1. This is a reference under Section 44 of the Madhya Pradesh General Sales Tax Act, 1958, at the instance of the Commissioner of Sales Tax, Madhya Pradesh. The question which has been posed before us for answer is :-
Whether pind-khajur is dry fruit or preserved fruit
2. The material facts are that the assessee, Messrs Chhotelal Bharosilal of Gwalior, is a dealer in dry fruits and kirana. On the turnover of sales of pind-khajur during the period from 1st April, 1960, to 31st March, 1961, the firm was assessed to sales tax by the Sales Tax Officer, Gwalior, at the rate of 7 per cent, on the basis that pind-khajur was 'dry fruit' and fell under entry No. 24 of Part II of Schedule II to the Act. In appeal, the Assistant Commissioner of Sales Tax, Gwalior, upheld the view of the Sales Tax Officer. Both these taxing authorities rejected the contention of the assessee that pind-khajur was a fresh fruit falling under entry No. 18 of Schedule I to the Act and was exempted from tax.
3. In second appeal, the Sales Tax Tribunal held that pind-khajur was neither a fresh fruit nor a dry fruit but was a preserved fruit and consequently it was taxable at the rate of 4 per cent. under the residuary entry No. 1 of Part VI of Schedule II.
4. The relevant entries, as they stood at the material time, are as follows:
Entry No. 18, Schedule I-
Fruits other than preserved fruits, dried fruits and coconuts.
Entry No. 24, Part II, Schedule II-
Dry fruits excluding coconuts. Entry No. 1. Part VI, Schedule II-All other goods not included in Schedule I or any other part of this Schedule.
5. The Act does not define the words 'fruits' and 'dry fruits'. Those terms must, therefore, be understood in the sense they have in common parlance and in their popular meaning as understood by people who deal in the sale or purchase of fruits and dry fruits. (See Ramavatar v. Assistant Sales Tax Officer A.I.R. 1961 S.C. 1325. Now, it is well known that pind-khajur is nothing but the pulpy fruit of the date-palm which has been subjected to a process of boiling with sugar in order to prevent decomposition or fermentation. It is not the fresh fruit of the date-palm. When one goes to the market to purchase oranges, apples, mangoes and pind-khajur, one does not get any fresh or pulpy fruit of the date-palm along with oranges, apples and mangoes. It is also not a dry fruit like almonds, or walnuts or pistachios which have lost their natural moisture. Indeed, in the chemical process of boiling the date with sugar the moisture is dried to such a state that the possibility of organic decay is eliminated and an element of preservation is introduced. The dry fruit which one gets from dates has a hard brown rugged surface and is known in the market as 'chhuhara' or 'kharik'. Pind-khajur is thus neither a fresh fruit nor a dry fruit; but it is only a preserved fruit.
6. It is noteworthy that by the Madhya Pradesh General Sales Tax (Amendment) Act, 1964 (M.P. Act 9 of 1964), entry No. 18 of Schedule 1 was so amended to read thus :-
Fruits other than preserved fruits, dried fruits (including pind-khajur) and coconuts.
So also, entry No. 24 of Part II of Schedule II was amended and after the amendment it runs thus :-
Dried fruits including pind-khajur but excluding coconuts.
The amendments made and the use of the word 'including' in the amended items are not without significance. By the insertion of the word 'including' in entry No. 18 of Schedule I and entry No. 24 of Part II of Schedule II, the natural import and connotation of the words 'dry fruits' have been enlarged so as to include in the term 'dry fruits' pind-khajur. Without this artificial inclusion pind-khajur would not have fallen in the term 'dry fruits' as understood in its ordinary meaning. The amendment thus only reinforces the view that the natural meaning of the term 'dry fruits' does not cover pind-khajur. If, as we think, pind-khajur is a preserved fruit and not a dry fruit, then sales of pind-khajur cannot be taxed either under entry No. 18 of Schedule I or entry No. 24 of Part II of Schedule II. The relevant entry for taxing sales of pind-khajur is clearly the residuary entry, namely, entry No. 1 of Part VI of Schedule II.
7. Our answer to the question referred to us is that pind-khajur is preserved fruit. In the circumstances of the case, we leave the parties to bear their own costs of this reference.