G.P. Singh, J.
1. This is a reference made by the Sales Tax Tribunal under Section 44(1) of the Madhya Pradesh General Sales Tax Act, 1958. The question formulated in the reference is:
Whether phawadas are covered by item No. 1 of Separate Revenue Department Notification No. 736/3694/V-SR dated 1st April, 1959, and are exempt in serial No. 1 in Schedule I to the M. P. General Sales Tax Act, 1958?
2. The reference came up for hearing before a Division Bench, but as there was a conflict of decisions on the point involved in the reference, it was ordered to be placed for hearing before a Full Bench. This is how the case has come up before us.
3. The facts stated in the reference are that M/s. Narang Industries of Indore, the assessee, sold phawadas worth Rs. 7,611 during the account year 1962-63. The sales of phawadas were taxed by the Sales Tax Officer holding that phawadas do not come within the description of 'hoe', which is an item exempt from tax under a notification issued by the Government. The Appellate Assistant Commissioner, in first appeal, also took the same view, but the Tribunal, in second appeal, came to a different conclusion. It was held by the Tribunal that phawadas are hoes and are exempt from tax. Unfortunately, neither the statement of case nor the orders passed by the various authorities give any description of the phawadas sold by the assessee.
4. Section 10 of the Madhya Pradesh General Sales Tax Act, 1958, provides that no tax shall be payable on the sales or purchases of goods specified in the second column of Schedule I subject to the conditions and exceptions, if any, set out in the corresponding entry in the third column thereof. At serial number 1 the following description of goods exempt from tax appears in the Schedule:
Agricultural implements worked or operated exclusively by human or animal agency specified by the State Government by notification in the official Gazette.
The above description requires a notification by the State Government specifying the agricultural implements and the implements so specified can alone qualify for exemption. The relevant notification in this respect was issued by the State Government on 1st April, 1959, specifying the agricul tural implements for purposes of serial No. 1 of the Schedule. Item No. 1 in this notification is as follows:
Hoes (all kinds).
The question under consideration is, whether phawadas fall within the description of 'hoes (all kinds)' mentioned in the notification and are exempt from tax.
5. The expression 'hoes (all kinds)' is not defined in the Act or the Rules. We must, therefore, resort to the dictionary meaning of this expression. According to the Webster's Third International Dictionary a hoe is 'an agricultural implement that usually consists of a thin flat blade set transversely on a long handle and is used especially for cultivating, weeding or loosening the earth around plants.' Similarly, the Oxford Eng lish Dictionary defines hoe as 'an agricultural and gardening tool, consisting of a thin iron blade fixed transversely at the end of a long handle used for breaking up or loosening the surface of the ground, hoeing up weeds, covering plants with soil, and the like.' The Webster's Dictionary gives also a drawing illustrating hoe, which entirely resembles the phawada commonly used by agriculturists in our country. In a book entitled 'Agricultural Engineering for Extension Workers' published by the Direc torate of Extension, Ministry of Food and Agriculture, New Delhi, there are certain pictorial illustrations of agricultural implements, including that of a phawada. The picture of phawada given in this book is similar to the draw ing of hoe given in the Webster's Third International Dictionary. Phawada is commonly used by agriculturists for removing grass and weeds, for break ing or loosening the soft earth, for collecting earth and manure etc.
But apart from phawadas used by agriculturists, which consist of a thin flat blade with a long handle set transversely to it, instruments like a shovel and spade are also called phawadas. In the Webster's Dictionary a shovel is denned to mean 'a hand implement consisting of a broad scoop or a more or less hollowed out blade with a handle used to lift and throw material (as earth, coal, grain).' The dictionary also gives two drawings of shovel commonly in use. Two things distinguish a hoe from a shovel. In the case of hoe, the blade is flat and the handle is fixed transversely to the blade, where as in the case of shovel, the blade is hollowed out and the handle is almost in a vertical position to the blade. The meaning of spade in the Webster's Dictionary is 'an implement for turning soil resembling a shovel, adapted for being pushed into the ground with the foot and having a heavy usually flat and oblong blade.' The dictionary also gives a drawing of spade which is very much similar to shovel. Similar meanings are given of the words 'shovel' and 'spade' in the Oxford Dictionary. As already said the Hindi word 'phawada' is also used to convey the meaning of a shovel or spade. Reference in this connection may be made to Nalanda Current Dictionary (English to Hindi), where phawada is given as one of the synonyms of all the three English words hoe, shovel and spade. A spade which is used for digging, paring or cutting ground or turning soil is a garden instrument and may fall within the description of 'agricultural implements'. But yet it would be difficult to say that a spade comes within the description of hoe, for there is a marked distinction between these two implements. Similarly a shovel which is also very much dissimilar from hoe cannot be brought within the description of hoe.
In our opinion, therefore, phawadas, other than those which are spades or shovels, fall within the description of 'hoes (all kinds)' as contained in the notification.
6. The next point is, whether phawadas that are hoes qualify for exemption under serial No. 1, Schedule I, of the Act.
Learned counsel for the revenue in this connection argued that the assessee in addition to establishing that phawadas sold by him were hoes must also establish that phawadas were agricultural implements before he could succeed in claiming the exemption. In support of this argument, reliance was placed upon the case of Commissioner of Sales Tax v. Anil Iron Works 1968 M.P.L.J. 909. In this case a Division Bench held that though a phawada could be well described as a hoe, it could not fall within the exemption as a phawada was not an instrument which was principally and primarily used for agricultural purposes. The reasoning of the learned Judges is that even if an instrument falls within the list of agricultural implements notified by the State Government, the assessee must further establish that the instru ment is principally and primarily used for agricultural purposes to entitle him to the exemption from sales tax under serial No. 1 of the Schedule. It was also observed by the learned Judges that phawada is more freely used by building contractors, miners and the Public Works Department rather than by agriculturists, its main use being for collecting material and for mixing sand, cement, lime etc. with boulders and gittis. With respects, we are unable to agree with this line of reasoning.
7. The power of the State Government under serial No. 1 of Schedule I is to specify agricultural implements. Now, what types of implements are used by the agriculturists in the State which can be classified as agricultural implements is a matter on which the State Government can be presumed to have adequate information and it is expected that the Government will not specify any implement for purposes of serial No. 1 of Schedule I, unless it is satisfied that such an implement is really an agricultural implement. To begin with, there is always a presumption that a statutory power is validly exercised and an excess of jurisdiction in the exercise of a statutory power is not to be assumed.
For these reasons, the court must start with a strong presumption that an implement specified in the notification is really an agricultural imple ment. If it is contended by any person that a particular instrument so specified is not an agricultural implement, the burden would be on him to show that such is the case and the burden will not be on the assessee who claims an exemption by virtue of the notification. All that the assessee has to show is that the goods sold by him fall within the description of goods notified as agricultural implements. If he is able to satisfy that the goods sold by him do fall within one or more of the items specified in the notifica tion, he would be entitled to the exemption without proving specifically that the goods sold were agricultural implements, because, once it is shown by him that the goods fall within the description of the items mentioned in the notification, a strong presumption would arise that they are agricultural implements.
Thus, if in the instant case the assessee was able to satisfy the authori ties that the phawadas sold by him were hoes and not shovels or spades, he would be entitled to the exemption without proving further that the phawadas or hoes sold by him were agricultural implements.
8. We are also of the view that the presumption arising out of the notification cannot be rebutted merely by showing that a particular specified instrument is also used in a trade or calling other than agriculture. Thus, although it is true that phawadas are also used by building contractors or Public Works Department for spreading and mixing mortar, concrete or similar substances, that cannot negative the presumption that phawadas that are hoes are agricultural implements, for, such phawadas are also commonly used by agriculturists in agricultural operations. It is quite possible that an instrument may be commonly used in agriculture and also in some other trade. But even in that case, if the instrument is specified by the State Government as an agricultural implement, it must be held to be so and it would not at all be necessary to enquire whether the instrument is princi pally and primarily employed in agriculture. The test of ''principal and primary use' is adverted to in some cases in the context of the expression 'agricultural machinery' as used in entry 44, Part II, of Schedule II to the Act: (see, for example, Madhya Pradesh State Co-operative Marketing Society v. Commissioner of Sales Tax 1971 M.P.W.R. 76 at p. 81). But, in our opinion, that test is not relevant in connection with an article specified in a notification issued under serial No. 1 of Schedule I where one begins with a strong presumption that the instrument so specified is an agricultural implement.
9. We have already noticed that in dictionaries hoe is said to be an agricultural implement and phawada is mentioned as an agricultural imple ment in a book on the subject of agricultural engineering issued by the Government of India. It is also a matter of common knowledge that phawada is used by agriculturists in our country. In these circumstances, it cannot at all be held that the presumption arising in the instant case from the notifi cation has been rebutted or could be rebutted. We must, therefore, hold that phawadas that are hoes qualified for exemption under serial No. 1 of Schedule I.
10. We were also referred to the case of the Commissioner of Sales Tax v. Indore Iron and Steel Registered Stock-Holders' Association Misc. Civil Case No. 141 of 1967 decided on the 7th March, 1968. In this case another Division Bench of this court took the view that once an implement is specified in the notification, it is exempt from tax and it is not necessary to enquire further whether the implement is an agricultural implement or whether it is exclusively used for agricultural purposes.
In this connection, we have already said that the result of specifying an implement in the notification is that there is a strong presumption that the implement is an agricultural implement. But that does not mean that the notification is conclusive. The power of the State Government under serial No. 1 of Schedule I is only to specify agricultural implements by a notifica tion. If something which is obviously not an agricultural implement is specified to be so by the State Government, the Government would be acting in excess of the power conferred by the Schedule and the notification will not be valid. The burden to prove, however, that the implement specified is not an agricultural implement would be on those who contend that it is so and not on the assessee who wants to take the benefit of the notification.
11. As a result of the above discussion, our answer to the question is as follows:
Phawadas that are not spades and shovels fall within the description of 'hoes (all kinds)' and are covered by item No. 1 of Separate Revenue Department Notification No. 736/3694/V-SR dated 1st April, 1959, and are exempt from tax under serial No. 1, Schedule I to the Madhya Pradesh General Sales Tax Act, 1958.