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J.B. Advani-oerlikon, Electrodes, Pvt. Ltd. Vs. the Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case Number Miscellaneous Civil Case No. 173 of 1970
Judge
Reported in1972MPLJ830; [1973]30STC337(MP)
AppellantJ.B. Advani-oerlikon, Electrodes, Pvt. Ltd.
RespondentThe Commissioner of Sales Tax
Appellant Advocate D.M. Dharmadhikari, Adv.
Respondent Advocate M.V. Tamaskar, Deputy Government Adv.
Cases ReferredDeputy Commissioner of Commercial Taxes v. Ravi Auto Stores
Excerpt:
.....to be used for gas welding and the rod designed by the assessee will be more expensive to be used. however, on behalf of the department, it was argued that the assessee's electrode is essentially designed for use of electricity only, so that it is within the purview of 'electrical goods'.11. from the above narration, it appears to us that the welding material manufactured by the assessee, although called by him electrode, is not really electrode in the true sense of the word and to call the assessee's welding rod as electrode is clearly a misnomer. 18. we are clearly of the view that the so-called electrodes manufactured by the assessee, in the present case, are really not electrodes but are welding material in the form of rods......of the m. p. general sales tax act, 19582. the assessee manufactures what he calls 'electrodes', a welding material. the total turnover of sale of these electrodes amounted to rs. 11,59,467.80. the sales tax authorities treated the electrodes as 'electrical goods' within the meaning of entry 30 of part ii of schedule ii of the act.3. by an order of this court dated 13th october, 1971, the tribunal was directed to make a fresh statement of the case inasmuch as the statement initially made was found incomplete. three months' time was granted. a further statement dated 19th january, 1972, has come from the tribunal.4. it is abundantly clear from the further statement of facts which has now been received that what the assessee calls 'electrode' is really welding material. the process of.....
Judgment:
ORDER

Shiv Dayal, J.

1. This is a reference under Section 44(1) of the M. P. General Sales Tax Act, 1958 (hereinafter called the Act), at the instance of the assessee (applicant). The following question, which has been referred, arose out of the order dated 23rd July, 1967, passed by the Sales Tax Tribunal:

In the facts and circumstances of the case, whether the electrodes which are manufactured and marketed by the appellant could be treated as electrical goods falling in entry No. 30 of Part II of Schedule II of the M. P. General Sales Tax Act, 1958

2. The assessee manufactures what he calls 'electrodes', a welding material. The total turnover of sale of these electrodes amounted to Rs. 11,59,467.80. The sales tax authorities treated the electrodes as 'electrical goods' within the meaning of entry 30 of Part II of Schedule II of the Act.

3. By an order of this court dated 13th October, 1971, the Tribunal was directed to make a fresh statement of the case inasmuch as the statement initially made was found incomplete. Three months' time was granted. A further statement dated 19th January, 1972, has come from the Tribunal.

4. It is abundantly clear from the further statement of facts which has now been received that what the assessee calls 'electrode' is really welding material. The process of welding consists of joining two metal pieces by means of intense heat applied to them along with a welding material. The portions of the metal pieces to be welded and the welding material are fused as a result of intense heat and the two metal pieces are joined together. Material which is called 'flux' is used in the process, its function being to clean the metal surfaces and to give a certain fluidity to the welding material. The chemical composition of the flux may vary as also of the welding material. The latter, i e, the welding material, is some metal while the flux is not a metal, though it may consist of some metallic powder mixed with other non-metallic chemical ingredients.

5. Heat for welding may be generated by burning of gas as in any oxy-acetylene flame or by electricity.

6. Electrodes are used in pairs, one for the positive terminal and the other for the negative terminal, although they need not be used in a pair of two identical units. According to Cripsin's Dictionary of Technical Terms, an 'electrode' is :

A pole of a battery or magnet, either positive or negative (weld). The part or parts of a resistance welding machine through which the welding current and pressure are applied directly to the work.

In Van Nostrand's Scientific Encyclopedia, 'electrode' is described thus :

Electrode. In an electric circuit, part of which is composed of other than the usual conductor of copper, or other metal, the terminal connecting the conventional conductor and the conducting substances is an electrode. Examples of electrodes are to be found in the electrical cell, where they dip in the electrolyte; the electric furnace, where the electrodes connect the external circuit with the heating arc; and the metallic elements in thermionic tubes and gas-discharge devices, and in semiconductor devices, where they perform one or more of the functions of emitting, collecting or controlling by an electric field the movements of electrons and ions.

7. What the assessee manufactures is a rod with a metallic core surrounded by compressed flux consisting of some metallic powder and other ingredients. Now, the surrounding material does not conduct electricity. A demonstration was given to the learned Member of the Board of Revenue, who personally paid a visit to the factory. He says that, in the factory, the manager fixed an electrode in the electric holder which was connected to one end of the generator, the other end being connected to the metal plate to be welded which was earthed. The manager showed that if the flux coating of the electrode was touched, there was no shock of electric contact. He further showed that if the metal tips of the electrode touched the earthed metal plate, the circuit was complete but there was no arc and, therefore, no heating. The arc is generated by leaving an air gap between the electrode tip and the plate. The air gap has a high resistance and the electric current jumping across the gap produces intense heat. By the heat, the electrode itself is melted and gives out the welding material. Thus, the welding rod manufactured by the assessee combines in it the metallic welding material and the flux. The welding rod is itself consumed in the process of welding. It is true that it carries electricity to the air gap.

8. This welding rod can be used for welding by gas as well, although it is not so used because a simple metal rod along with flux is the proper thing to be used for gas welding and the rod designed by the assessee will be more expensive to be used.

9. There are three kinds of rods which are used for welding: (i) A simple rod for ordinary gas welding with flux used separately; (ii) a welding rod in which flux is packed for overhead gas welding; and (iii) the welding rod manufactured by the assessee, which is a rod combining metal and flux, consumed in welding and itself carrying electricity to produce an arc.

10. It was urged for the assessee that his electrodes are not and cannot be used as electricity carrying terminals, apart from the process of welding. However, on behalf of the department, it was argued that the assessee's electrode is essentially designed for use of electricity only, so that it is within the purview of 'electrical goods'.

11. From the above narration, it appears to us that the welding material manufactured by the assessee, although called by him electrode, is not really electrode in the true sense of the word and to call the assessee's welding rod as electrode is clearly a misnomer.

12. Entry 30 of Part II of Schedule II to the M. P. General Sales Tax Act reads as follows :

All kinds of electrical goods, including torch, cells, casing, lighting bulbs, electrical earthenware, porcelain and all other accessories but excluding articles specified in entry 30-A of this part.

The words 'electrical goods' are not defined in the Act.

13. Now, for the purposes of sales tax, the point for consideration is not whether 'electrode', as defined in the dictionaries of technical terms, is electrical goods or not. What is to be seen is whether the material produced by the assessee is electrical goods by whatever name he calls it. The conclusion we have reached is that the assessee's welding rod is not an electrode in its real sense.

14. Where a word is not defined in the Sales Tax Act, but is a word of every day use, it must be construed in its popular sense meaning ' that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it. 'In the leading case of Ramavatar Budhaiprasad v. Assistant Sales Tax Officer [1961] 12 S.T.C. 286 (S.C) their Lordships had to consider whether betel leaves are vegetables within the meaning of item 6 of Schedule II of the C. P. and Berar Sales Tax Act, 1947. Their Lordships said:

But it was submitted that betel leaves are vegetables and therefore they would be exempt from sales tax under item 6. Reliance was placed on the dictionary meaning of the word 'vegetable' as given in Shorter Oxford Dictionary where the word is defined as 'of or pertaining to, comprised or consisting of, or derived, or obtained from plants or their parts'. But this word must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance.

15. It was emphasised for the State that the assessee's welding rod cannot be used without electricity, but, in our opinion, that is not decisive. In order to name an article as 'electrical goods' two things are necessary : (1) Its use cannot be had without electrical energy; and (2) by its very nature it answers the description of electrical goods. For instance, a lathe fitted with electric motor cannot be used except with electric power, but it cannot be said to be electrical goods. Likewise, a motor car cannot be used without a battery or a dynamo fitted to it, but a motor car is never called electrical goods. So also, in electro-plating a solution of silver and gold particles is used, through which electricity is passed in the process of electro-plating. That process of electro-plating cannot be done without the use of electricity. Even so the silver or gold particles are never called 'electrical goods' by themselves. So also the welding rod manufactured by the assessee is a welding material in the shape of rod.

16. In State of Andhra Pradesh v. Indian Detonators Ltd. [1971] 28 S.T.C. 84 the Andhra Pradesh High Court had to consider whether electric detonators are 'electric goods' falling within entry 37 of Schedule I to the Andhra Pradesh General Sales Tax Act, 1957. A 'detonator' is an explosive accessory for initiating high explosives. It is used for blasting purposes and is issued only against special licence to be obtained by persons concerned with blasting or mining operations. It contains chemical composition inside a metallic tube, whether aluminium or copper, which is closed at one end. In this tube are compressed two charges of initiating explosives successively. One is base charge and the other is priming charge. The chemical mixture in each of them is somewhat different from the other. The tube with explosives thus compressed thereinto forms a 'detonator'. In order that this detonator may function, it is necessary that the explosive chemicals therein should be ignited. This ignition is effected in more than one way. One of the methods of igniting it is to provide a train of black powder called 'safety fuse' which would carry a flame from a point sufficiently away from the explosives to the initiating explosives. This method under certain circumstances, especially in an atmosphere of explosive mixture of gases, proves hazardous. The detonators which are to be used under such conditions are provided with facilities to ignite them by passing electric current and they are on that basis called 'electric detonators', the first of the kind being ordinary detonators. In the Andhra Pradesh case, the assessee-company manufactured both types' of detonators. The electric detonators were provided with two metal strips which were held together and separated from each other by means of insulating material. To one pair of ends of these strips were soldered leading wires. The other pair of ends were joined together by means of a high resistance nichrome wire. This wire was called 'bridge wire'. The bridge wire was surrounded by a mixture of charcoal and other ingredients. On passing the electric current through the leading wire and the bridge wire, the bridge wire glew and ignited the mixture of chemicals giving a hot flash on ignition. This hot flash was conveyed to the priming charge, the ignition of which, in turn, exploded the base charge. The shock energy available in the detonation of these two charges was conveyed to the explosive cartridge within which was buried the detonator. This caused the explosion that was utilised in commercial blasting practices. That was how the nature and the kind of detonator manufactured by the assessee had been described by an expert whose opinion formed part of the record of that case. The High Court observed as follows ;

Practically, there is no difference between ordinary and electric detonators so far as detonator or explosive portion is concerned. The combination of chemicals compressed in the metallic casting in both the kinds of detonators is essentially the same. If at all there is any difference between the two kinds of detonators, it is in the method of setting off the detonators. While for ignition of the priming charge flame is carried through the safety fuse in the ordinary detonators, in the case of electric detonator the flame is produced from passing electric current through its fuse end. The difference in the mode of ignition in the two types of detonators in no way affects the explosive potency of the chemicals therein. In other words, the efficiency of the detonator is unaffected and would be the same, whether it is ignited by electric current or ordinary flame because the explosion is caused by the chemicals whether the fuse is ignited by means of mechanical device or electricity.

The expression 'electrical goods' was not defined in the Act. The Andhra Pradesh High Court held as follows :

In our judgment, the apporach of the Tribunal to the problem is correct. The appellate authority was no doubt impressed greatly by the fact that the electrical detonator cannot be used without electrical energy. But before that test is applied, it is essential that the goods must be capable of being classified as electrical goods. It may be that certain goods cannot be used without electrical energy; yet they need not necessarily be electrical goods.

17. The learned Deputy Government Advocate relied on Bansilal Agarwal and Bros. v. Commissioner of Sales Tax [1958] 9 S.T.C. 100. There, the question was whether a torch battery cell was electrical goods within the meaning of item 30 of the Schedule to the Madhya Bharat Sales Tax Act, 1950. The entry there read as follows :

^^fctyh dk gj fdleh lkeku ftlesa cYc lfEefyr gSA**

(When rendered into English it reads as follows : 'Electrical goods of every description including bulbs.')

That case is not apposite to the present case.

18. We are clearly of the view that the so-called electrodes manufactured by the assessee, in the present case, are really not electrodes but are welding material in the form of rods. No one in common parlance will call them electrical goods. The view we take was also taken in Deputy Commissioner of Commercial Taxes v. Ravi Auto Stores [1968] 22 S.T.C. 172 by the Madras High Court.

19. Our answer to the question referred is as follows:

On the facts and in the circumstances of the case, the so-called electrodes, which are manufactured and marketed by the appellant (assessee) could not be treated as electrical goods falling in entry No. 30 of Part II of Schedule II of the M.P. General Sales Tax Act, 1958.

Parties shall bear their own costs.


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