Skip to content


State of Orissa Vs. Bhagwal Das Vithaldas and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case Number Special Jurisdiction Case Nos. 153 and 156 of 1972
Judge
Reported in[1975]36STC228(Orissa)
AppellantState of Orissa
RespondentBhagwal Das Vithaldas and anr.
Appellant Advocate The Standing Counsel (S.T.)
Respondent Advocate B. Agarwalla, ;R.S. Agarwalla and ; N.N. Bhatacharya, Advs.
Cases Referred(See State of Orissa v. Modi Stores
Excerpt:
.....1972 or the act, 1951. [air 2002 orissa 130 overruled]. - 4. law is well-settled that all the entries in a particular schedule have to be so construed that full effect is given to all the entries......no. description of goods rate of fax(1) (2) (3)------------------------------------------------------------------------------------1. bullion and specie, ornaments and other articles made thereof two per cent.3-f. ornaments of personal wear made of gold and silver without any addition of precious stones, namely, diamonds, emeralds, rubies,real pearls and sapphires two per cent.32. ornamental metal-ware with enamelled or carved designs and gold and silver filigree (other than those falling under serial no. 3-f). seven per cent.-------------------------------------------------------------------------------------a little historical data relating to the entries under these various serials may now be indicated......
Judgment:

R.N. Misra, J.

1. The following question has been referred under Section 24(1) of the Orissa Sales Tax Act (hereinafter referred to as the Act) for our determination :

Whether, in the facts and circumstances of the case, ornaments decorated with filigree works are taxable at 2 per cent as per serial No. 1 or at the rate of 7 per cent as per serial No. 32 of the schedule of taxable goods ?

This question is common to the two references and in view of the fact that the second appeals and the reference applications were heard together and one set of arguments was advanced before us, we propose to answer the question by this common judgment for both the references.

2. In exercise of powers vested in the State Government under Section 5(1) of the Act, the notification dated 30th December, 1957, has been made fixing the rate of tax payable by a dealer on account of sale of goods specified in column (2) of the schedule attached to the said notification. Serial Nos. 1, 3-F and 32 of that schedule are material for the purposes of these references. Those entries are as follows :

------------------------------------------------------------------------------------Sl. No. Description of goods Rate of fax(1) (2) (3)------------------------------------------------------------------------------------1. Bullion and specie, ornaments and other articles made thereof Two per cent.3-F. Ornaments of personal wear made of gold and silver without any addition of precious stones, namely, diamonds, emeralds, rubies,real pearls and sapphires Two per cent.32. Ornamental metal-ware with enamelled or carved designs and gold and silver filigree (other than those falling under serial No. 3-F). Seven per cent.-------------------------------------------------------------------------------------

A little historical data relating to the entries under these various serials may now be indicated. The rate of tax was one per cent in respect of serial No. 1 from 1st January, 1958, till 31st March, 1966. With effect from 1st April, 1966, the rate was enhanced to two per cent. The entry itself was omitted by a notification of 27th April, 1970, which became effective from 15th May, 1970.

Serial No. 3-F was added with effect from 15th November, 1958, and continued to be in the schedule till 31st March, 1966. It was deleted by a notification of 4th March, 1966, with effect from 1st April, 1966.

With effect from 15th November, 1958, in serial No. 32, the words 'other than those falling under serial No. 3-F' were added. Notwithstanding the fact that serial No. 3-F was omitted from 1st April, 1966, in serial No. 32, reference to serial No. 3-F continued till it was omitted under a notification dated 27th April, 1970.

3. In S.J.C. No. 153 of 1972, the year of assessment is 1967-68 while in the other reference application, the year of assessment is 1968-69. In both these cases the point in dispute is as to whether when the articles sold are made of bullion and specie containing filigree works the rate of tax applicable would be as provided under serial No. 1 or serial No. 32 of the schedule of the notification referred to above. The assessee claims to be assessed at 2 per cent. The revenue contends that the liability of tax is at 7 per cent. The assessing officer and the first appellate authority have, to the estimated break-up of the turnover applied the rate prescribed under serial No. 32. In second appeal, the Tribunal came to hold-.it would appear that ordinary ornaments of everyday use are exigible to low rate of tax of 2 per cent whereas ornamental metal-wares such as plates, cups, glasses, betel-diba, caskets, which are luxury goods are taxable at 7 per cent and still more luxurious goods, i. e., ornaments with precious stones are taxable at 10 per cent. Filigree works may be two kinds of goods-one which are ornaments such as necklace, armlets, etc., whereas it may be also on goods which are not ornaments such as plates, cups, saucer, glasses, pan-dibas. The legislature have used the word 'ornaments' under serial No. 1, whereas 'ornamental metal-ware' under serial No. 32 and that makes all the difference. There is no need to strain the words used in these two serials. The emphasis would be on 'ornaments' appearing in serial No. 1 and 'ornamental metal-ware' appearing in serial No. 32 and not on the word 'filigree' which is absent from serial No, 1, From the orders of the forums below it is not clear if the accounts were separately kept one for ornaments and the other for ornamental metal-ware filigrees. Accordingly, I allow the appeal and remand the case for disposal in the light of the above observation and if any tax is found to have been paid in excess, that is to be refunded.

4. Law is well-settled that all the entries in a particular schedule have to be so construed that full effect is given to all the entries. (See State of Orissa v. Modi Stores [1969] 24 S.T.C. 255). Serial No. 3-F was deleted with effect from 1st April, 1966. As in these two references we are concerned with the assessment years 1966-67 and 1967-68, serial No. 3-F must be taken to have become non-existent. In serial No. 32, however, reference to serial No. 3-F continued until 1970. Therefore, so far as these two years of assessment are concerned, while serial No. 3-F was actually non-existent by repeal, reference to it continued in serial No. 32.

5. The Tribunal has been of the view that serial No. 1 emphasizes on ornaments while serial No. 32 emphasizes on ornamental metal-ware. We are not in a position to agree with the Tribunal on a bare reading of the language used in serial No. 1. It refers to ornaments as also other articles made of bullion and specie. Therefore, it cannot be said that the distinctive aspect is the reference to ornaments in serial No. 1 and ornamental metal-ware in serial No. 32.

Serial No. 3-F though deleted with effect from 1st April, 1966, continued in serial No. 32 until 1970. The learned standing counsel contended that the reference to serial No. 3-F in serial No. 32 was a misnomer after 1st April, 1966, when serial No. 3-F itself was deleted by amendment. The contention of the learned standing counsel is not without force, but in view of the fact that the language of serial No. 32 continued to be with reference to serial No. 3-F until deletion thereof in 1970, we are not prepared to give full effect to the contention of the learned standing counsel. Ordinarily with the deletion of serial No. 3-F from the schedule, reference thereto in serial No. 32 should have been omitted. In law while serial No. 3-F was deleted as an independent entry, its terms could continue in serial No. 32 and effect could yet be given to the entry. We would accordingly hold that notwithstanding the deletion of serial No. 3-F as an independent entry in the schedule reference thereto in serial No. 32 has got to be given effect to. The position, therefore, would be that ornamental metal-ware with enamelled and carved designs and gold and silver filigrees except as had been provided in serial No. 3-F would be exigible to the higher rate of tax under the notification.

Serial No. 32 is intended for ornamental metal-ware while serial No. 1 is meant to deal with ornaments and other articles made of bullion and specie. The distinction brought about by the Tribunal seems to be reasonable. Full effect has got to be given to both the serials. If the article sold is ornamental metal-ware and is with enamelled or carved designs or gold and silver filigree works, serial No. 32 applies. Basically the article must be ornamental metal-ware. For making serial No. 1 applicable basically the goods must be ornament or other article made of bullion and specie not covered by serial No. 32. Again, if the goods in question is covered by serial No. 3-F, it has to be kept out of the purview of serial No. 32. At the relevant time with which we are concerned, the rate of tax for serial Nos. 1 and 3-F was 2 per cent. If the goods sold were not covered by either of the two serials, the rate under serial No. 32 would be applicable. The investigation carried on at the stage of assessment as also in the hands of the first appellate authority does not appear to be adequate. The scope and effect of the various serials had not been kept in view. The Tribunal has, therefore, rightly directed a remand of the proceeding so that the matter may be investigated keeping the law in view. In our opinion, until material is collected, it is difficult for us to hold on the record as to whether ornaments decorated with filigree works are taxable at 2 per cent as per serial No. 1 or at the rate of 7 per cent as per serial No. 32 of the schedule of taxable goods. It is only when facts are duly investigated as directed by the Tribunal and the matter is analysed from the proper standpoint that a decision can be taken. Strictly speaking, the question as referred to us does not arise out of the appellate order of the Tribunal. The Tribunal found paucity of material for coming to a conclusion and, therefore, directed a further enquiry by remanding the matter. We are of the view that the remand was justified and we are, therefore, not in a position to answer on the facts and in the circumstances of the case, whether the articles in question were exigible to tax at the rate prescribed under serial No. 1 or under serial No. 32 of the schedule of taxable goods. We accordingly decline to answer the question referred to us at this stage. After investigation is made in accordance with the directions of the Tribunal, it shall be open to the parties to raise appropriate contentions in case there would still be existing dispute between the assessee and the department in regard to the rate of tax to be applied to the case in question.

The references are accordingly discharged. There would be no order as to costs of the proceedings.

B.K. Ray, J.

6. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //