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State of Orissa Vs. Harekrishna Das Madhavji and Co. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case NumberS.J.C. No. 63 of 1965
Judge
Reported in[1970]25STC509(Orissa)
AppellantState of Orissa
RespondentHarekrishna Das Madhavji and Co.
Appellant AdvocateStanding Counsel (Sales Tax)
Respondent AdvocateB.K. Mohanty, Adv.
Cases ReferredThe State of Orissa v. Jamula Srirangam
Excerpt:
.....(2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - if such ornaments are studded with precious stones like diamonds, emeralds, rubies, real pearls and saphires, then those would be excluded from the ambit of serial no. as the impugned ornaments come clearly within the ambit of serial no. 7. we are satisfied that the tribunal took the correct view......the learned tribunal has made the reference and the following has been referred :whether sale of gold ornaments, set with imitation stones or 'mina' engravings without any addition of precious stones are taxable under item no. 3f or under item no. 67 of the finance department notification no. 33927f dated 30th december, 1957.2. to appreciate the aforesaid question, serial nos. 3f, 28 and 67 may be extracted :sl. description of goods rate of tax3f. ornaments of personal twowear made of gold or per cent.silver or with mixture of gold and silver without any addition of precious stones namely,diamonds, emeralds, rubies, real pearls and saphires28. jewellery set with precious sevenstones, unset precious stones per cent.and real pearls67. any other articles five per cent.3. a critical.....
Judgment:

G.K. Misra, C.J.

1. The relevant quarter ends with 30th of June, 1959. Facts are not disputed. Respondent is a jeweller of Cuttack City. He sold some gold ornaments for personal use. Those ornaments were either studded with ordinary stones or were engraved with mina or were mixtures of both. The original assessing authority came to the conclusion that the assessee is liable to be taxed under serial No. 67 of the Schedule to the Notification No. 33927F dated 30th of December, 1957. In the meantime. serial No. 67 has been repealed; but we are not concerned with that. The first and second appellate authorities however came to the conclusion that the ornaments were assessable to tax under serial No. 3F. Against the adverse orders of the first appellate authority, the State of Orissa filed an appeal. Having lost in appeal, a reference was sought under Section 24 of the Orissa Sales Tax Act. The learned Tribunal has made the reference and the following has been referred :

Whether sale of gold ornaments, set with imitation stones or 'mina' engravings without any addition of precious stones are taxable under item No. 3F or under item No. 67 of the Finance Department Notification No. 33927F dated 30th December, 1957.

2. To appreciate the aforesaid question, serial Nos. 3F, 28 and 67 may be extracted :

Sl. Description of goods Rate of tax3F. Ornaments of personal Twowear made of gold or per cent.silver or with mixture of gold and silver without any addition of precious stones namely,diamonds, emeralds, rubies, real pearls and saphires28. Jewellery set with precious Sevenstones, unset precious stones per cent.and real pearls67. Any other articles Five per cent.

3. A critical examination of serial No. 3F would show that it comprises of all ornaments of personal wear made of gold or silver or with the mixtures of both. If such ornaments are studded with precious stones like diamonds, emeralds, rubies, real pearls and saphires, then those would be excluded from the ambit of serial No. 3F. If, on the other hand, such ornaments are studded with any other kind of stones or are simply engraved with mina or are simple ornaments, neither engraved with mina nor studded with stones, then those would come within the ambit of this serial. On the admitted facts that the ornaments intended to be assessed with tax were not studded with any of the precious stones enumerated in serial No. 3F, the taxation of such ornaments would come within the ambit of serial No. 3F and were liable to be taxed at the rate of two per cent.

4. Serial No. 28 covers cases of ornaments which are set with precious stones or unset precious stones or real pearls. The impugned ornaments do not come within this mischief.

5. It is too elementary that in a taxing statute if the taxable article or commodity comes within a specific serial, then the omnibus serial has no application. The first endeavour of the taxing authority would be to examine the various serials and see if the article would come within the ambit of any one. Only in cases where they cannot come within the ambit of any particular serial, then the residuary serial would apply. Serial No. 67 is residuary and speaks of any other articles. As the impugned ornaments come clearly within the ambit of serial No. 3F, serial No. 67 has no application. The Tribunal took the correct view.

6. The learned Standing Counsel placed reliance on a decision of this court reported in The State of Orissa v. Jamula Srirangam [1961] 12 S.T.C. 135. Therein a Bench of this court observed :

The value of the imitation stones set in a gold ornament is wholly immaterial in deciding the question whether the ornament is jewellery or not.

A gold ornament containing imitation stones of small value was held to be 'jewellery' within the meaning of the expression as used in item 24 of Notification No. 5028 dated 28th July, 1947, as amended by Notification No. 8728-F dated 1st July, 1949. This decision has no appli cation to the present case. That was based on the language of item 24. The material portion of that notification was as follows :

Jewellery including precious stones; unset precious stones and pearls real or cultured; imitations of gold ornaments made of specie, jewellery, precious stones and pearls.

The item was too widely worded. It is not necessary to make further reference to that decision. It is sufficient to say that the principle laid down in that decision must be confined to its own facts.

7. We are satisfied that the Tribunal took the correct view. Our answer to the question posed would be that the impugned ornaments were taxable under serial No. 3F and are not taxable under serial No. 67.

8. The reference is accordingly discharged; but in the circumstances there will be no order as to costs.

S. Acharya, J.

9. I agree.


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