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Commissioner of Sales Tax Vs. Burmah Shell Oil Storage and Distributing Co. of India - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case Number Miscellaneous Civil Case No. 129 of 1977
Judge
Reported in[1981]48STC54(MP)
AppellantCommissioner of Sales Tax
RespondentBurmah Shell Oil Storage and Distributing Co. of India
Appellant Advocate Surjit Singh, Government Adv.
Respondent Advocate Kamal Jain, Adv.
Cases ReferredDeputy Commissioner of Sales Tax v. Pai and Co.
Excerpt:
.....him to prove his innocence. conviction of appellant is liable to be set aside. - it is a good solvent for sulphur, phosphorus, resins, waxes, oils, and natural rubber. 25 of part ii of schedule ii to the act it was taxable under that entry is not well-founded......board of revenue has referred the following question of law for the opinion of this court :whether mineral turpentine falls under entry no. 39 of part ii or entry no. 25 of part ii of schedule ii appended to the m. p. general sales tax act, 19582. the facts giving rise to this reference briefly stated are as follows : the assessee, m/s. burmah shell oil storage and distributing company, was assessed to sales tax under the act for the calendar year 1967. mineral turpentine worth rs. 72,135 was sold by the assessee and tax was paid on this sale at the rate of 7 per cent. the assessing authority held that tax was payable on mineral turpentine oil at the rate of 11 per cent under entry no. 25 of part ii of schedule ii to the act. the assessee contended that this sale was liable to tax at the.....
Judgment:

R.K. Vijayvargiya, J.

1. By this reference under Section 44(1) of the M. P. General Sales Tax Act, 1958 (hereinafter referred to as the Act), the Board of Revenue has referred the following question of law for the opinion of this Court :

Whether mineral turpentine falls under entry No. 39 of Part II or entry No. 25 of Part II of Schedule II appended to the M. P. General Sales Tax Act, 1958

2. The facts giving rise to this reference briefly stated are as follows : The assessee, M/s. Burmah Shell Oil Storage and Distributing Company, was assessed to sales tax under the Act for the calendar year 1967. Mineral turpentine worth Rs. 72,135 was sold by the assessee and tax was paid on this sale at the rate of 7 per cent. The assessing authority held that tax was payable on mineral turpentine oil at the rate of 11 per cent under entry No. 25 of Part II of Schedule II to the Act. The assessee contended that this sale was liable to tax at the rate of 7 per cent under entry No. 39 of Part II of Schedule II. On appeal preferred by the assessee the Deputy Commissioner of Sales Tax confirmed the order of the assessing authority and dismissed the appeal. On further appeal by the assessee the Board of Revenue has held that the sale was liable to be taxed under entry No. 39 of Part II of Schedule II to the Act as contended by the assessee. At the instance of the department the Board of Revenue has referred the aforesaid question of law for the opinion of this Court.

3. The learned Government Advocate for the department contended that turpentine oil has been specifically mentioned under entry No. 25 of Part II of Schedule II to the Act and, therefore, it was rightly taxed by the assessing authority under that entry and the Tribunal was not justified in holding that it was liable to be taxed under entry No. 39 of Part II of Schedule II to the Act, which is a general entry. The learned counsel for the assessee contended that turpentine oil mentioned under entry No. 25 of Part II of Schedule II to the Act must take colour from the group of commodities which are dyes, paints, varnishes, lacquers, enamels, glue, paint-brush and sandpapers and that turpentine oil sold by the assessee was a petroleum product and, as such, it was liable to be taxed only under entry No. 39 of Part II of Schedule II to the Act.

4. The entries Nos. 25 and 39 of Part II of Schedule II to the Act as in force at the relevant time are as follows :

25. Dyes, paints, varnishes, lacquers, enamels, glue, paint-brush, sandpaper, turpentine oil, bale pil and polish other than boot polish.

* * *39. All kinds of petroleum products and mineral oils including kerosene oil except those which are liable to tax under the Madhya Pradesh Sales of Motor Spirit and Lubricants Taxtation Act, 1957.

The Board of Revenue considered the meaning of the word 'turpentine oil' as given in Webster's Third New International Dictionary, 1961 edition, and of the word 'mineral oil' as given in the said dictionary and came to the conclusion that the mineral turpentine oil sold by the assessee fell within entry No. 39 of Part II of Schedule II to the Act. The meaning of the words 'turpentine oil' and 'mineral oil' as given under Webster's dictionary is as follows:

Turpentine oil: the colorless or slightly yellowish mobile flammable pungent biting essential oil that is obtained by distillation from turpentine oleoresins esp. from longleaf, slash, and other pines, that is a mixture of terpenes with alpha-pinene usu. as the principal component, that oxidizes in air to a solid, and that is used chiefly as a solvent and thinner (as in paints and varnishes), as a raw material for synthetic camphor and other chemicals, and in medicine....'

Mineral oil: A liquid product of mineral origin that is within the viscosity limits recognised for oils (as petroleum, shale oil, or any oil obtained from them by refining).

Turpentine has been described in the Encyclopaedia Britannica (Volume 22), at page 414, as follows :

'Turpentine' in the resinous exudate or extract obtained from coniferous trees, particularly of the genus pinus. Turpentines are semifluid bodies consisting of resins dissolved in a volatile oil that are separable by distillation techniques into a volatile portion called oil (or spirit) of turpentine and a nonvolatile portion called rosin (or colophony). Although the term 'turpentine' or its shortened form 'turps' originally referred to the whole oleoresinous exudate (and it still carries this meaning in pharmacy), it now commonly refers to the volatile turpentine fraction. Familiar examples of true turpentines are Venice (or larch) turpentine (Larix decidua, syn. Larix europaea] and Canada balsam (Abies balsamea).

Oil of turpentine is a colourless, oily, odorous, flammable, water-immiscible liquid with a hot, disagreeable taste. It is a good solvent for sulphur, phosphorus, resins, waxes, oils, and natural rubber. On exposure to air, it hardens and may convert the oxygen into peroxides. Chemically, oil of turpentine is a mixture of cyclic monoterpene hydrocarbons, the predominant constituent being pinene.

The largest use for spirit of turpentine is as a paint and varnish solvent. Painters prefer 'turps' as a paint thinner and brush cleaner even though paint manufacturers use the cheaper petroleum solvents as thinners. Spirit of turpentine is used as a solvent for waxes and polishes and as an intermediate in the preparation of synthetic camphor, synthetic pine oil, oil additives, insecticides, and synthetic resins.

A purified form of oil of turpentine (oleum terebinthinae) is used as a constituent of stimulating liniments for sprains and bruises, whereas the oil itself is applied externally for the treatment of pleurisy and bronchitis. In veterinary medicine, it is used as a counter-irritant and antihelmintic for roundworms of horses, swine and dogs. Despite its long history in medicinal preparations, modern medicine finds little use for turpentine except in the form of derivatives.

5. Thus, the turpentine oil which is used in dyes, paints and varnishes is quite distinct in origin from mineral turpentine oil. The Board of Revenue observed that it is not disputed by the department that the mineral turpentine oil produced and sold by the assessee is a by-product arising out of the refined crude oil and as such it has the mineral origin. In the circumstances, the Board of Revenue did not commit any error in coming to the conclusion that the sale of turpentine oil by the assessee was taxable under entry No. 39 of Part II of Schedule II to the Act as a petroleum product and mineral oil,

6. The contention of the learned counsel for the department that as turpentine oil has been specifically mentioned in item No. 25 of Part II of Schedule II to the Act it was taxable under that entry is not well-founded. In entry No. 25 turpentine oil is clubbed with dyes, paints, varnishes, lacquers, enamels, glue, paint-brush and sandpapers and therefore it must receive colour from the words associated with it as held by a Division Bench of this Court in Commissioner of Sales Tax v. Truel Tubes, Indore [1980] 46 S.T.C. 473 (M. C. C. No. 327 of 1976 decided on 7th February, 1980), following the decision of the Supreme Court in Deputy Commissioner of Sales Tax v. Pai and Co. [1980] 45 S.T.C. 58 (S.C.). It is not the case of the revenue that the turpentine oil sold by the assessee had anything to do with dyes, paints, varnishes, etc., and as stated above it is not disputed that the turpentine oil produced and sold by the assessee is a by-product arising out of the refined crude oil and its origin is mineral oil. In the circumstances we are of the opinion that the Board of Revenue has rightly held that the mineral oil sold by the assessee was taxable under entry No. 39 of Part II of Schedule II to the Act.

7. Our answer, therefore, to the question referred to us is that, on the facts and in the circumstances of the case, the mineral turpentine comes under entry No. 39 of Part II of Schedule II to the Act. In the circumstances of the case the parties shall bear their own costs of this reference.


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