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Indian Express (Madurai) Ltd. Vs. Deputy Commercial Tax Officer, Mount Road Division Ii, and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtChennai High Court
Decided On
Case Number Writ Petition Nos. 1360 and 1361 of 1968
Judge
Reported in[1972]29STC88(Mad)
AppellantIndian Express (Madurai) Ltd.
RespondentDeputy Commercial Tax Officer, Mount Road Division Ii, and ors.
Appellant Advocate V.K. Thiruvenkatachari, Adv. for A.R. Ramanathan, Adv.
Respondent Advocate K. Venkataswami, First Assistant Government Pleader
Disposition Petition allowed
Cases ReferredIn Ganesh Prasad Dixit v. Commissioner of Sales Tax
Excerpt:
.....division, was unsuccessful, since the deputy commissioner was of the view that the petitioner was not entitled to include news-print as an item for purchase in the application for registration. the respondents failed in their public duty in refusing the inclusion of news-print in the certificate of..........whether newspapers are goods for which a dealer registered under the relevant provisions of the central sales tax act, 1956, is entitled to obtain a certificate under section 7 of the above act read with section 8 thereto, so as to gain a concessional rate of tax as prescribed in the act. messrs indian express (madurai) limited is a company incorporated under the indian companies act and is a publisher of english and tamil daily newspapers and also weekly journal with its registered office at madurai and allied offices at bangalore, madras and vijayawada. in the course of its business of printing and publishing newspapers, it is common ground that it purchases news-print, white printing paper, printing ink, papers and boards, metals, lead type, photographic materials, etc., for the.....
Judgment:
ORDER

Ramaprasada Rao, J.

1. In these two writ petitions an interesting question has arisen, whether newspapers are goods for which a dealer registered under the relevant provisions of the Central Sales Tax Act, 1956, is entitled to obtain a certificate under Section 7 of the above Act read with Section 8 thereto, so as to gain a concessional rate of tax as prescribed in the Act. Messrs Indian Express (Madurai) Limited is a company incorporated under the Indian Companies Act and is a publisher of English and Tamil daily newspapers and also weekly journal with its registered office at Madurai and allied offices at Bangalore, Madras and Vijayawada. In the course of its business of printing and publishing newspapers, it is common ground that it purchases news-print, white printing paper, printing ink, papers and boards, metals, lead type, photographic materials, etc., for the production and publication of such newspapers. The petitioner was registered as a dealer under Section 20 of the Madras General Sales Tax Act, 1959. Besides publishing newspapers, the petitioner, out of necessity, disposes of waste paper and other materials not required for its main business and which materials were purchased by it in the course of and for its business. Such materials which were sold by the petitioner included unsold newspapers as well. In this context the petitioner made an application under Section 7(1) of the Central Sales Tax Act on 24th April, 1965, to the 1st respondent requesting for registration as a dealer, in the prescribed form. The 1st respondent was of the view that the petitioner was entitled to registration as a dealer only in respect of waste paper and sought to exclude from the certificate of registration all other items, and invited objections thereto from the petitioner. After hearing the petitioner, the first respondent registered the petitioner as dealer only in respect of waste papers. The first respondent was of the view that the other goods were not required for the purpose of manufacturing or processing of waste paper for sale. A revision petition to the Deputy Commissioner for Commercial Taxes, Madras Division, was unsuccessful, since the Deputy Commissioner was of the view that the petitioner was not entitled to include news-print as an item for purchase in the application for registration. A further revision petition as against the order of the 2nd respondent was filed before the Commissioner of Commercial Taxes, who, by his order dated 21st February, 1968, which is challenged herein, held that newspapers are not goods as defined in Section 2(d) of the Central Sales Tax Act and, therefore, the other class or classes of goods, the inclusion of which in the certificate of registration was prayed for by the petitioner, could not be done. It is as against this order of the Commissioner of Commercial Taxes that the petitioner has come up to this court. The main contention of the learned counsel for the petitioner is that the fact that 'newspaper' is taken out from the definition of 'goods' in the Central Sales Tax Act or under the Madras General Sales Tax Act would not disentitle the petitioner from its entitlement to seek inclusion of newspaper as such in the certificate of registration sought for under Section 7 read with Section 8 of the Central Sales Tax Act. The exemption of newspaper from sales tax and the consequential non-inclusion of newspaper from the definition of 'goods' in the relevant taxing statutes would not make 'newspaper', which is undoubtedly goods, as not goods. It is in this light a rule is sought to quash the order which refused to register the petitioner under the Central Sales Tax Act in the manner suggested above. It is claimed that the order of refusal made by the revenue is illegal, arbitrary and suffers from an error of law apparent on the face of the record. The fact that the petitioner sells waste paper, which is ,a by-product, in the course of manufacture of newspaper is by itself sufficient to confer on the petitioner the right to secure the certificate of registration as prayed for. The revenue practically repeats the view of the Commissioner of Commercial Taxes and says that as long as 'newspaper' is not contained in the definition of 'goods', it cannot be treated as such for any purpose, including the purpose of issuing a certificate of registration to the dealer in newspapers under Section 7 of the Act.

2. Before I deal with the relevant statutory provisions in the Central Sales Tax Act, 1956, regarding registration of dealers and particulars which a certificate of registration can and should contain, it is necessary to have a short retrospect as to how 'newspaper' was dealt with by sales tax laws prior to and after the Constitution of India was enacted. In the pre-Consti-tution period and under the Government of India Act, 1935, there was a provision in entry 48 of List II of the Seventh Schedule which enabled the levy of sales tax on newspapers and advertisements. The Madras General Sales Tax Act, 1939, which provided for the levy of a general tax on the sale of goods in the State of Madras, defined 'goods' in Section 2(c) therein as meaning all kinds of movable property other than actionable claims, stocks and shares and securities and including all materials, commodities and articles. Thus, 'newspaper' was dealt with as goods and taxed as such under the Madras General Sales Tax Act, 1939. The Constitution of India made certain specific provision regarding newspapers. Under item 54, List II, of the Seventh Schedule to the Constitution of India the State has the power to tax a sale or purchase of goods other than newspapers. Under item 92, List I, of the Seventh Schedule to the Constitution of India, the Centre retained such a power to tax on the sale or purchase of newspapers and on advertisements published therein. It is seen, however, that the State could continue the levy of tax on sale of newspapers under Article 277 of the Constitution which is a saving article reading thus;

Any taxes, duties, cesses or fees which, immediately before the commencement of this Constitution were being lawfully levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality, district or other local area may, notwithstanding that those taxes, duties, cesses or fees are mentioned in the Union List, continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law.

3. Under this article a provision is made for the continuance of a levy of tax notwithstanding the fact that the power to levy or impose such a tax is mentioned in the Union List until provision to the contrary is made by Parliament by law. Thus, once again the State had the power to levy tax on the sale of newspapers even after the Constitution was enacted, until Act 28 of 1951 was made by the Parliament. Act 28 of 1951, which was captioned as 'The Tax on Newspapers (Sales and Advertisements) Repeal Act, 1951', provided for the repeal of certain State laws in so far as they sanction the levy of taxes on the sale or purchase of newspapers and on advertisements published therein. Thus, from the date of the passing of Act 28 of 1951, the State's power to levy sales tax on the sale of newspapers etc., ceased. The Constitution (Sixth Amendment) Act, 1956, came into force on 11th September, 1956. Under this amendment both entry 54 in the State List and entry 92 in the Union List were amended. Entry 54 as amended by the Sixth Amendment reads as follows :

Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List I.

4. Entry 92A of the Union List reads as follows:

Taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce.

5. In fact, the Central Sales Tax Act, 1956, is the product of this amendment of the Union List and it was enacted as Act No. 74 of 1956 on 21st December, 1956. Though the Sixth Amendment to the Constitution came into force on 11th September, 1956, and the Central Sales Tax Act, 1956, was passed on 21st December, 1956, yet in the definition of 'goods' in Section 2(d) of the said Act 'newspaper' was not excluded. This anomalous position continued till the Central Sales Tax (Amendment) Act, 1958, was passed which came into effect on 1st October, 1958. It is only in the second amendment to the Central Sales Tax Act that in the definition of 'goods' the word 'newspapers' was sought to be excluded. Section 2(d) of the (sic) Central Sales Tax (Amendment) Act, 1958, reads as follows:

'Goods' includes all materials, articles, commodities and all other kinds of movable property, but does not include newspapers, actionable claims, stocks, shares and securities.

6. By way of completion I may add that the definition of 'goods' under the Madras General Sales Tax Act, 1959, was also amended, though it was not necessary, so as to exclude newspapers.

7. I have referred to the above provisions only to gain the impression that at all material times prior to the amendment of the definition of 'goods' in Section 2(d) of the Central Sales Tax Act, 1956, ''newspapers' was included as goods, the sales and purchases in respect of which were liable to tax. It follows, therefore, that when Section 2(d) of the Central Sales Tax Act, 1956, was amended so as to exclude 'newspapers' the primary intention was to avoid taxing of sales or purchases of newspapers. That does not necessarily mean that 'newspaper' ceases to be 'goods' for all purposes and even in the popular sense.

8. It is in the light of the above background that the scope of sections 7 and 8 of the Central Sales Tax Act, hereinafter referred to as the Act, must be considered. Section 7, which is divided into several parts, deals with several topics. In the main it deals with registration of dealers liable to pay sales tax under the Act and those who are not so liable but liable under the relevant State law. The procedural aspect, which is also reflected in the section, deals with the grant of registration certificate, making amendments thereto and states how such a certificate could be cancelled. The more important aspect with which we are concerned is the effect of registration. It confers a privilege on a person purchasing goods in the course of inter-State trade or commerce, for he can purchase goods against what is commonly called 'C' forms. The out of State vendor in such a case will charge only a concessional rate of tax. This boon is the immediate result of registration of dealers under the Act, which would enable them to issue the 'C' form. It is imperative to remember that the purchasing dealer who gained the concession or privilege of a lower rate of tax, should specify those goods in his application for registration and get them included in it. Such goods are intended for resale by him or subject to any rules made by the Central Government in this behalf, for use by him in the manufacture or processing of goods for sale, etc. It is thus seen that whilst the benefit of the concession extends to purchases of goods intended for resale, in the case of goods for use by the purchasing dealer in the manufacture or processing of goods for sale, then all such raw materials, processing materials, machinery, plant, equipment, tools, spare parts, accessories, fuels or lubricants, and one or more or all required for use in the manufacture or processing of the goods for sale are also includible in the certificate of registration. This is as per Rule 13 of the Central Sales Tax Rules, 1957. Even Section 8 makes this position clear. Therefore the intendment of the provision such as Sections 7 and 8 of the Act is abundantly clear. If goods are purchased in the course of inter-State trade and commerce and if they are used in the manufacture or processing of goods for sale by him, then also the dealer in question, provided he is a registered dealer, is entitled to file an application under Section 7 and ask for the issue of a certificate of registration including all those ancillary material required by him for the manufacture or processing of the ultimate goods for resale by him.

9. The revenue's contention is that though it is accepted that the petitioner manufactures newspapers and for that purpose all the materials stated by him in his application for registration might be used for the ultimate manufacture of the newspapers, yet in view of the definition in Section 2(d) of the Act, the petitioner would not be entitled to the issue of a certificate of registration as prayed for. It is this aspect which is prominently pressed into service by the Commissioner of Commercial Taxes who said that the inclusion of the goods and the class or classes of goods specified in the certificate of registration of the petitioner for use in the manufacture or processing of newspapers is not correct, as with effect from 1st October, 1958, newspapers are not goods as defined in Section 2(d) of the Act. He therefore negatived the claim to specify news-print in the relevant column of the registration certificate.

10. No doubt, it is fundamental that the definition clause in a statute is by itself a small dictionary of its own in which it endeavours to define certain words and terms, sometimes arbitrarily. But invariably it takes the precaution of using a non obstante clause such as 'unless there is anything repugnant in the subject or context' in the beginning of the section. Thus, if in the course of the statute some words are used in different parts thereof, then it would not be improper to interpret those words differently if the context so requires. Sale or purchase of newspapers was subject to sales tax until 1st October, 1958. Thereafter it was exempt. Therefore, the mere grant of an exemption in regard to the taxability of the sale of such newspaper cannot convert what are popularly goods as otherwise. In such circumstances the background on the subject which I have set out earlier looms large. Newspaper was always considered as goods, but it was excluded from the definition in Section 2(d) of the Act solely for the purpose of taking it out from the net of taxation. That does not mean that for all purposes and under the other provisions of the Act newspapers ceased to be goods and they cannot be considered as goods for the purpose of sections 7 and 8 of the Act. It is not unusual for the same word being used in different senses in the same statute or even in the same section. As pointed out by Craies on Statute Law, Sixth Edition, at page 168 :

It is a sound rule of construction', said Cleasby, B., in Courtauld v. Legh (1869) L.R. 4 Ex. 126 'to give the same meaning to the same words occurring in different parts of an Act of Parliament.' The presumption that the same words are used in the same meaning is, however, very slight and it is proper, 'if sufficient reason can be assigned to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act.'

11. In Ganesh Prasad Dixit v. Commissioner of Sales Tax, Madhya Pradesh (1970) 1 S.C.J. 68 the Supreme Court considering the provisions of the Madhya Pradesh General Sales Tax Act and dealing with the definition of 'dealer' which meant any person who carries on the business of buying, selling, supplying or distributing goods directly or otherwise, expressed the view 'that a person to be a dealer within the meaning of the Act need not both purchase and sell goods ; a person who carries on the business of buying is by the express definition of the terra in Section 2(d) a dealer'. I am only quoting this for the purpose of showing that the definition in a section of a statute should not be always subject to a wooden interpretation, but sometimes it ought to be liberally understood in accordance with the context in which the defined word appears. As a matter of fact, the learned Government Pleader has no quarrel with the proposition that if specified goods are exempted under the executive fiat then such goods purchased by a registered dealer could be included in the certificate of registration. If this is possible it fails reason, as to why news-print which is undoubtedly goods cannot be so indued in the certificate of registration along with the other articles for which a request for such an inclusion was made by the petitioner, if it is common ground that news-print is an essential ingredient for the use in, and manufacture of, newspapers. News-print is undoubtedly merchandise or ware. In the context in which the expression appears in sections 7 and 8, it retains the same meaning. It does not cease to be goods as such merely because the Act or any other taxing law exempts the same from being caught in the purview of taxation in relation to its commercial dealings. It is in this view several exemptions are granted by the appropriate authority where-under certain goods, though subject to sale or purchase, are not brought to tax. Having regard to the non obstante clause in Section 2 that if the context requires that the defined word should be understood in a manner different from that stated in the definition itself, I am of the view that the word 'goods' appearing in sections 7 and 8 need not be subject to the rigid definition of 'goods' appearing in Section 2(d), which for purposes of taxability under the Act, excludes newspapers. The purpose behind the exclusion is also obvious since newspapers reach the common man and if such sales are also subject to sales tax, then the cost to the commoner would increase. It is to subserve this social object of wide importance that the Parliament excluded newspaper from the stream of taxation. That does not necessarily mean that news-print which is ordinary commercial ware or merchandise, ceased to be so and newspaper is not goods. It continues to be so notwithstanding the peculiar definition of 'goods' in Section 2(d) of the Act. Thus understood, the petitioner is entitled to apply for obtaining a certificate of registration under Section 7 of the Act so as to include newsprint and all other articles for which such a request was made. This is undoubtedly a reasonable request which ought to have been granted by the authorities. The respondents failed in their public duty in refusing the inclusion of news-print in the certificate of registration. It is very curious that the revenue is prepared to specify in the certificate of registration waste paper, as if the petitioner is manufacturing waste paper for sale. Waste paper is a by-product in the course of manufacture of newspaper. It is not the case of the revenue that the petitioner is a dealer in waste paper. On the other hand, it is admitted that it manufactures newspapers. Once the entitlement as to the inclusion of waste paper in the certificate of registration is conceded, it reasonabty follows that the petitioner would also be entitled to the inclusion of news-print in the certificate of registration, for it is the manufacture of newspaper that produces waste paper. Whilst making the rule nisi in W. P. No. 1360 of 1968 absolute, I issue a rule in the nature of mandamus in W. P. No. 1361 of 1968 directing the respondents or the appropriate authority to include news-print in the certificate of registration and all other ancillary material required for the manufacture and sale of newspaper, which is the commercial activity of the petitioner as a registered dealer and such a certificate shall be issued forthwith, as claimed by the company and has to be specified in its certificate of registration. It may not be out of place to mention in conclusion that such a certificate has been issued by the Mysore State under similar circumstances. The writ petitions are allowed and there will be no order as to costs.


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