Andhra HC (Pre-Telangana)
Saraswathi Chemicals, Vijayawada vs State Of Andhra Pradesh on 4 October, 2001
Equivalent citations: 2001(6)ALD301
JUDGMENT S.R. Nayak, J.
1. The short question that arises for decision in these tax revision cases is whether the 'printing ink' in which the petitioner deals falls within Entry 45 of First Schedule of the APGST Act or not ?
2. The petitioner in both the TRCs is the same viz., M/s. Saraswathi Chemicals. The petitioner is the manufacturer of newspapers printing ink meant for newspaper printing only. The Assessing Authority treated such printing ink as unclassified goods and subjected the disputed turnovers to tax at the rate of 5%. The Deputy Commissioner revised the orders of the Assessing Authority and subjected the disputed turnovers at the higher rate of 9% by treating the 'Printing Ink' as falling under Entry 45 of First Schedule. The petitioner being aggrieved by the orders of the Deputy Commissioner in revision has preferred appeals to the Sales Tax Appellate Tribunal (for short 'the Tribunal'). The Tribunal affirmed the view taken by the Deputy Commissioner. Hence these TRCs against that opinion.
3. Sri Kumar, learned Counsel for the petitioner would strenuously contended that that since there is no 'comma' between the words 'Lithographic; and 'Printing' in Entry 45, a reasonable construction would be that Entry 45 embraces only two kinds of goods viz., 'Lithographic Printing Ink' and 'Duplicating ink' and the view taken by the Tribunal that Entry 45 comprehends three kinds of goods viz., 'Lithographic Ink', 'Printing Ink', and 'Duplicating Ink' is totally erroneous and against the well-settled principles of interpretation of statutes. In support of this submission, the learned Counsel for the petitioner placing reliance on the judgment of the Supreme Court in Gurusahai Saigal v. Commissioner of Income Tax, Punjab, , would maintain that the opinion of the Tribunal tantamounts to amending Entry 45 of the APGST Act. The learned Counsel would also contend that Entry 45 of First Schedule as amended by Amendment Act No. 49 of 1976 with effect from 1-9-1976 includes only 'lithographic printing inks and duplicating inks' and that Entry does not include 'printing ink'. The learned Counsel would contend that 'printing ink' is different form 'lithographic printing ink' and therefore 'printing ink', manufactured and sold by the petitioner cannot be considered as an item falling under Entry 45 of First Schedule. In support of this contention, Sri Kumar, learned Counsel would refer to Entry 44 as introduced by Amendment Act 16/63 with effect from 1-8-1963.
4. On the other hand, the learned Special Government Pleader for Taxes would support the impugned order and maintain that merely because, the punctuation 'comma' is not found after the word 'lithographic', it would not reasonable be said that Entry 45 includes only two kinds of inks and not other form of ink like newspapers printing ink', The learned Special Government Pleader for Taxes would highlight that 'lithography' itself is a form of printing and therefore, there was no need for the Legislature to mention the word 'printing' to qualify the word 'lithograph'.
5. In order to appreciate the contention of the learned Counsel for the parties, it would be useful and necessary First to notice the relevant entries in the Schedule to the APGST Act which related to various kinds of inks included in the First Schedule. Entry 44 which was introduced by Amendment Act 16/63 with effect from 1-8-1963 was as follows:
"Paints, colours, varnishes, lithographic, printing and duplicating inks".
Subsequently, by Amendment Act 5 of 1974, Entry 45 was introduced with effect from 1-3-1974 referring to the goods mentioned in the same manner as in Entry 44 introduced by Act 16/63. Subsequently, by Amendment Act 49/76 Entry 45 was amended with effect from 1-9-1976. The amended Entry 45 is as follows:
"Paints, colours, dry distempers, varnishes and blocks, cellulose, lacquers, polish pigments, indigo enamels, cement based water paints, oil bound distemper, water pigments, finishes for leather or plastic emulsion paints, turpentine oil, bale oil, white oil and tinners and also lithographic printing and duplicating inks."
6. Though there was some controversy before the Tribunal as to whether there exists (,) 'comma' between the word 'lithographic' and 'printing' in Entry 45, as can be seen from the order of the Tribunal, the original Gazette wherein Amendment Act 49 of 1976 was published, was summoned and the Tribunal after perusing the same has pointed out that there is no 'comma' after the word 'lithographic'. Therefore, we take it that there is no 'comma' after the word 'lithographic' in Entry 45.
7. As per the Chambers Dictionary, the word 'lithography' mean ' a print produced by lithography' and the word 'lithographic' means 'a method of printing from a stone or metal plate that makes use of the immiscibility of oil and water, the image to be printed being receptive to the oil based ink, and the rest of the plate to moisture, so that when ink come into contract with dampened plate, only the image prints'. The meaning of the words 'lithography' and 'lithographic' would clearly indicate that lithography itself is a method of printing and therefore, there was absolutely no reason for the Legislature to qualify the word 'lithographic' by using the word 'printing' as an adjective after the word 'lithographic' in Entry 45.
8. In the premise of the above meaning of the words 'lithography' and 'lithographic', the question to be considered is whether the existence of the punctuation mark 'comma' between the words 'lithographic' and 'printing' in Entry 44 and the absence of the same in Entry 45 would make any difference in construing Entry 45. According to the learned Counsel for the petitioner, Entry 45 includes only two kinds of inks viz., lithographic printing ink and duplicating ink, whereas according to the Revenue, Entry 45 includes three kinds of inks viz., lithographic ink, printing ink and duplicating ink and since the ink manufacutred and sold by the petitioner admittedly being a printing ink, it falls under Entry 45 and the turnover of the petitioner in printing ink has to be taxed treating the goods as the one falling under Entry 45.
9. The punctuation of a statute may lend some assistance in its construction, but when the intention of the statute and the punctuation thereof are in conflict, the former must control the latter, even where the punctuation is regarded as a part of the statute. In other words, the punctuation will not control the plain meaning of the text of an enactement. Punctuation is always subordinate to the text, and the retention of a word is of far more importance than the position of a comma. Indeed, the Court may punctuate, or disregard existing punctuation, or repunctuate in order to give the legislative intention effect. If the true meaning of the Legislature appears from the entire enactment, errors, mistakes, omissions and misprints may be corrected by the Court, so that the legislative will may not be defeated. As a result, in Croawley v. Arcadia Parish Policy Jury, 138 La 488, spelling in re Petersen's Will, 172 N.W 206, Grammar, in Capp v. People, 64 Colo.58, numbers and in Black v. Louisiana Cental Lumber Company, 161 La. 889, even words were corrected by the Courts. In Black's case (supra), where, in a statute reading -".......where the usefulness of a member of any physical function is seriously permanently impaired," the word "of after "member" was read as "or", since it was obviously a typographical error." It was so read obviously because in a case of that nature, there could hardly be any possible doubt concerning the real intention of the lawmakers with reference to the use of the word inadvertently. The pith of the rule is to make the strict letter of a statute yield to the obvious intent of the legislators. In England, before 1850, there was no punctuation in the manuscript copy of any Act which received the Royal assent, therefore, the Courts cannot have any regard to punctuation for construing the older Acts. Even as regards modern Acts, as opined by Lord Reid in IRC v. Hinchy, (1960) 1 All ER 505, it is very doubtful if punctuation can be looked at for purposes of construction. The opinion on Indian Statutes is not very much different. Dealing with the Regulation VIII of 1891, Lord Hobhouse in Maharani of Burdwan v. Krishna Kamini Dasi, ILR 14 PC 372, stated:
"It is an error to reply on punctuation in construing Acts of the Legislature".
Again while construing Article 48 of the Indian Limitation Act, 1908, which read 'for specific moveable property lost or acquired by theft, or dishonest misappropriation or conversion, or for compensation for wrongfully taking or detaining the same', Lord Warrington in Levis Pung Evans Pugh v. Ashutosh Sen, AIR 1929 PC 69, rejected the contention that the word 'dishonest' qualified not only 'misappropriation' but also 'conversion' bringing only dishonest conversion within the Article, and observed:
"The Truth is that, if the article is read without the commas inserted in the print, as a Court of law is bound to do, the meaning is reasonably clear."
B.K. Mukherjea, J, in Aswini Kumar Ghose v. Arabinda Base, , expressed himself as follows:
"Punctuation is after all a minor element in the construction of a statute, and very little attention is paid to it by English Courts. It seems, however, that in the vellum copies printed since 1850, there are some cases of punctuation, and when they occur they can be looked upon as a sort of contemporanea exposifio. I need not deny that punctuation may have its uses in some cases, but it cannot certainly be regarded as a controlling element and cannot be allowed to control the plain meaning of a text."
In Statutory Interpretation by Francis Bennion - 3rd Edition, in Section 258, Punctuation, it is stated:
"Its punctuation forms part of an Act, and may be used as a guide to interpretation. Punctuation is generally of little weight however, since the sense of an Act should be the same with or without its punctuation.
Punctuation is a device not for making meaning, but for making meaning plain. Its purpose, as Bouvier said, is to denote the stops that ought to be made in oral reading, and to point out the sense. Drafters are instructed that they should on no account allow the meaning to turn on the presence or absence of a punctuation mark. The good drafter consciously drafts every clause with an eye to what its sense would be if all such marks were removed."
It is apposite to notice a choice example of how grammatical ambiguity can be resolved one way or the other through the use of punctuation given by the law reporter James Burrow in his Essay on Punctuation quoted by Megarry V-C in Marshall v. Cottingham, [1982] Ch 82 at 88. It reads -
Every lady in this land, Hath twenty nails upon each hand;
Five and twenty on hands and feet, And this is true without deceit.
A rearrangement shows the truth -
Every lady in this land hath twenty nails;
Upon each hand five, And twenty on hands and feet;
And this is true without deceit.
It would thus seem from all the foregoing that punctuation cannot be relied upon as an infallible guide to the meaning of a statute, perhaps those cases which allow its use only when all other means have proved futile, announce the most practical rule, unless the Court can be sure that the statute was accurately punctuated when enacted.
10. The intention of the Legislature must be primarily ascertained from the language used. This obviously means, as a general rule, that the Courts have no power to add to, or to change, alter, or eliminate the words which the Legislature has incorporated in a statute, not even in order to provide for certain contingencies which the Legislature failed to meet, or to avoid hardship flowing from the language used, or to advance the remedy of the statute. It is well established rule or interpretation that full effect should be given to every word of the statute, if at all possible; that the Court should always seek to harmonise and make every part of the statute operative. In other words, no part of a statute - whether it be sentence, clause, phrase, or word - should be considered as mere surplusage or as devoid of meaning, if it can possibly be avoided. Words may be disregarded only in order to conform with or to effectuate the legislative intent, and not to alter or change it. A presumption had to be drawn in construing and interpreting the statute that the lawmaker does nothing in vain. If that is so, the Court must endeavour to give significance and meaning to every word of an enactment. In other words, it is presumed that if a word or phrase appears in a statute, it was put there for a purpose and must not be disregarded. Faianjali Shastry, CJ., in Aswini Kumar Ghose 's case (supra) has observed:
"It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute".
In Rao Shiv Bahadur Singh v. State of U.P., , Jagannadhadas, J, has opined:
"It is incumbent on the Court to avoid a construction, if reasonably permissible on the language, which would render a part of the statute devoid of any meaning or application".
In J.C. Cotton Spinning and Weaving Mills Company Limited v. State of U.P. , Das Gupta, J has observed:
"the Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect."
To the same effect, the opinion of the Apex Court in Shri Mohammad Alikhan v. The Commissioner of Wealth Tax, AIR 1997 SC 1165, P 1167. In Quebec Railway, Light, Heat and Power Company v. Vandry, AIR 1920 PC 181, p 186, the Privy Council held:
"The Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the Legislature will not be accepted except for compelling reasons".
In Ghanshyamdas v. Regional Assistant Commissioner, Sales Tax, , the Supreme Court has opined:
"that a construction which attributes redundancy to the Legislature will not be accepted except for compelling reasons."
The opinion in Hill v. Williams Hill (Park Lane) Limited, (1949) 2 All ER 452 (HL) that when the Legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out", is quoted with approval by the Apex Court in Umed v. Rajsingh, . If the contention of Sri Kumar, learned Counsel for the petitioner that Entry 45 covers only two kinds of inks, viz., 'lithographic ink' and 'duplicating ink', and not 'printing ink' is accepted, the word 'printing' would become surplusage and otiose and such an interpretation can never be placed on Entry 45 having due regard to the aforementioned principles. In that view of the matter, the opinion formed by the Tribunal that the absence of 'comma' after the word 'lithography' in Entry 45 seems to be an accidental slip and that Entry 45 includes not only 'lithographic ink', and 'duplicating ink', but also the 'printing ink, is well founded. It is true that 'comma' is present in between the words 'lithographic' and 'printing' in Entry 44 introduced by Act 16/63 while such comma is absent in Entry 45 as amended by Amendment Act 49/76 between those two words. But we are of the considered opinion that such absence of punctuation 'comma' in between the above two words in Entry 45 does not take away 'newspaper printing ink' manufactured and sold by the petitioner from the purview of Entry 45. We say this because Entry 44 specifically referred to the inks mentioned therein as 'lithorgraphy', 'printing' and 'duplicating inks'. In other words, Entry 44 in clear terms included three kinds of inks, viz., (i) lithographic ink (ii) printing ink and (iii) duplicating ink. Entry 45 which was subsequently introduced also refers to the inks in the same sequence as 'lithographic printing and duplicating inks'. If the law maker, the Legislature really intended to exclude 'printing ink' which is admittedly one of the three kinds of inks mentioned in Entry 44, from the subsequent substituted Entry 45, such inention of the Legislature would have made abundantly clear by incorporating 'lithographic and duplicating inks' in Entry 45 and there would not have been any necessity to use the word 'printing' also immediately after the word 'lithogrphic' in Entry 45. The word 'lithographic', according to the dictionary meaning, is one process of printing, and therefore, the ink used for such process of printing is called 'lithographic ink', and therefore the words 'lithographic printing ink' would not make a difference sense in the First place and secondly, the addition of the word 'printing' in Entry 45 would become totally unnecessary and avoidable addition if we were to accept the contention of the learned Counsel for the petitioner. In ordinary as well as commercial parlance, the ink used for 'lithography' is called 'lithographic ink' and it is not called 'lithography printing ink'. By adding the additional word 'printing' after the word 'lithographic' in Entry 45, no other meaning would be conveyed except the meaning the words 'lithographic ink' conveys. It is also relevant to notice that in Entry 45 as amended by Amendment Act 49/76, number of single point goods such as paints, colours, varnishes etc., besides the kinds of inks are included in order to subject them to sales tax at the point of first sale. Looking from that angle also, it can safely be said that it would not have been the intention of the Legislature to omit the 'printing ink' in Entry 45 as amended by Amendment Act 49/76 from the three kinds of inks which were earlier admittedly included in Entry 44 as well as in Entry 45 as amended by Amendment Act 5/74.
11. Apart from this, the Tribunal has referred to relevant passages from the text book 'Printing Inks Manufacture' by A.K Rastogi and observed, thus:
"The learned Counsel for the appellant has however tried to contend that the ink used for lithographic work is called as 'lithographic printing ink', and not merely as 'lithographic ink' and that therefore, the Legislature by omitting the comma in between the two words 'lithographic' and 'printing' meant only to include 'lithographic printing ink' and exclude 'printing ink' in Entry 45. He has also tried to rely upon the relevant passages contained at pages 1 and 2 in the text book 'Printing Inks Manufacture' by A.K. Rastogi in support of his contention. But such contention cannot be accepted and the relevant passage in the above said text book cannot be said to be of any use for such contention of the appellant. In the said book, the learned author referred to three main printing systems viz., (1) typographic method (ii) lithographic method and (iii) intaglio method at page 1 of the book. At page 2 while dealing with the lithographic method, the learned author specifically described the ink used in such lithographic method, as 'lithographic ink; and not as 'lithographic printing ink'. This observation in the said text book also goes against the contention of the appellant that the Legislature intended to refer to the ink used in lithographic method as 'lithographic printing ink' instead of as 'lithographic ink'. Therefore, the absence of comma, in between the two words 'lithographic and 'printing' does not make any difference, and the Legislature clearly intended to include not only 'lithographic ink', but also 'printing ink' in Entry 45 as was the case in Entry 44."
The Supreme Court in The Commissioner of Welath Tax, Bihar v. Kripashanker, , dealing with the construction of taxing statute was pleased to observe as under:
"It is true that a taxing provision must receive a strict construction at the hands of the Courts and if there is any ambiguity, the benefit of that ambiguity must go to the assessee. But that is not the same thing as saying that a taxing provision, should not receive a reasonable construction. If the intention of the Legislature is clear and beyond doubt then the fact that the provision could have been more artistically drafted cannot be a ground to treat any part of a provision at otiose. If the construction contended for on behalf of the respondent is accepted then a part of Section 2(1) would become otiose. So long as the intention of the Legislature is clear and beyond doubt, the Courts have to carry out that intention. In our opinion the High Court did not take a proper view of the decisions of this Court in Holds-wroth's case, ".
In this case also, if the argument of the learned Counsel for the petitioner is accepted, then the word 'printing' occurring immediately after the word 'lithographic' in Entry 45 would become unnecessary and otiose. Such an interpretation can never be placed in construing a statute. Be that as it may, it is relevant to notice that before new Entry 45 was inserted with effect from 1-3-1974 and subsequently substituted from 1-9-1976, the old Entry Item 44 of the First Schedule to the APGST Act included .................Paints, colours, varnishes, lithographic, printing and duplicating inks. In that view of the matter, it appears to our mind that the absence of comma after the word 'lithographic' in the new Entry 45 seems to be an accidental slip only as rightly opined by the learned Tribunal.
12. The judgments in Mohd. Shabir v. State of Maharashtra, , Collector of Customs and Central Excise and another v. Oriental Timber Industries, , Union of India v, Godfrey Phillips India Limited, India Tobacco Company Limited, Vazir Sultan Tobacco Company Limited and Ors. AIR 1986 806, Gursahai Saigal (supra) and State of Tamil Nadu v. Kodaikanal Motor Union Private Limited, 62 STC 272 (SC) cited by the learned Counsel for the petitioner in the course of argument, in our considered opinion do not advance the case the petitioner in any way. The judgments in Collector of Customs and Central Excise's case of (supra), Godfrey Phillips India Limited case (supra) have no bearing at all on the decision-making in these TRCs, whereas the judgments in Mohd. Shabir's case (supra) and Gursahai Saigal's case (supra) are distinguishable on facts. Therefore, we do not agree with the contention of the learned Counsel for the petitioner that the Legislature by removing punctuation 'comma' between the words 'lithographic' and 'printing' by Amendment Act 49/76 intended to exclude 'printing ink' from Entry 45 and the above judgments of the Supreme Court cited by the learned Counsel would not support that contention.
13. For the foregoing reasons, we hold that the absence of 'comma' in Entry 45 as amended by Amendment Act 49/76 between the words 'lithographic' and 'printing' does not exclude the 'newspaper printing' manufactured and sold by the petitioner -dealer from the purview of Entry 45 as amended by Amendment Act 49/76. In other words, the said goods manufactured and sold by the petitioner falls within Entry 45. We hold that the phrase 'lithographic printing' and 'duplicating inks' occurring in Entry 45 of First Schedule of APGST Act as amended by Amendment Act 49/76 includes three kinds of inks viz., (1) lithographic ink (2) printing ink and (3) duplicating ink.
14. In the result and for the foregoing reasons, we do not find any merit in the TRCs and accordingly they are dismissed, with no order as to costs.