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State of Orissa Vs. New Orissa Paints and Dyes - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case NumberS.J.C. No. 46 of 1973
Judge
Reported in[1976]37STC475(Orissa)
AppellantState of Orissa
RespondentNew Orissa Paints and Dyes
Appellant AdvocateR.K. Mohapatra, Standing Counsel (S.T.)
Respondent AdvocateB. Agarwalla, Adv.
Cases ReferredM.P. v. Jaswant Singh Charan Singh
Excerpt:
.....loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making..........denatured spirit would automatically include the country liquor and as the same has been made tax-free, denatured spirit must be made tax-free, does not appeal to us. on a plain reading of serial no. 12, the legislature intended to make country liquor including tari and pachwai, potable foreign liquor including medicated wines, excise opium (excluding preparation of opium), ganja and bhang tax-free. these items are of common use as beverage, drink and intoxicants by different sections of the society. there is nowhere in it the word 'spirit'. besides, spirit as such, is not a food or drink or a beverage to legitimately come under serial no. 12 which is specifically meant for such items. that apart negatively also even if spirit includes beverage, which obviously it does not mean,.....
Judgment:

K.B. Panda, J.

1. This is a reference under Section 24(1) of the Orissa Sales Tax Act (hereinafter referred to as the Act), made at the instance of the State of Orissa to answer the following two points of law said to be arising out of Tribunal's order in S.A. No. 650 of 1971-72:

(1) Whether, on the facts and in the circumstances of the case, the Member, Sales Tax Tribunal, is right in importing and applying the definition of 'liquor' as given in the Bihar and Orissa Excise Act, 1915, for interpreting serial No. 12 of the schedule of tax-free goods of the Orissa Sales Tax Act, 1947 ?

(2) Whether, on the facts and in the circumstances of the case, the Member, Sales Tax Tribunal, is right in interpreting the expression 'potable foreign liquor including medicated wines' as covering all items enumerated under the definition of 'liquor' in the Bihar and Orissa Excise Act, 1915, and exempting denatured spirit from the purview of taxation?

2. The assessee-opponent (hereinafter described as the assessee) is M/s. New Orissa Paints and Dyes, a registered dealer under Cuttack-I West Circle, that carried on business in paints, colours, varnish and denatured spirit during the year 1967-68. A proceeding under Section 12(8) was initiated by the concerned Assistant Sales Tax Officer against the assessee as the turnover of sales of 'denatured spirit' had escaped assessment during the regular assessment. The turnover for the period on this item was found to be Rs. 6,627.50. Accordingly, a tax demand of Rs. 331.35 was made. Further, a penalty of Rs. 50 was also imposed under Section 12(8) of the Act.

The assessee preferred an appeal before the Assistant Commissioner of Sales Tax, but without success. The first appellate authority did not accept the stand of the assessee that 'denatured spirit' is covered under serial No. 12, to which exemption has been allowed.

Being aggrieved by that order, the assessee preferred a second appeal before the Sales Tax Tribunal, Orissa. However, the Tribunal by its order dated 14th September, 1972, gave relief to the assessee holding that 'denatured spirit' is an item coming under serial No. 12 of the exempted list and, as such, tax-free. Consequently, the 12(8) assessment was annulled and so too the imposition of the penalty thereunder.

The State of Orissa thereafter filed an application under Section 24(1) of the Act for referring the above-quoted two questions said to be of law to this court for answer.

3. The sole point for consideration, in the context of the rival contentions is whether the learned Tribunal is correct in holding that 'denatured spirit' is one of the categories of articles not liable to tax inasmuch as it comes under serial No. 12, to which exemption has been allowed. In that view of the matter, we consider it appropriate to recast the two points of law referred thus:

Whether, in the facts and circumstances of the case, the Tribunal is right in holding that 'denatured spirit' is tax-free inasmuch as in respect of it exemption has been allowed under serial No. 12 ?

4. For perspicuity, serial No. 12 may be quoted :

Country liquor including tari and pachwai, potable foreign liquor including medicated wine, excise opium (excluding preparation of opium), ganja and bhang.

In this context it is pertinent to mention that under the exempted list, serial No. 14, 'motor spirit' has been described as an inflammable hydrocarbon ordinarily used for providing reasonable efficient motive power for any form of motor vehicle. But 'denatured spirit' is not included therein.

5. The question further boils down to the point, if 'denatured spirit' is either 'country liquor' or 'potable foreign liquor' so as to come under exemption from sales tax. Obviously, the other three categories of goods under the same serial such as opium, ganja and bhang do not come within the horizon of consideration.

Mr. Mohapatra, the learned standing counsel, contended that serial No. 12 even does not contemplate to exempt foreign liquor as such. In the Bihar and Orissa Excise Act, 1915 (Act No. 2 of 1915), 'liquor' has been widely defined as follows :

Liquor includes all liquids consisting of or containing alcohol, such as spirits of wine, spirit, wine, fermented tari, pachwai and beer, and also unfermented tari, and also any other substance which the State Government may, by notification, declare to be liquor for the purposes of this Act.

Under the same Act, 'spirit' has been defined as 'any liquor containing alcohol obtained by distillation, whether it is denatured or not'. Mr. Mohapatra's contention is that the learned Tribunal, while interpreting the scope of serial No. 12 of the list of tax-free goods, has fallen into error in importing the definition of 'liquor' as it appears under the Bihar and Orissa Excise Act. In fact, the learned Tribunal in the impugned order has observed thus :

Serial No. 12 read as a whole indicates that the expression covers not only liquors but other varieties of excise goods, that is to say, goods liable to excise duties. Again, the definition is an inclusive definition which enlarges its meaning. In the circumstances, when denatured spirit is treated under the excise law of the State as liquor and is liable to duty, it must be held to have been exempted as being liquor within the meaning of serial No. 12.

It follows from the above observation that the learned Tribunal has, in the absence of the definition of 'denatured spirit' in this Act, imported the definition of 'denatured spirit' as found in the Bihar and Orissa Excise Act. According to Mr. Mohapatra, adoption of one definition given under one statute for the purpose of another statute is impermissible and much more so while interpreting the provisions of a fiscal Act. His contention is that, in the absence of any definition under the relevant Act, the common parlance view has to be adopted. In this context, he relied on the decision of the Privy Council reported in Laurence Arther Adamson v. Melbourne and Metropolitan Board of Works A.I.R. 1929 P.C. 181, where, their Lordships have laid down that :

It is always unsatisfactory and generally unsafe to seek the meaning of words used in an Act in the definition clauses of another statute dealing with matters more or less cognate, even when enacted by the same legislature and much more so when resort is had to the enactments of other legislatures.

6. Mr. Agarwalla, the learned counsel for the assessee, drew our attention to the dictionary meaning of the word 'potable' and contended that country liquor, whether potable or not, is exempted from sales tax. He also referred to the definition of liquor appearing in the Orissa Prohibition Act, 1956. Next he relied on the dictionary meaning of the word 'spirit', which lays down that it is a 'distilled liquid', an acqueous solution of ethyl alcohol ; 'spirituous liquor'. Lastly, he referred to the word 'spirit' as defined under the Orissa Prohibtion Act, 1956, thus :

'Spirit' means any liquor containing alcohol and obtained by distillation, whether denatured or not;

Explanation.--'Denatured' means subjected to a process prescribed by the State Government by notification for the purpose of rendering unfit for human consumption.'

In view of the high authority quoted above (Laurence Arther Adamson v. Melbourne and Metropolitan Board of Works A.I.R. 1929 P.C. 181), which yet holds the field, we consider it otiose to embark upon a discussion of potableness of foreign liquor or country liquor. So far as the definition of spirit appearing in the Orissa Prohibition Act of 1956 is concerned, it cannot be borrowed for the purposes of another statute, viz., the present Act, which is bereft of any authority. Rather contrary is the consensus of view as indicated above.

7. From the above definitions of 'liquor', 'spirit' and 'denatured spirit' appearing in different statues, Mr. Agarwalla very strongly contended that 'spirit' means liquor and, therefore, 'denatured spirit' includes country liquor. Further, country liquor having been declared to be tax-free under serial No. 12 of the schedule, 'denatured spirit' should automatically be held to be tax-free. In support of this contention, he relied on the case of State of Bombay v. F.N. Balsam A.I.R. 1951 S.C. 318. There is nothing in this citation to come to the assistance of Mr. Agarwalla. It is substantially about the interpretation of different entries in the Government of India Act, 1935. However, in it some interpretation has been given on the word 'liquor', which is to the following effect:

The word 'liquor' covers not only those alcoholic liquids which are generally used for beverage purposes and produce intoxication, but also all liquids containing alcohol. It may be that the latter meaning is not the meaning which is attributed to the word 'liquor' in common parlance especially when that word is prefixed by the qualifying word 'intoxicating', but having regard to the numerous statutory definitions of that word in the Excise and Abkari Acts, such a meaning could not have been intended to be excluded from the scope of the term 'intoxicating liquor' as used in entry No. 31 of List II.

8. As has been decided by their Lordships of the Supreme Court in a series of cases (Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola [1961] 12 S.T.C. 286 (S.C.) and Commissioner of Sales Tax, M.P. v. Jaswant Singh Charan Singh [1967] 19 S.T.C. 469 (S.C), while interpreting items in statutes like the Sales Tax Acts, resort should be had not to the scientific or technical meaning of such terms, but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense.

9. Therefore, in the absence of any definition in the Act of 'denatured spirit', and the taboo in importing the definition of other statutes to fiscal Acts, a common parlance view has to be adopted. Accordingly, the finding of the learned Tribunal based, as it is, on the definition of the denatured spirit under (sic) Act, is unsustainable.

10. Mr. Agarwalla's contention that the definition of 'spirit' as it includes liquor, denatured spirit would automatically include the country liquor and as the same has been made tax-free, denatured spirit must be made tax-free, does not appeal to us. On a plain reading of serial No. 12, the legislature intended to make country liquor including tari and pachwai, potable foreign liquor including medicated wines, excise opium (excluding preparation of opium), ganja and bhang tax-free. These items are of common use as beverage, drink and intoxicants by different sections of the society. There is nowhere in it the word 'spirit'. Besides, spirit as such, is not a food or drink or a beverage to legitimately come under serial No. 12 which is specifically meant for such items. That apart negatively also even if spirit includes beverage, which obviously it does not mean, 'denatured spirit' having been purposely rendered unfit for human consumption by some manufacturing process, cannot come within its fold.

11. The assessee deals with goods like paints, colours and varnishes, etc. 'Denatured spirit', in ordinary parlance, is a commodity used for the purpose of varnishing, painting or colouring. In that analogy, it is to be placed on the footing of articles like paints, colours and varnishes. According to the taxing statute, all items are taxable unless expressly provided to be tax-free. In this case, 'denatured spirit' has not been made explicitly tax-free nor it can be presumed by necessary implication. Accordingly, we would hold that 'denatured spirit' does not come under serial No. 12 meant for articles exempted from tax.

12. In the result, therefore, we would answer the recast point of reference in the negative in favour of the revenue. Consolidated hearing fee Rs. 50 (Rupees fifty only). The reference is answered accordingly.

S.K. Ray, Ag. J.

I agree.


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