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The Deputy Commissioner of Agricultural Income-tax and Sales-tax (Law), Board of Revenue (Taxes), Ernakulam Vs. M/S. A. Khader Kunhi and Sons Merchants, Camp Bazaar, Cannanore and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKerala High Court
Decided On
Case NumberT.R.C. No. 95, 97 and 98 of 1974
Reported in(1976)5CTR(Ker)105
AppellantThe Deputy Commissioner of Agricultural Income-tax and Sales-tax (Law), Board of Revenue (Taxes),
RespondentM/S. A. Khader Kunhi and Sons Merchants, Camp Bazaar, Cannanore and ors.
Cases ReferredMadura Mills Company Limited vs. Government of Madras and
Excerpt:
- - appeals taken before the appellate assistant commissioner against those assessment orders failed and there were further appeals before the tribunal......was felt that it was the rate of 3% that was applicable because the commodity in question was not cotton yarn, and fresh notice was issued to the assessee and the above-mentioned turnovers were taxes at 3%. the same procedure was followed for the year 1970-71 relating to a turnover of rs. 16,166.98 which related to the sale of the same commodity. appeals taken before the appellate assistant commissioner against those assessment orders failed and there were further appeals before the tribunal.2. the tribunal stated the assessees case in paragraph 9 of its order and considered the meaning of the expression 'twine' and 'yarn' as given in the dictionary, in paragraph 10, referred to the decision of this court in krishna iyer vs. state of kerala (13 s.t.c. 838) in paragraph 11, and came to.....
Judgment:

Govindan Nair, C.J. - These revision cases relate to the assessment of the same person for the three years 1968-69, 1969-70 and 1970-71. The commodity termed by the assessee-revision petitioner as 'twisted cotton fishing twine' was sold by the assessee for a sum of Rs. 49,693.81 for the year 1968-69 and for a sum of Rs. 41,279.84 for the year 1969-70. In the original assessment the turnovers represented by these amounts were taxed at the rate of 1% apparently because the commodity fell under item 4(ii) to the second Schedule to the Kerala General Sales Tax, 1963. Later it was felt that it was the rate of 3% that was applicable because the commodity in question was not cotton yarn, and fresh notice was issued to the assessee and the above-mentioned turnovers were taxes at 3%. The same procedure was followed for the year 1970-71 relating to a turnover of Rs. 16,166.98 which related to the sale of the same commodity. Appeals taken before the Appellate Assistant Commissioner against those assessment orders failed and there were further appeals before the Tribunal.

2. The Tribunal stated the assessees case in paragraph 9 of its order and considered the meaning of the expression 'twine' and 'yarn' as given in the dictionary, in paragraph 10, referred to the decision of this Court in Krishna Iyer vs. State of Kerala (13 S.T.C. 838) in paragraph 11, and came to the conclusion that it is the ordinary meaning in common parlance that must be applied in understanding whether a particular commodity was cotton yarn or a different commodity. Reference was then made to the decision of the Madras High Court in Madura Mills Company Limited vs. Government of Madras and another (25 S.T.C. 407) and following the decision the Tribunal came to the conclusion that what the assessee sold and which was called 'twisted cotton fishing twine' was 'cotton yarn' within the meaning of item No. 4(ii) of the Second Schedule to the Kerala General Sales Tax Act, 1963. Accordingly, the turnover which we have mentioned were assessed at the rate of 1%. The question for consideration is whether the view taken by the Tribunal is correct.

3. A large number of decisions have been rendered in this type of cases. So the question arose whether Vanaspati is groundnut oil and the Supreme Court came to the conclusion that notwithstanding the physical changes that had taken place to the groundnut oil it remained groundnut oil even when it was converted into Vanaspati (11 S.T.C. 827). The matter was again considered by the Supreme Court when it had to determine whether 'iron rods' could be brought within the item 'iron and steel' and the court came to the conclusion that 'iron rods' fell within that item (17 S.T.C. 313). The question that arose in the State of Gujarat vs. Sakarwala Brothers (1967) 19 S.T.C. 24 was whether Patasa, Harda and Alchidana fell within the definition of sugar in entry 47 of Schedule A to the Bombay Sales Tax Act, 1959 and their Lordships of the Supreme Court held that 'the word sugar in entry 47 is intended to include within its ambit all forms of sugar, that is to say, sugar of any shape or texture, colour or density and by whatever name it is called'. As against these decisions when the question arose whether rice was paddy, the Supreme Court came to the conclusion that it was not, by applying the test that the expressions used in such statutes must be understood not according to their technical meanings or according to their botanical names or even by the dictionary meanings but as understood by the common man. This was the test which was applied in determining whether 'green ginger' was 'vegetable' (13 S.T.C. 383). It is this principle too that the Supreme Court has now emphasised in the decision in Ganesh Trading Co., Karnal vs. State of Haryana and another (1974) CTR (S.C.) 6 : (1973) 32 S.T.C. 623 where it dealt with the question whether rice was paddy. There is the following statement in the Supreme Court judgment :-

'In support of their contention, the appellants cited to us certain dictionary meanings of the word 'paddy' to show that rice is nothing but dehusked paddy. This court has firmly ruled that in finding out the true meaning of the entries mentioned in a Sales Tax Act, what is relevant is not dictionary meaning, but how these entries are understood in common parlance, specially in commercial circles.'

The Tribunal was therefore right in concluding in paragraph 11 of its order that the ordinary meaning in common parlance must be applied. Haing said so, the Tribunal relied on the decision of the Madras High Court in Madura Mills Company Limited vs. Government of Madras and another (25 S.T.C. 407) and extracted the following passage from that judgment :-

'Cord means twisted thread thicker than string and thinner than rope, String, cord and rope are different species of the same genus, namely yarn, which as such means spun thread. Yarn may from one of the threads of a string, cord rope but cotton yarn is distinct by itself. Though 'cotton tyre cord warp sheet' manufactured by the assessee is a bunch of spun thread spread to a particular shape for a definite commercial purpose, it does not cease to be cotton yarn and is therefore one of the 'declared goods.'

With great respect we are unable to agree with the view taken by the Madras High Court. The question that should have been considered was whether 'cotton tyre cord wrap sheet' which was the commodity which the court was considering could be said to be 'cotton yarns'. For understanding that they should have considered whether an ordinary man would on seeing 'cotton tyre cord warp sheet' though manufactured by the use of 'cotton yarn' refer to that as cotton yarn . At least it should have been enquired whether the substance would have been understood by the commercial would as 'cotton yarn'. That was the approach to be made is clear from the decision of the Supreme Court. Cases may arise where it may be difficult to apply that test. Recently we had to consider in our decision in Writ Appeal Nos. 84 and 85 of 1974 what is meant by 'rayon fabrics'. We said that out of rayon many things could be fabricated and therefore rayon fabrics as such did not convey any picture of any particular article which is identifiable but was referable to a series of article manufactured out of rayon. So it was held that any article manufactured out of rayon if it could be called a 'rayon fabric fell within the item. No such question arises before us in these cases. The question here is which is utilised for the purpose of making twine, cord, rope, etc., would it be possible to call the particular article (the article is not before us now) cotton yarn. If the common man would not understand world it is not known or could not be known as cotton yarn the article would not fall under item No. 4 (ii) of the Second Schedule to the Kerala General Sales Tax Act, 1963. The question has to be determined with reference to the decisions of the Supreme Court to which we have adverted to. We shall only extract a few sentences from the decision in Ganesh Trading C. Karnal vs. State of Haryana and another (1973) 32 S.T.C. 623 as indicative of the test to be applied. The Supreme Court observed thus :-

'Now, the question for our decision is whether it could be said that when paddy was dehusked and rice produced, its identity remained. It was true that rice was produced out of paddy but it is not true to say that paddy continued to be paddy even after dehusking. It has changed as paddy. They are two different things in ordinary parlance ......'

This would give a guide line as to the proper approach to be made in determining whether the particular commodity is or is not cotton yarn. Since the commodity is not before us, we do not wish to express any final opinion in this matter. With great respect we dis-agree with the view of the Madras High Court in the decision in Madura Mills Company Limited vs. Government of Madras and another (25 S.T.C. 407) the order od the Tribunal in Tribunal Appeal Nos. 222 to 224 of 1973 and remit the cases back to the Tribunal to deal with the appeals afresh in the light of what we have stated in this judgment and the principle laid down by the Supreme Court in the decision which we have referred to. We direct the parties to bear their respective costs in the Tax Revision Cases before this Court.


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