear and distinct in visualising all other articles made of any varieties of rubber indicated, therein to fall under entry 36. The use of the words 'other articles' is comprehensive enough to take in any kind of articles made of rubber. The words in this entry or any other entry in Schedule II of the Act must be given a wide import so as to take in within its hold all the varieties of the articles indicated therein. It is not possible to give a limited or restricted meaning to the expression 'other articles made of rubber'. In order to exclude the application of entry 36 and take shelter under the residuary provision, i.e., item 1 of Part VI of Schedule II of the Act, which can be applied to cases of goods not included in Schedule I or items in Parts I to V of Schedule II of the Act, it must be held that none of the specific entries in Schedules I and II is attracted. The rate of sales tax envisaged under entry 36 of Part II of Schedule II is 7 per cent, whereas under the residuary entry, namely, Part VI of Schedule II, was 4 per cent at the material time in respect of the assessment years in question. Hence the stand taken by the assessee in this case as well as the dealers under similar circumstances that rubber used for retreading is not an article of rubber so as to fall squarely within the meaning of entry 36 of Part II of Schedule II, but it is only goods, which is not specifically provided for either in Schedule I or in Parts I to V of Schedule II of the Act.

5. We shall now examine the submission of the learned counsel for the applicant, Shri K. A. Chitale, that rubber used for retreading is not an article of rubber. According to the learned counsel, this entry 36 does not take in any raw material. It takes in only finished articles of rubber. We may notice in this context that the words 'articles' and 'rubber' are not defined under the Act or the Rules made thereunder. Hence it is appropriate for the court to look into the ordinary meaning of these terms as given in the dictionaries.

6. According to Encyclopaedia Britannica, Vol. 19, Edition 1968, page 680, 'rubber' is the substance caoutchouc (q. v.), a milk-like fluid that is obtained from certain tropical shrubs or trees and then subjected to various processes of manufacture ; or it may be a product of chemical synthesis. The word 'article' is used in entry 36 as a noun. The meaning of the word 'article', as a noun, which is material and appropriate in the context that has been used herein, may be noticed from the Corpus Juris Secundum, Webster's Unified Dictionary and Encyclopaedia, the Shorter Oxford English Dictionary, and Chambers's Twentieth Century Dictionary :

(1) Corpus Juris Secundum, Vol. 6, page 774.-As applied to specific objects or things, it has been defined as a material thing as part of a class, or, absolutely, a particular substance or commodity, particular object or substance, a material thing or a class of things, having reference, in a particular connection, to a particular product generically, or to individual containers.

(2) Webster's Unified Dictionary and Encyclopaedia, Vol. I, 1970 Edition, page 132.-A particular substance or commodity.

(3) The Shorter Oxford English Dictionary, Vol. I, 1973 Edition, page 110.-A distinct part or portion; a piece, a particular.

(4) Chambers's Twentieth Century Dictionary, 1976 Edition, page 71.- A particular object or commodity, an item.

7. The meaning of the word 'article' is of wide import so as to take in any distinct part or portion of a piece, a particular object or commodity, an item. In the context in which this expression has been used in entry 36, we have no hesitation to hold that it would take in all kinds of articles of rubber, be they raw material or finished goods. Sheets, cushions, pillows and mattresses made out of rubber or foam rubber are admittedly articles made of rubber within the meaning of entry 36. The aforesaid items have been specified by the legislature itself. By the use of the expression 'other articles made of rubber' the legislature intended to apply this provision to all other kinds of articles made of rubber or foam rubber instead of specifically mentioning the same in entry 36. In the circumstances, we are in entire agreement with the view expressed by the Board of Revenue and the sales tax authorities that the rubber used for retreading of tyres is an article made of rubber and, consequently, the turnover of sales of rubber used for retreading tyres is covered under entry 36 of Part II of Schedule II of the Act and, therefore, the sales tax authorities are within their bounds in levying sales tax on such sales turnover by the applicant-dealer herein at the rate of 7 per cent applying the provisions of entry 36, rejecting the claim of the assessee to fall back upon the residuary entry providing for lesser rate of taxation, namely, 4 per cent.

8. For all the reasons stated, our answer to the question is in the affirmative and in favour of the sales tax department and against the assessee-dealer holding that the sales of rubber used for retreading of tyres are covered under entry 36 of Part II of Schedule II of the Act. The assessee shall pay the costs of these references. Counsel's fee Rs. 100 in each case, if certified.


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