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PETITIONER: INDO INTERNATIONAL INDUSTRIES

       Vs.

RESPONDENT: COMMISSIONER OF SALES TAX, UTTAR PRADESH.

DATE OF JUDGMENT25/03/1981

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. VENKATARAMIAH, E.S. (J) SEN, AMARENDRA NATH (J)

CITATION:  1981 AIR 1079            1981 SCR  (3) 294  1981 SCC  (2) 528        1981 SCALE  (1)582  CITATOR INFO :  R          1985 SC1387  (11)  R          1985 SC1644  (7)  RF         1986 SC1730  (8)  RF         1988 SC1087  (8)  RF         1991 SC 999  (14,15)

ACT:      Uttar Pradesh  Sales Tax Act, 1948, Entry No. 39 of the First  Schedule   thereto-"Hypodermic  clinical   syringes"- whether a glass ware.

HEADNOTE:      Upto  November  30,  1973,  there  were  two  competing entries in  the First  Schedule to  the U. P. Sales Tax Act, 1948, so  far as  the item "hypodermic clinical syringes" is concerned, namely,  Entry 39  which ran:  "Glass wares other than hurricane lantern chimneys, optical lenses and bottles" and Entry  44 which  ran: "Hospital equipment and apparatus" and for an item falling under the former the rate of tax was 10% while under the latter the rate of tax was 4% and for an unclassified item  the rate was 3-1/2% From December 1, 1973 onwards Entry 44 was deleted and, therefore, if the clinical syringes  did   not  fall  within  entry  39  it  became  an unclassified item under section 3A(2A) of the U.P. Sales Tax Act, 1948  and the  rate of  tax was  7%. In  view  of  this position that  obtained for  the relevant periods during the assessment year  1973-74 the  appellant-assessee had claimed before  the  assessing  authorities  that  its  turnover  in respect of  syringes for  the period up to November 30, 1973 was liable  to tax  at 3-1/2%, as an unclassified item or in the alternative at 4% as "hospital equipment" under Entry 44 and its  turnover for  the period  from December  1, 1973 to March  31,  1974  was  liable  to  be  taxed  at  7%  as  an unclassified  item.  But,  negativing  its  contentions  the entire turnover was held to be taxable at the rate of 10% on the basis  that clinical syringes fell within the expression "glass ware"  occurring in  Entry 39 and hence the appeal by special leave  on the  question whether  hypodermic clinical syringes could be regarded as glass ware.      Allowing the appeal, the Court ^

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    HELD: 1.  The assessee’s  turnover up  to November  30, 1973  will  fall  under  Entry  44  dealing  with  "hospital equipment" and  the same  would be taxable at the rate of 4% and its  turnover from  December 1,  1974 will be taxable at the rate of 7% as an unclassified item. [298 H]      2: 1.  It is well settled that in interpreting items in statutes like  the Excise  Tax Acts or Sales Tax Acts, whose primary object  is to  raise revenue  and for  which purpose they classify  diverse  products,  articles  and  substances resort should  be had  not to  the scientific  and technical meaning of  the terms  or  expressions  used  but  to  their popular meaning,  that is  to say,  the meaning  attached to them by those dealing in them. If any term or expression has been defined  in the enactment then it must be understood in the sense in which it is defined 295 but in  the absence  of any  definition being  given in  the enactment the  meaning of  the term  in common  parlance  or commercial parlance has to be adopted. [297 C-D]      Ramavatar Budhiaprasad  etc.  v.  Assistant  Sales  Tax Officer, Akola,  [1961] 1  SCR 297 and Commissioner of Sales Tax, Madhya  Pradesh v. Jaswant Singh Charan Singh, [1967] 2 SCR 720, followed.      2  :  2.  The  clinical  syringes  which  the  assessee manufactures and  sells cannot be considered as "glass ware" falling within  Entry 39  of the  First Schedule of the Act. (a) In  commercial sense,  glass ware  would never  comprise articles like  clinical syringes, thermometers, lactometers, and  the   like  which  have  specialised  significance  and utility: (b)  in popular  or commercial  parlance a  general merchant dealing in "glass ware" does not ordinarily deal in articles like  clinical syringes,  thermometers  etc.  which articles though  made of  glass, are  normally available  in medical stores  or with  the manufacturers  thereof like the assessee; (c) it is equally unlikely that consumer would ask for such articles from a glass ware shop. Further in popular sense when one talks of glass ware such specialised articles like clinical syringes do not come up to one’s mind. [298 E- F]      State of  Orissa v.  Janta Medical  Stores, 37  STC 33, approved.      Commissioner  of  Sales  Tax  v.  S.S.R.  Syringes  and Thermometers, 1973 Law Diary 178, overruled.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 151 of 1981.      Appeal by  Special Leave  from the  Judgment and  Order dated 16.8.1969  of the  Addl. Judge  (Revisions) Sales Tax, Saharanpur in Revision Appln. No. 1688/78.      J. Ramamurthi and Miss R. Vaigai for the Appellant.      S. C.  Manchanda. B. P. Maheshwari and Suresh Sethi for the Respondent.      The Judgment of the Court was delivered by      TULZAPURKAR, J. This appeal by special leave raises the question  whether  hypodermic  clinical  syringes  could  be regarded as  "glass ware"  under Entry  No. 39  of the First Schedule to U.P. Sales Tax Act, 1948 ?      The facts  giving rise  to the question lie in a narrow compass.  The   appellant  firm   (hereinafter  called   the assessee)  manufactures   and  sells   hypodermic   clinical syringes. For the assessment year 1973-74 the assessee filed a return  disclosing net  U.P. sales of such syringes at Rs.

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95,065. The disclosed turnover was accepted by the 296 Sales Tax  Officer, Sector III Muzaffarnagar, but as regards the rate  of tax  the assessee  contended that  the clinical syringes in  respect of  their turnover  of Rs.91,513  up to November 30, 1973 should be regarded as an unclassified item and taxed  at the  rate of  3-1/2% or  at  4%  as  "hospital equipment  and  apparatus"  under  Entry  44  of  the  First Schedule to  the Act  and on  the turnover of Rs. 3,552/-for the period  from December  1, 1973  to March 31, 1974 at the rate of  7% as  an unclassified item. The Sales Tax Officer, however, treated  the syringes as "glass ware" and taxed the entire turnover  of Rs.95,065/-  at the  rate of  10%  under Entry No.  39 of the First Schedule. The said assessment was upheld in  appeal by  the Assistant Commissioner (Judicial), Sales  Tax,  Muzaffarnagar  and  also  in  revision  by  the Additional Judge (Revision), Sales Tax, Saharanpur on August 16, 1979. It is this view taken by the assessing authorities as well as by the Additional Judge in revision that is being challenged by the assessee before us in this appeal.      It may  be stated  that up  to November  30, 1973 there were two competing entries in the First Schedule to the U.P. Sales Tax  Act so  far as the item in question is concerned, namely,  Entry   39  which  ran:  "Glass  wares  other  than hurricane lantern  chimneys, optical lenses and bottles" and Entry 44  which ran:  "Hospital equipment and apparatus" and for an item falling under the former the rate of tax was 10% while under  the latter  the rate  of tax  was 4% and for an unclassified item the rate was 3 1/2%. From December 1, 1973 onwards Entry 44 was deleted and, therefore, if the clinical syringes  did   not  fall  within  Entry  39  it  became  an unclassified item  under s.  3A (2A) of the Act and the rate of tax  was 7%.  In view  of this position that obtained for the relevant  periods during the assessment year 1973-74 the assessee had  claimed before  the assessing authorities that its turnover  in respect  of syringes  for the  period up to November 30,  1973 was  liable  to  tax  at  3  1/2%  as  an unclassified item  or in  the alternative at 4% as "hospital equipment" under  Entry 44  and its  turnover for the period from December  1, 1973  to March  31, 1974  was liable to be taxed at  7% as  an unclassified  item. But,  negativing its contentions the  entire turnover  was held  to be taxable at the rate  of 10%  on the  basis that  clinical syringes fell within the  expression "glass  ware" occurring  in Entry 39. Counsel for  the assessee  contended before  us that  in the absence of  any definition  of "glass  ware" in the Act that expression must  be understood  in the  ordinary  commercial parlance and  not in  any scientific and technical sense and if such  test were applied to the instant case then clinical syringes manufactured and sold by the 297 assessee could  never be  regarded as  "glass ware". Counsel pointed  out  that  the  Revising  Authority  negatived  the contention of  the assessee  in view  of a  decision of  the Allahabad High  Court in  the case  of Commissioner of Sales Tax v. S. S. R. Syringes and Thermometers but urged that the contrary view  taken by the Orissa High Court in the case of State of  Orissa v.  Janta Medical Stores that thermometers, lactometers, syringes,  eye-glasses, etc. do not come within the meaning  of the  expression "glass ware" in Entry No. 38 in the  Schedule to  the relevant  Notification issued under the first  proviso to  s. 5(1)  of the Orissa Sales Tax Act, 1947 was  correct. In  our  view  counsel’s  contention  has considerable force and deserves acceptance.      It is  well  settled  that  in  interpreting  items  in

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statutes like  the Excise  Tax Acts or Sales Tax Acts, whose primary object  is to  raise revenue  and for  which purpose they classify  diverse  products,  articles  and  substances resort should  be had  not to  the scientific  and technical meaning of  the terms  or  expressions  used  but  to  their popular meaning,  that is  to say,  the meaning  attached to them by those dealing in them. If any term or expression has been defined  in the enactment then it must be understood in the sense  in which  it is defined but in the absence of any definition being  given in  the enactment the meaning of the term in  common parlance  or commercial  parlance has  to be adopted. In  Ramavatar Budhiaprasad, etc. v. Assistant Sales Tax Officer,  Akola the  question was whether ’betel leaves’ fell within  item ’vegetable’  so as  to earn exemption from sales tax  and this Court held that word ’vegetable’ had not been defined in the Act, and that the same must be construed not in  any technical  sense nor from the botanical point of view but  as understood  in common parlance and so construed it denoted those classes of vegetable matter which are grown in kitchen  garden and  are used  for the  table and did not comprise betel leaves within it and, therefore, betel leaves were not exempt from taxation: In Commissioner of Sales Tax, Madhya Pradesh  v. Jaswant  Singh Charan  Singh the question was whether  the item  ’coal’ under  Entry 1  of Part III of Second Schedule  to Madhya  Pradesh General  Sales Tax  Act, 1958 included charcoal or not and this Court observed thus:           "Now, there  can be  no dispute that while coal is      technically understood  as a  mineral product, charcoal      is manu- 298      factured by  human agency  from products  like wood and      other things.  But it  is now  well-settled that  while      interpreting items in statutes like the Sales Tax Acts,      resort should  be had  not to  the  scientific  or  the      technical meaning  of such  terms but  to their popular      meaning or  the  meaning  attached  to  them  by  those      dealing in  them, that  is to  say, to their commercial      sense." Viewing the question from the above angle this Court further observed that both a merchant dealing in coal and a consumer wanting  to  purchase  it  would  regard  coal  not  in  its geological sense  but in  the sense as ordinarily understood and would  include ’charcoal’  in the  term "coal", and held that ’charcoal’  fell within  the concerned  Entry No.  1 of Part III of Schedule II of the Act.      Having regard  to the  aforesaid well-settled  test the question is  whether clinical  syringes could be regarded as "glass ware"  falling within  Entry 39 of the First Schedule to the  Act ?  It is true that the dictionary meaning of the expression "glass  ware" is  "articles made  of glass" (See: Websters New World Dictionary). However, in commercial sense glass ware  would  never  comprise  articles  like  clinical syringes, thermometers,  lactometers and the like which have specialised  significance   and  utility.   In  popular   or commercial parlance  a general  merchant dealing  in  "glass ware" does  not ordinarily  deal in  articles like  clinical syringes, thermometers,  lactometers,  etc.  which  articles though made  of glass,  are normally  available  in  medical stores or  with the manufacturers thereof like the assessee. It is  equally unlikely  that consumer  would ask  for  such articles from  a glass  ware shop. In popular sense when one talks of  glass ware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come up to one’s mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the

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assessee manufactures  and sells  cannot  be  considered  as "glass ware"  falling within  Entry 39 of the First Schedule of the Act.      In our opinion, the view taken by the Orissa High Court in State  of Orissa  v.  Janta  Medical  Stores  (supra)  is correct  and  the  view  of  the  Allahabad  High  Court  in Commissioner  of  Sales  Tax  v.  M/s  S.S.R.  Syringes  and Thermometers (supra) is unsustainable.      In this  view of  the  matter  it  is  clear  that  the assessee’s turnover  up to November 30, 1973 will fall under Entry 44 dealing with 299 "hospital equipment"  and the  same would  be taxable at the rate of  4% and  its turnover from December 1, 1973 to March 31, 1974  will be  taxable at the rate 7% as an unclassified item and the assessment will have to be made accordingly.      In the  result the  appeal is allowed but there will be no order as to costs. S. R.                                        Appeal allowed. 300