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Burmah-shell Oil Storage and Distributing Co. of India Ltd. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberT.R.C. Nos. 63 and 65 to 67 of 1975
Judge
Reported in[1978]42STC1(Ker)
AppellantBurmah-shell Oil Storage and Distributing Co. of India Ltd.
RespondentState of Kerala
Appellant Advocate T.L. Viswanatha Iyer,; P.S. Narayanan and; K.S. Menon
Respondent AdvocateThe Government Pleader
DispositionPetition allowed
Cases ReferredLucknow v. Madho Pd. Jatia
Excerpt:
- - 3. the purpose of an inclusive definition has been dealt with by the text-book writers as well as by the judicial decisions. first, by way of illustration, or of enumeration of the forms the thing defined commonly assumes, by naming things that clearly come within the meaning given......whether 'special boiling point spirit' and 'shell hexane' are liable to be assessed at single point under schedule i of the general sales tax act, 1963, or on multi-point scheme of taxation under section 5(1)(ii) of the said act, read, in either case, with the provisions of section 5(1) of the act. the revisions relate to the assessment years 1968-69 to 1971-72. for the years 1968-69 to 1970-71, the assessments were completed accepting the position that the goods in question fell under section 5(1)(ii) of the act and were liable to be assessed under the multi-point scheme of taxation at 3 per cent sales tax. the assessment was reopened and the goods were assessed to single point tax under item 57b of schedule i at the rate of 15 per cent sales tax on the ground that they constituted.....
Judgment:
ORDER

V.P. Gopalan Nambiyar, C.J.

1. These tax revision cases raise a question whether 'special boiling point spirit' and 'shell hexane' are liable to be assessed at single point under Schedule I of the General Sales Tax Act, 1963, or on multi-point scheme of taxation under Section 5(1)(ii) of the said Act, read, in either case, with the provisions of Section 5(1) of the Act. The revisions relate to the assessment years 1968-69 to 1971-72. For the years 1968-69 to 1970-71, the assessments were completed accepting the position that the goods in question fell under Section 5(1)(ii) of the Act and were liable to be assessed under the multi-point scheme of taxation at 3 per cent sales tax. The assessment was reopened and the goods were assessed to single point tax under item 57B of Schedule I at the rate of 15 per cent sales tax on the ground that they constituted 'petrol' exempt from taxation by specific enumeration under item 57A of the said schedule itself. For the assessment year 1971-72, the original assessment itself was completed on the basis that the goods fell within item 57B of Schedule I. The correctness of the view thus taken has been canvassed in these revision petitions.

2. Section 5 is the charging section under the Act. Clause (1) of the said section reads:

5. Levy of tax on sale or purchase of goods.-(1) Every dealer (other than a casual trader or agent of a non-resident dealer) whose total turnover for a year is not less than twenty-five thousand rupees and every casual trader or agent of a non-resident dealer, whatever be his total turnover for the year, shall pay tax on his taxable turnover for that year,-

(i) in the case of goods specified in the First or Second Schedule, at the rates and only at the points specified against such goods in the said schedules; and

(ii) in the case of other goods, at the rate of four per cent at all points of sale.

Section 2 is the definition section. The definition under Section 2, Clause (xv) and Clause (xvii), may be noticed:

2. Definitions.-In this Act, unless the context otherwise requires,-

(xv) motor spirit' means any substance which by itself or in admixture with other substances is ordinarily used directly or indirectly to provide reasonably efficient fuel for automative or stationary internal combustion engines and includes petrol, diesel oil and other internal combustion oils, but does not include kerosene, furnace oil, coal or charcoal;....

(xvii) 'petrol' means dangerous petroleum having its flashing point below 24.4 degrees centigrade;.

Next, we turn to Schedule I, items 57A to 57H, which are as follows:

-------------------------------------------------------------------

'Sl. No. Description of Point of levy Rate of tax

the goods

(1) (2) (3) (4)

-------------------------------------------------------------------

57A. Motor spirit other than At the point of sale 20

petrol and aviation in the State by any

gasoline oil company liable

to tax under section

5, except where the

sale is by any oil

company to another

oil company.

57B. Petrol other than do. 15

naphtha

57C. Aviation gasoline do. 12

57D. Aviation turbine fuel do. 6

57E. Naphtha do. 5

57F. Kerosene do. 4

57G. Furnace oil do. 5

Explanation.-For the purposes of serial numbers 57A, 57B, 57C, 57D, 57E, 57F and 57G, 'oil company' means Cochin Refineries Limited, Indian Oil Corporation Limited, Burmah-Shell Oil Storage and Distributing Company of India Limited, Caltex (India) Limited, Esso Standard Eastern Incorporated, Indo-Burmah Petroleum Company Limited and includes such other company as the Government may from time to time, by notification in the Gazette, specify in this behalf.

57H. Liquified petroleum gas At the point of first 15.'

sale in the State by

a dealer who is

liable to tax under

Section 5.

It is unnecessary to notice the Schedule II items or the rates of taxation. We next note the definition of petroleum in Section 2(a) of the Petroleum Act (30 of 1934) and the definition of 'flashpoint' in Section 2(c) of the said Act. The definitions read :

2. Definitions.-In this Act, unless there is anything repugnant in the subject or context,-

(a) 'petroleum' means any liquid hydrocarbon or mixture of hydrocarbons and any inflammable mixture (liquid, viscous or solid) containing any liquid hydrocarbon ;....

(c) 'flashpoint' of any petroleum means the lowest temperature at which it yields a vapour which will give a momentary flash when ignited, determined in accordance with the provisions of Chapter II and the Rules made thereunder;.

From the two definitions in the General Sales Tax Act which we have extracted, it will be noticed that the dominant characteristic of the definition of 'motor spirit' is that it is a substance meant to provide reasonably efficient fuel in automativc or stationary internal combustion engines. The definition includes petrol. When Clause (xvii) of Section 2 defines 'petrol' as of a special brand or variety, having its flashing point below 24.4 degrees centigrade, the reasonable inference on reading the two definitions together, seems to be that every other brand of petrol other than what is specifically provided for under Section 2(xvii), will be caught within the definition in Section 2(xv). Turning now to Schedule I and, in particular, to items 57A and 57B, we notice that the earlier of these items refers to motor spirit other than petrol; and the latter one, that is, 57B, specifically takes in petrol for single point assessment at 15 per cent. By the definition in Section 2(xv), petrol, except of the special brand caught by Section 2(xvii), is included within the concept of 'motor spirit'. But item 57A of Schedule I excepts petrol in the generic sense, other than what is specifically dealt with in item 57B. The result is all brands of petrol other than that covered by item 57B will go into the multiple scheme of taxation under Section 5(1)(ii). In other words, the reasonable way of harmonising the provisions by reading them together seems to be to say that petrol whose flashing point is above 24.4 degrees centigrade will go to the multi-point system of taxation under Section 5(1)(ii) and the special brand of petrol whose flashing point is below 24.4 degrees centigrade into Schedule I, item 57B, read with Section 5. This was the argument advanced by counsel for the revision-petitioner ; and, after careful consideration, we are of the opinion that the contention is sound and must be accepted.

3. The purpose of an inclusive definition has been dealt with by the text-book writers as well as by the judicial decisions. In Craies's Interpretation of Statutes, 7th Edition, at pages 214 to 216, the relevant principles for understanding an interpretation clause which extends the meaning of a word are discussed. Thus it is stated at page 214:

An interpretation clause', said Lush, J., in R. v. Pearce (1880) 5 Q.B.D. 386 at 389, 'should be used for the purpose of interpreting words which are ambiguous or equivocal and not so as to disturb the meaning of such as are plain,' or, as Lord Coleridge said in London School Board v. Jackson (1881) 7 Q.B.D. 502 at 504, so as 'to prevent the operation of a word in its primary and obvious sense.

At page 216, it is stated :

Another important rule with regard to the effect of an interpretation clause is, that an interpretation clause is not to be taken as substituting one set of words for another, or as strictly defining what the meaning of a term must be under all circumstances, but rather as declaring what may be comprehended within the term where the circumstances require that it should be so comprehended. If, therefore, an interpretation clause gives an extended meaning to a word, it does not follow as a matter of course that, if that word is used more than once in the Act, it is on each occasion used in the extended meaning and it may be always a matter for arugument whether or not the interpretation clause is to apply to the word as used in the particular clause of the Act, which is under consideration: R. v. Cambridgeshire, JJ. (1838) 7 Ad. & E. 480 at 491; London School Board v. Jackson (1881) 7 Q.B.D. 502 at 504 ('parent'), Coleridge, J. (cf. pages 214, 215, above). 'It appears to me', said Lord Selborne in Meux v. Jacobs (1875) L.R. 7 H.L. 481 at 493, 'that the interpretation clause does no more than say that, where you find these words in the Act, they shall, unless there be something repugnant in the context or in the sense, include fixtures.

In Krishnan v. P.K.M. Karnavan A.I.R. 1967 Ker. 270 (F.B.), a Full Bench of this Court, speaking through Raman Nayar, Ag. C. J., explained the objects of the inclusive device in a definition as follows :

14. A definition which first tells us what a thing means and then goes on to say what it includes, can use the inclusive device for three entirely different purposes. First, by way of illustration, or of enumeration of the forms the thing defined commonly assumes, by naming things that clearly come within the meaning given. Secondly, for roping in things that, either partly or in whole, would not come within the meaning. Thirdly, by way of abundant caution, so as to put it beyond doubt that certain things do come within the meaning.

In Karim v. S.T.A. Tribunal [1963] 14 S.T.C. 36, a Division Bench of this Court observed :

8. The word 'and', as already pointed out, was omitted by the legislature and the word 'including' substituted. The word 'and' is normally employed to express the relation of addition, the adding of something to that which preceded. The word 'including' denotes a different meaning; an additive power is not its necessary attribute.

The above principles that we have noticed only confirm the view that we have stated regarding the reasonable and harmonious way of construction and understanding the provisions of the General Sales Tax Act which have to be construed for the purposes of these revisions.

4. The learned Government Pleader for the State contended before us that the rule of harmonious construction requires that the provisions must be so read and understood that effect can be given to each set of provisions. He argued that the general item must yield to the special and that in view of this principle of interpretation also, petrol which is specifically provided for in item 57B had to be assessed on the single point system of taxation under Schedule I of the Act. Our attention was called to the English decision in Dilworth v. Commissioner of Stamps [1899] A.C. 99 at 105-106, where Lord Watson observed :

Section 2 is, beyond all question, an interpretation clause and must have been intended by the legislature to be taken into account in construing the expression 'charitable device or bequest', as it occurs in Section 3. It is not said in terms that 'charitable bequest' shall mean one or other of the things which are enumerated, but that it shall 'include' them. The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute ; and when it is so used, these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause delcares that they shall include. But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include' and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.

We have given the principles canvassed by counsel our very careful consideration and attention. We feel that only petrol of a special brand, viz., whose flashing point is below 24.4 degrees centigrade is covered by item 57B of Schedule I. Other varieties of petrol fall within the inclusive definition of 'motor spirit' under Section 2(xv). But when item 57A is carved out it excludes petrol from the enumeration ; with the result, that petrol other than what is covered by item 57B, will fall under the multipoint scheme of taxation under Section 5(1)(ii).

5. There is yet one other aspect of the matter. Assuming, as the learned Government Pleader would contend, that the provisions herein concerned are capable also of being read and understood in the way the learned Government Pleader would have us understood, the case is one where two views are possible in regard to the construction of the provisions in question. In such cases and situations, the decisions have held that the view more beneficial to the assessee must prevail: see Commissioner of Income-tax, Punjab v. Kulu Valley Transport Co. P. Ltd. [1970] 77 I.T.R. 518 (S.C.), Commissioner of Income-tax, West Bengal I v. Vegetable Products Ltd. [1973] 88 I.T.R. 192 (S.C.), Commissioner of Income-tax, West Bengal II v. Naga Hills Tea Co. Ltd. [1973] 89 I.T.R. 236 (S.C.) and Commissioner of Income-tax, Lucknow v. Madho Pd. Jatia [1976] 105 I.T.R. 179 (S.C.). There are a number of other authorities also. But we do not think it necessary to multiply citations.

In the result, we accept the revision-petitioner's case and allow these tax revision cases and set aside the orders of the Appellate Tribunal in these revision cases. The cases will go back to the Appellate Tribunal for passing a fresh assessment in accordance with law. We make no order as to costs.


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