Dwarka Prasad Gupta, J.
1. This application under Section 15(3A) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as 'the Act') is deemed to be an application for revision under Section 15(A) of the Act as amended by the Rajasthan Sales Tax (Amendment) Act, 1984, in accordance with the provisions of Sub-section (10) of Section 13 of the aforesaid Amending Act. We have, therefore, heard the learned Counsel for the parties treating the reference application as a revision petition under the amended provisions of Section 15 of the Act.
2. The question which arises for consideration in this revision petition is as to whether empty cable drums would fall within the expression 'packing material occurring in the Notification issued by the State Government on March 27, 1971 and so would be taxable at the rate of 3% and not at the general rate of 7%.
3. M/s Sitaram Satish Chand and Company (here in after called 'the Assessee') deals in the sale of cable drums, empty wooden boxes and other items. The Assistant Commercial Taxes Officer, Ward II, 'B' Circle, Jaipur, while assessing the turnover of the assessee for the assessment year 1973-74, relatable to the period December 17, 1972 to October 25, 1973, held by his order dated September 16, 1974 that empty cable drums used for rolling cables were taxable at the general rate of 7% as 'cable drums' did not find place in the list of 'packing material' contained in the Notification issued by the State Government on March 27, 1971. The assessee filed on appeal before the Deputy Commissioner (Appeals), Commercial Taxes, Jaipur, who upheld the order passed by the Assessing Authority and dismissed the appeal of the assessee by his order dated February 24, 1975. Thereafter the assessee filed a revision petition before the Board of Revenue, which was heard by a Single Member of the Board. It was held by the Single Member of the Board of Revenue by his order dated July 19, 1976, that the items emunerated in the list of 'packing material' given in the Notification dated March, 27, 1971, were illustrative and not exhaustive and that 'cable drums' used for transporting cables must be considered as paking material for the purpose of levying tax under the Act.
4. An appeal was filed by the Assessing Authority before a Division Bench of the Board of Revenue, but, it was dismissed by the order dated April 16, 1979, and it was held that cable drums were barrels, where in the hallow portion is used for winding up the cables and that the cables were rolled round the drum in order to facilitate the handling and transport of the cables and, therefore, 'cable drums' were covered by the entry relating to packing material, which was taxable at rate of 3%.
5. The Commercial Taxes Officer (Revision), Ajmer, then filed an application under Section 15(1) of the Act, before the Board of Revenue for Rajasthan, with the prayer that the following question of law arising out of the order of the Division Bench of the Board of Revenue dated April 16, 1979 be referred to this Court for its opinion:
Whether in the facts and circumstances of the case the turnover of Rs. 1,85,761/- of rolling drums used for rolling of cables was taxable at rate of 3% ?
As the aforesaid application filed under Section 15(1) of the Act was not decided by the Board of Revenue within the statutory period of 180 days, the present application under Section 15(3) of the Act was filed by the Commercial Taxes Officer (Revision), Ajmer before this Court.
6. As mentioned above, this application for reference has been treated by us as a revision petition under the amended provisions of Section 13 of the Act.
7. The turnover of every dealer in respect of sales or supplies of goods, beyond the specified limit, has been made liable to payment of sales tax under the provisions of Section 3 of the Act. Section 5 authorises the State Government to prescribe the rate at which tax is payable by the dealer under the Act and to notify the same in the official gazette. Proviso (5) to Section 5 presumes on implied sale of packing material when goods are sold after being packed in any material and in such cases sales tax is leviable on the sale of packing material, if any, at the same rate which is applicable to the sale of the goods themselves, unless the packing material is separately the price thereof, would form part of the sale price of the goods and would be liable to tax at rate applicable to the goods themselves. For example, it is practically, impossible for dealer to sell liquor or oil or any other liquid without packing the same in bottles, tins, barrels or polythene bags. In all such cases, the charges for packing material, even if separately made, would form part of the sale price of the goods and would be liable to tax at rate applicable to the sale of goods themselves. But in the cases of solids, the goods may be required to be packed in gunny bags, wooden boxes (Kbokhas) tin boxes or other packing material for the purpose of carrying the goods sold from the place of sale to the place of the purchaser. Such packing charges are post-sale charges, as they are not required to be made in respect of goods before or at the time of delivery, but are required to be made for carriage of goods to their destination. Some times, the packing material may be comparatively of insignificant value, while at other times the bottles, containers or other packing material may be of comparatively high value. The Assessing Authority has thus to consider the question whether there was an agreement between the parties, express or implied, for the sale of packing material or whether the packing material used in a particular case was merely employed as a convenient vehicle to put the purchaser in possession of the goods sold. When the value of the packing material is insignificant, it may conveniently be implied that the packing material was sold merely as a vehicle to put the purchaser in possession of the goods sold. But when the value of the packing material is not insignificant, it may be presumed that there was an agreement, express or implied, regarding the sale of packing material. When cables are sold, they must be wrapped round drums as a convenient mode of transporting the goods sold from the place of the seller to the purchaser.
8. The State Government issued a Notification dated March 27, 1971, under Section 5 of the Act, prescribing the rate of tax payable by a eealer in respect of sale of packing materials at rate of 3%. The description of the goods given in the aforesaid Notification relevant to our present purpose, runs as under:
(1) Packing material, that is to say,--
(i) Gunny bags and hessian;
(ii) Jute twine;
(iii) Craft paper and craft paper bags;
(iv) Empty tins and empty barrels;
(v) Wooden boxes (Khokhas) and tin boxes;
(vi) Empty bottles and corks;
(vii) Polythene and alkathene packing materials;
(viii) Bituminised packing material ...3%.
9. Thus it is clear from the aforesaid Notification that when packing material is separately charged for, tax under the Act is leviable at rate of 3% on the value of the packing material.
10. The question which has been raised in this case is as to whether the rolling drums used by the assessee for rolling cables fell within the four-corners of the aforesaid Notification dated March 27, 1971. The aforesaid question has two aspects, firstly, whether the articles enumerated in the aforesaid Notification at item No. 1 are merely illustrative of the expression 'packing material' or they are exhaustive and secondly, whether the expression 'empty barrels' occurring in Clause (iv) of Item No. 1 of the aforesaid Notification would contain within its ambit empty rolling dums, even if the list of articles enumerated as 'packing material' in Item No. (ii) &(iv) of the aforesaid Notification is considered to be exhaustive.
11. In Megh Raj v. Allah Rakhia 1942 ITR 72 the expression 'that is to say' was used with reference to a general category namely 'land' in the context of describing the amplitude of legislative power to enact laws with regard to land rights in or over it. Thus in Meghraj's case (supra) the expression was given a scope in view of the context in which the said expression was used and the word 'land' and rights over land were meant to be which gave the expression a wide scope.
12. In State of Tamil Nadu v. Pyare Lal Malhotra (2) their Lordships of the Supreme Court held that ordinarily the expression 'that is to say' is employed to make clear and fix the meaning of what is to be explained or defined. It was pointed out that such an expression is not used, as a rule, to amplify the meaning or for removing a possible doubt and for that purpose the word 'includes' is generally employed. Thus, the expression 'that is to say' is normally expected to be exhaustive, although their Lordships also observed in the aforesaid case that the precise meaning of the expression 'that is to sat' must vary with the context.
13. The decision of their Lords ips of the Supreme Court in Pyare Lal Malhotra's case (supra) was followed by Allahabad High Court in Khajan Singh Ashok Kumar v. The Commissioner, Sales Tax U.P. Lucknow (1976) 37 STC 319, wherein the question arose as to whether the word 'timber' as used in the Notification, was confined only to the wood of various varieties of trees mentioned there in or could be made applicable to woods of other trees as well, which were also meant for building purposes. It was held in that case that the expression 'that is to say' used in a Notification imposing a single point tax and mentioning a large number or varieties of trees with reference to the word 'timber' must be held to be exhaustive of the kind of woods described therein. It was observed that if the list was not considered to be exhaustive, the specification of various trees would be without any purpose and the enumeration would lose its meaning.
14. The same view was also taken by the Allahabad High Court in Commissioner of Sales Tax, U.P. v. Bomby Machinery Company (4), wherein emphasis was laid upon the following passage from the decision of their Lordships of the Supreme Court in Pyare Lal Malhotra's case (supra):
The object of using them for subject matter of legislation was obviously to lay down a wide power to legislate. But, in the context, of single point sales-tax, subject to special conditions when imposed on separate categories of specified goods the expression was apparently meant to exhaustively enumerate the kinds of goods in a given list. The purpose of an enumeration in a statute dealing with sales-tax at a single point in a series of sales would, very naturally be to indicate the types of goods each of which would constitute a separate class for a series of sales. Otherwise, the listing itself loses all meaning and would be without any purpose behind it.
In Bombay Machinery's case (supra) it was held that the expression 'that is to tay' was used for the purpose of exhaustively enumerating the items of goods.
15. The same view was also taken by the Madras High Court in Deputy Commissioner of Commercial Taxes, Tiruchirapalli v. K. Sowrirajan (1977) 40 STC 359, where the relevant entry was 'Chemical Fertiliser that is to say...' and 16 articles were enumerated therein. It was held that items specified therein were exhaustive and not merely illustrative, following the decision of the Supreme Court in Pyare Lal Malhotra's case (supra).
16. In Dy. Commissioner of Commercial Taxes, Tiruchirapally v. P.C. Mohammed Ibrahim Markayar Sons (1980) 46 STC 22, the Madras High Court again took the same view and held that galvanised plain sheets commonly known as G.P. sheets would not fall within the expression 'iron and steel', when the expression 'iron and steel' is followed by the words 'that is to say' and the articles included in the entry have been enumerated.
17. A bench of this Court in Rajasthan Iron and Steel Merchants Association (Private) Ltd., Jaipur v. CTO, Special Circle-II, Jaipur 1984 RLR 932 observed, that the scope and meaning of the words 'that is to say' have been enunciated by their Lordships of the Supreme Court in Pyare Lal Malhotra's case (supra) and the said expression is apparently meant to exhaustively enumerate all the kinds of good mentioned in the list. It was held by this Court in the aforesaid case that the term 'iron & steel' could not be given a general or wider meaning, but included the articles enumerated in the notification because of the use of the words 'that is to say' in the relevant notification following the words 'iron & steel'.
18. We are in agreement with the view taken in the aforesaid decisions following the observations of their Lordships of the Supreme Court in Pyare Lal Molhotra's (supra). Once the expression 'that is to say' is employed in a taxing notification indicating the articles included therein in extenso, which were to be subject matter of one point tax in a series of sales, then a general of generic meaning could not be assigned to the expression which is followed by the word 'that is to say' but the item should be understood to consist of the varieties enumerated and the articles specified should be considered to be exhaustive and not illustrative. In a case of taxation, when used in the context of single point sales-tax imposed on separate categories of specified goods, the expression 'that is to say' apparently mean to exhaustively enumerate the kinds of goods includable in the specific category. As observed by their Lordships of the Supreme Court in Pyare Lal Malhotra's case (supra), the ordinary meaning to be assigned to a taxable item in a list of specified goods is that each item so specified should be considered as a separately taxable item for purposes of single point taxation in a series of sales. It is well settled that Sales-tax law is intended to impose tax on sale of different commercial commodities and not take notice of the production or manufacture of particular substance, out of which those commodities may have been made. As and when separate commercial commodities emerge or come into existence, they become separately taxable goods or entities for purpose of levy of sales tax. But where commercial goods remain without a change of their identity, as & when such goods are merely subjected to some processing or finishing or are merely joined together, they cannot be taxed again in a series of sales, so long as they remain their identity as goods of a particular category and remain commercially within the same category. We are, therefore, unable to agree with the Board of Revenue on this aspect of the matter and hold that the item 'packing material included at No. 1 of the notification dated March 27, 1971 should consist of the eight varieties of packing material enumerated in the said notification and the varieties specified were exhaustive of the kinds of packing material on which sales tax was payable at 3%, because of the use of the words 'that is to say' fallowing the expression 'packing material'. It is thus, clear that no other article should be considered to be included in the aforesaid notification as being taxable at rate of 3% in the category of packing material, which does not fall in any one of the eight varieties enumerated in item No. 1 of the aforesaid notification. It is well established that in the context of single point sales-tax chargeable on separate categories of specified goods, when the main item was followed by the words 'that is to say', it apparently denoted that the articles enumerated specifically in the list only were comprised in that category and such articles would constitute a separate class for levy of a sales tax at one point in a series of sales and was exhaustive and not merely illustrative in nature.
19. The second aspect which was argued by learned couusel for the assessee before us was that empty rolling drums were covered by the entry relating to packing material as they fell within the expression 'empty barrels'. We are inclined to agree with this submission of the learned Counsel because rolling drums or cable drums are nothing but barrels, wherein the hollow wooden portion is used for winding up the cables and without rolling the cables round the empty drums it was not possible to transport or carry the cables from the place of the seller to the buyer. Thus, empty cable drums or rolling drums are used merely as a vehicle for transport of cables, which constitute subject matter of a sale and so the empty rolling drums were squarely covered within the expression 'packing material'.
20. In State of Orissa v. Balaji Wood Industries (8), although the term 'packing material' round which aluminium cables were wound were treated as packing materials for sale of aluminium cables. It was held by the Orissa High Court in the aforesaid case that the sale of cable drums to registered dealers was taxable at concessional rate of 3% as they fall within the expression 'packing material'.
21. We may observe that in the case of grain, gunny bags are used as paking material and the same constitutes vehicles for transport of the goods sold. Sales of cotton yarn are bound by thin tin plate wires and are wrapped in gunny rolls. In that case the thin tin plate wires and gunny rolls constitute packing material for the bales of cotton. When corrigated iron sheets are sold they are bound together in bundles by tying iron wires around then and in that case the iron wires constitute packing material. Other articles like fresh fruits are transported in wooden baskets or Wooden boxes and in that case the wooden baskets or wooden boxes constitute the paking material. In the case of readymade garments or cloth, they are placed inside a paper pack to make it convenient for the customer to carry the same. In such cases the paper pack becomes the packing material. Aluminum or copper cables could not be packed inside a box nor there is any other convenient mode to carry them away after the sale had taken place except that they are wound round an empty cable drum so as to keep them intact. Thus in case of sale of large roles of aluminium or copper cables, the only convenient mode to carry them away by the customer is to send rhem round empty rolling drums made of timber. There is no reason why in such a case the rolling drum should not constitute packing material, more so as empty rolling drums would be merely 'empty barrels' and would fall within the expression 'paking material', contained in the notification dated March 27, 1971.
22. It was also argued that in a taxing statute an item of goods must be construed not in any technical sense, but as it is understood in common parlance. A word must be construed in its popular sense meaning thereby the sense people conversant with the subject-matter with which the statute is dealing would attribute to it.
23. In Ramavatar Budhai Prasad v. The Assistant Sales Tax Officer, Akola and Anr. (1961) 12 STC 286, the question was whether the term 'vegetables' comprise within it the item betel leaves. It was held by their Lordships of the Supreme Court that the word 'vegetables' in a taxing statute must be understood as in common parlance as denoting a class of vegetables which is grown in kitchen garden or in a farm and are used for the table. Thus plainly speaking, betel eaves did not fall within the word 'vegetables' and consequently betel leaves were not held to be exempt from payment of sales tax.
24. The next question for consideration is as to whether expression empty barrel' includes only barrels where in any liquid could be filled in or may also include within its purview cable or rolling drums around which the wires or cables could be wound. We see no essential difference in the identity between the two varieties of drums or barrels used as 'packing material'. The generally prevelent test is whether the article is commercially different or distinct in the view of those persons who deal with it, from the articles commonly included therein. The term employed is 'a barrel' and it may be hollow which can undoubtedly be used for the purpose of selling in liquids so as to carry them after the sale there of is effected. But, if the shape of the drums or barrels is of such a nature that it is broader towards the end, then they could be used for the purpose of tying cables or wires around them. Where there is no essential difference in identity between the two commodities, although there may be some degree of difference between the two or in the use to which they are put to, yet they cannot be said to be commercially different commodities.
25. When the Legislature intends to refer to any specified variety of goods, it should commonly he presumed that it uses apt language to do so. Thus, empty drums of any kind or variety, size or shape would fall within the expression 'barrel', provided it is used as a packing material covered within item No. 1.
26. In State of Gujarat v. Sakarwala Bros. (1967) 19 STC 24, the word used in the notification was 'sugar' and the question arose as to whether ('Patasa', 'Harda' and 'Alchidana' fall within the expression 'sugar' and the sale thereof was exempt from payment of sales-tax under the Bombay Sales Tax Act. It was held by their Lordships of the Supreme Court that it was manifest that Patasa, Harda and Alchidana were only different forms of refined sugar. It was held that the item included within its ambit all forms of sugar irrespective of its shape, colour, taxture or density or by whatever name it is called.
27. Similarly, while interpreting the expression 'garment' this Court in Pareek Hosiery Products v. Deputy Commissioner of Sales Tax (Appeals), Jaipur and Ors. (1962) 13 STC 722 held that any article of clothing used to cover human body, irrespective of the fact whether they are used inside or outside, fall within the purview of the expression 'garment'. It was held in that case that hosiery goods including cotton vests, underwears, mufflers and 'topas' were exempted from payment of sales tax by virtue of the notification in question in that case.
28. The principle of interpretation of taxing statute was rightly laid down by this Court in Chohan Pan Bhandar v. The Assistant Sales Tax Officer, Beawar RLW 1965 444, wherein it was observed as under:
The interpretation should neither be so liberal that it may promote from and open flood-gate for the tax-payers to evade the tax by subtle and dishonest devices, nor should it be so narrow and unreasonable that the remedy provided by the Legislature becomes only nominal and the very object which it is sought to accomplish is defeated. It should be given its full and reasonable scope and amplitude so long as no violence is done to the language used and the exemption should not be wittled down by importing limitations not inserted or contemplated by the Legislature.
29. The words used in the notification dated March 27, 1971, are 'empty barrel'. The word 'barrel' should be given its ordinary dictionary meaning. Accordingly to Webster's Third New International Dictionary, 'barrel' means a round bulging vessel or container of greater length than breadth, a drum or cylinder or similar round part the core of various cylindrical devices (as a spool or bobbin) on which yarn or cloth is wound. Thus, according to the dictionary meaning an empty barrel would include not only a drum or cylinder or similar round part or round bulging vessel, but also a spool or bobbin or similar cylindrical device on which yarn or cloth, tape, rope or cable could be wound. According to the same dictionary a 'drum' means hollow or solid revolving cylinder or barrel. There appears to be no reason for taking a restricted meaning of the word 'barrel' used in the notification, so as to include within its ambit only empty cylindrical vessels in which something could be filled in, but ordinary dictionary meaning should be assigned to the word 'barrel' used in the notification and hollow or solid cylindrical drums like rolling drums round which cables ropes yarn etc. could be wound, should also fall within the item 'Empty barrel'.
30. To our mind it appears that 'barrel' is the generic name while cable or rolling drum is a specie included therein. It was argued before us by learned Counsel for the Department that packing material should be such material within which the goods sold could be packed. We are unable to agree with this contention. It would depend upon the nature of goods as to whether they will be contained or enclosed within the packing material or the goods sold be wound round the packing material. In both cases, the packing material serves the same purpose, namely to put the goods sold be wrapped round or wound round the barrel or drum. Even many a times cloth is wrapped round peices of card board or round wooden card board or plastic rollers, so as to enable the sold goods to be carried by the purchaser. In our view, the hcssian cloth and iron hoops used for packing cotton or gunny bags used for transporting cereals, sugar, cement, fertilizers, other types of bardana or crates for carrying bigger items as also bottles, tins and barrels used for carrying alcohols oils and other liquids, as well as bobbins, reels, or rolling drums made of wood and wooden or polythene rollers used for wrapping yarn, ropes, wires, cables and cloth are all varieties of and constitute various descriptions of packing material in the broad classifications contained in item No. 1 specified in the notification dated March 27, 1971. Of course, such packing material which would fall out side the eight varieties specified in the aforesaid notification would not have benefit of concessional rate of 3% sales tax, which is available in respect of the packing material falling within the aforesaid notification. As we have already observed above, empty rolling drums fall within the description 'empty barrels,' included in Clause (iv) of Item No. 1 of the aforesaid notification and as such the sale of rolling or cable drums, as packing material, was taxable at rate of 3% in accordance with the notification dated March 27, 1971.
31. As a result of the aforesaid discussion, the application for calling reference being treated as a revision petition has no force and is dismissed, but the parties are left to bear their own costs.