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PETITIONER: P.A. THILLAI CHIDAMBARA NADAR

       Vs.

RESPONDENT: THE ADDL. APPELLATE ASSTT. COMMISSIONER. MADURAI & ANR.

DATE OF JUDGMENT29/07/1985

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. MISRA RANGNATH MUKHARJI, SABYASACHI (J)

CITATION:  1985 AIR 1644            1985 SCR  Supl. (2) 339  1985 SCC  (4)  30        1985 SCALE  (2)291  CITATOR INFO :  RF         1991 SC 494  (5)

ACT:      Tamil Nadu General Sales Tax Act, 1959      ’Coconut’ -  Whether ’fresh  fruit’  or  ’vegetable’  - Whether exempt from levy of sales tax.      Words & Phrases      ’Coconut’ - Whether ’fruit’ or ’vegetable’ - Tamil Nadu General Sales Tax Act 1959.

HEADNOTE:      Under G.P.  No.  1764  dated  5.4.1960  as  amended  on 22.12.1960 issued  under the  Tamil Nadu  General Sales  Tax Act,  1959   the  Government  had  exempted  "all  sales  of vegetables (other  than the dried and dehydrated vegetables) fresh fruits, betel and plantain leaves, flowers, eggs, meat and fish  (other than canned meat and fish) from the levy of sales tax under the Act."      The High  Court, held  that since  ripened  coconut  in which the  appellant was  dealing as  a grocer, could not be regarded  as   a  "fresh   fruit"  or   a  "vegetable",  the appellant’s sales  turn-over  in  coconut  in  each  of  the Assessment Years  1967-68, 1968-69 and 1969-70 was liable to sales tax and includible in its taxable turn-over.      Dismissing the Appeals : ^      HELD:  (by   the  Court-per   Tulzapurkar,   Sabyasachi Mukharji and Ranganth Misra JJ.)      1. The  High Court was right in its conclusion that the appellant’s sales  turnover in  coconut was  not exempt from the levy of sales tax. [343 E, 344 G]      2. 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. [342 C, 343 H] 340      Indo International  Industries v. Commissioner of Sales

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Tax, Uttar Pradesh [1981] 3 S.C.R. 294 referred to.      (Per Tulzapurkar, J.)      1. It  cannot be  disputed that  a coconut  would be  a ’fruit’ in  the botanical sense but unless it can be said to be a  ’fresh fruit’  it will  not fall  within the exemption notification. Similarly  a coconut  may be  available  in  a vegetable market  but because  of that  it does not become a ’vegetable. It  is well-known that the kernel of the coconut is used  as an  ingredient in  the culinary preparations for adding taste  to the food on the table but it is hardly used as a  substantial article  of  food  on  the  table.  ’Fresh fruits’  and   ’vegetables’  being   household  articles  of everyday use  will have  to be  construed in  their  popular sense, meaning  the sense  in which  every householder  will understand them.  A householder  when asked  to  bring  some ’fresh fruit’  and some  ’vegetable’ for  the  evening  meal would obviously not bring coconut. [342 F-343 A]      His Majesty  the King  v. Planters  Nut  and  Chocolate Company Limited. [1951] C.L.R. (Ex.) 122 and Commissioner of Sales Tax  v. Jaswant Singh Charan Singh [1967] 2 S.C.R. 720 referred to.      2. The  legislative history  of the  earlier  exemption notifications issued  by the  State  Government  are  of  no assistance to the appellant. All these earlier notifications clearly show  that coconut  was always  subject to sales tax till G.P.  No. 1764 dated April 5, 1960 was issued under the 1959 Act.  There is  no material to show that the Government had changed  its view  and exempted  coconut  from  taxation under the  1959 Act.  Under the earlier notifications merely ’fruits’ had  been exempted from levy of sales tax and since coconut would  have come  within the category of fruits, the same was  expressly  excluded  from  the  exemption  thereby making the same thereof liable to tax. [343 B-D]      (Per Sabyasachi Mukharji, J.)      1. It  cannot be disputed that ripened coconut will not be a  "fresh fruit"  in terms  of the said notification. One cannot be sure on the aspect, that ripened coconut cannot be considered to  be vegetable.  Whether ripened coconut can be considered to be ’vegetable’ or ’fruit’ in any part of India will depend upon the evidence available. Tastes vary, habits differ, and food served, 341 prepared and  consumed at  the tables  in different parts of the country  also vary.  Therefore, it  is safer not to rest the decision on subjective ideas if possible. [344 B-C]      2. It  is for  the assessee  who  claims  exemption  to adduce evidence  that a  particular article  is an  exempted item, and  if he cannot or if he fails to do so, the revenue may proceed  on its basis. In such a situation, the assessee should have  such an opportunity. That opportunity cannot be foreclosed. It  cannot categorically  be said  that  ripened coconut could never be considered to be ’vegetable’. In this case the assessee has adduced no evidence. [344 D-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal Nos. 1434- 35 of 1973.      From the  Judgment and  Order dated  20.12.1972 of  the Madras High  Court in  Writ Petitions  Nos. 1439 and 3425 of 1970.                             AND      Civil Appeal No. 1003 of 1975.      From the  Judgment and  Order  dated  6.3.1974  of  the

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Madras High Court in T.C. No. 71 of 1974.      J. Ramamurthy for the Appellant.      S.T.Desai and A.V.Rangam for the Respondent.      The following Judgments of the Court were delivered :      TULZAPUKAR, J.  Whether a  coconut (neither  tender nor dried but  a ripened  coconut with  or without  husk)  is  a "fresh fruit"  or a "vegetable" so as to earn exemption from the levy  of sales tax under G.G. No. 1764 dated 5.4.1960 as amended on  22.12.1960 issued  under the  Tamil Nadu General Sales Tax Act, 1959 is the question raised in these appeals.      The High  Court  has  held  that  under  the  aforesaid notification the  Government  had  exempted  "all  sales  of vegetables (other  than the dried and dehydrated vegetables) fresh fruits, betal and plantain leaves, flowers, eggs, meat and fish (other than canned meat and fish)" from the levy of sales tax  under the 1959 Act but since a ripened coconut in which the appellant was dealing as a 342 grocer, could  not be  regarded as  a  "fresh  fruit"  or  a "vegetable" the  appellant’s sales  turn over in coconuts in each of  the Assessment  Years 1967-68,  1968-69 and 1969-70 was liable  to sales  tax  and  includible  in  his  taxable turnover. It  is this  view of the High Court which has been challenged before us by counsel for the appellant-assessee.      The canon  of construction to be invoked in these types of  statutes  has  been  repeatedly  enunciated  in  several decisions of  this Court but it is not necessary to refer to all  of   them.  In   Indo   international   Industries   v. Commissioner of  Sales Tax,  Uttar Pradesh  [1981] 3  S.C.R. 294, this court ruled thus:           "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 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."      If regard  be had  to this  rule of  construction,  the question  raised  will  have  to  be  answered  against  the appellant. On the first aspect of the question it can not be disputed that  a coconut would be a ’fruit’ in the botanical sense but  unless it  can be  said to  be a ’fresh fruit’ it will not fall within the exemption notification. Similarly a coconut may  be available  in a vegetable market but because of that  it does  not become a ’vegetable’. It is well-known that the  kernel of  the coconut is used as an ingredient in the culinary  preparations for  adding taste to the food but it is  hardly used  as a  substantial article of food on the table. The  concerned articles  namely, ’fresh  fruits’  and ’vegetables’ being  household articles  of everyday  use for the table  these will  have to be construed in their popular sense meaning  the sense  in which  every  householder  will understand them.  Viewed from  this angle, the most apposite test would be the one adopted in the case of His Majesty the King v.  Planters Nut  and Chocolate  Company Limited [1951] C.L.R. (Ex.) 343

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122  (which   decision  was   approved  by   this  court  in Commissioner of  Sales Tax  v. Jaswant  Singh Charan  Singh) [1967] 2  S.C.R. 720.  Would a  house holder  when asked  to bring home  some ’fresh  fruit’ and some ’vegetable’ for the evening meal  bring coconut? Obviously, the answer is in the negative.      Counsel for  the appellant  sought  to  rely  upon  the legislative  history   by  referring  some  of  the  earlier exemption notifications issued by the State Government under the earlier  Madras General  Sales Tax  Act, 1939 which were operative till the Tamilnadu General Sales Tax Act, 1959 was passed but  in our  view such reliance is of no avail to the appellant.  In   the   first   place   all   these   earlier notifications clearly  show that  coconut was always subject to sales  tax till  G.O. No.  1764 dated 5.4.1960 was issued under the 1959 Act and there is no material to show that the Government had  changed its  view and  exempted coconut from taxation under  the 1959  Act. Secondly,  under the  earlier notifications merely ’fruits’ had been exempted from levy of sales tax  and since  coconut would  have  come  within  the category of  fruits the  same as expressly excluded from the exemption thereby making the sale thereof liable to tax. The legislative history,  therefore, is  of no assistance to the appellant. Similarly,  how coconut  was dealt with under the amendment introduced  by the  Tamil Nadu  Act 2  of 1970  by which coconut  was brought under single point taxation would be immaterial.      In view  of what  is stated above we feel that the High Court was right in its conclusion that the appellant’s sales turnover in  coconut was  not exempt  from the  levy of  the sales tax.  The appeals  are, therefore,  dismissed with  no order as to costs.      SABYASACHI  MUKHARJI,  J.  Under  G.O.  No  1764  dated 5.4.1960,  as   amended  on  22.12.1960,  issued  under  the Tamilnadu General  Sales Tax  Act, 1959,  ’fresh fruit’  and ’vegetable’ are  exempt from  the levy of sales tax. Whether ripened coconut with or without husk can be considered to be ’vegetable’ is the question in these appeals.      I  respectfully   agree   with   my   learned   brother Tulzapurkar J.  that principles  to be  adopted in  deciding that question are well-settled i.e. in interpreting items in statutes 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 of the expressions used, but to their popular meaning, that is to 344 say, the  meaning attached to them by those dealing in them. Fresh fruit’ or vegetable’ has not been defined in the Act.      My learned brothers have come to the conclusion that it cannot be disputed that ripened coconut will not be a ’fresh fruit’ in  terms of  the said  notification, I  respectfully agree. But  my learned brothers have also found that ripened coconut cannot  be considered to be ’vegetable’, I am not so sure  on   this  aspect.  Whether  ripened  coconut  can  be considered to  be a  ’vegetable’ or  ’fruit’ in  any part of India will  depend upon the evidence available. Tastes vary, habits differ  and food served, prepared and consumed at the tables  in   different  parts  of  the  country  also  vary. Therefore, it  is safer  not to  rest our  decision  on  our subjective ideas,  if  possible.  I,  however,  respectfully agree with  the conclusion  reached by  my learned  brothers that the appeals should be dismissed.      It is  well-settled that  it is  for the  assessee  who claims  exemption  to  adduce  evidence  that  a  particular

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article is  an exempted item and if he cannot or if he fails to do so, then the revenue may proceed on its basis. In such a situation,  the assessee  should have such an opportunity. We  cannot   foreclose  such   an  opportunity.   We  cannot categorically  say  that  ripened  coconut  could  never  be considered to  be ’vegetable’. But in this case the assessee has adduced  no evidence. In the premises, the assessee must fail and  I respectfully agree with the order proposed by my learned brothers. N.V.K.                                    Appeals dismissed. 345