Orissa High Court
Foremost Dairies Limited vs State Of Orissa on 3 August, 1992
Equivalent citations: [1993]88STC535(ORISSA)
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. On being moved by Foremost Dairies Limited (hereinafter described as "the dealer") under Section 24(2) of the Orissa Sales Tax Act, 1947 (in short, "the Act"), this Court directed the Orissa Sales Tax Tribunal (in short "the Tribunal") to state a case and refer the following question for opinion :
"Whether non-inclusion of Angel Baby Milk Food from the category of first point levy would attract liability of the petitioner for assessment at first point ?"
Pursuant to the direction, a case has been stated and the question has been referred to for opinion.
2. Background facts as described by the Tribunal in the statement of case are to the following effect :
For the periods relating to quarters ending June 30, 1979 and September 30, 1979, respectively, the dealer sold "Angel Baby Milk Food" to registered dealers in the State of Orissa and claimed deduction under Section 5(2)(A)(a)(ii) of the Act. Such claim was disallowed by the Sales Tax Officer 011 the ground that the article in question is subject to tax at the first point in a series of sale in terms of Rule 93-I of the Orissa Sales Tax Rules, 1947 (in short, "the Rules"). Accordingly assessment was made. The dealer's appeals before the Assistant Commissioner of Sales Tax, Cuttack Range, Cuttack (in short, "the ACST") and the Tribunal were dismissed. The primary stand of the dealer as taken before the authorities below was that item (11) of the aforesaid rule does not encompass "Angel Baby Milk Food". It was urged that "Vijay Spray" did not find place in the draft notification although it found place in the final Notification No. 15946/CTA-15/79/F dated March 31, 1979. "Angel Baby Milk Food" did not find place in either of the notifications. Therefore, the intention was not to include that produce in respect of item (11). Reference is made to item (7) of Rule 93-J, which relates to milk powder and item (4) of Rule 93-K which relates to certain illustrated items of food and beverages. It is urged that the expression "such as" appearing in item (11) of Rule 93-I is illustrative, and "Angel Baby Milk Food" is not related and akin to the illustrated articles. The stand which did not find acceptance by the authorities below was reiterated before us. The learned counsel for the department, however, submits that merely because the notifications did not indicate "Angel Baby Milk Food", yet in view of the use of the expression "such as", it is abundantly clear that the same was to be treated as subject to tax at the first point in a series of sale.
3. Rule 93-I so far as it is relevant for our purpose reads as follows :
"93-I. Taxing at the first point in a series of sales of--
............
(11) Baby foods, such as Amul, Amul Spray, Vijay Spray, Lever Spray, Bal Amul, Glaxo, Farex, Casilan, Lactodex, Lactogen, Nespray.
.........."
4. The expression "such as" indicates that the same was intended to be illustrative and not exhaustive. We shall now consider the significance of the word "such", and the expression "such as". According to the Webster's Universal Dictionary, "such" means of that or similar kind ; of the same nature, quality, degree ; of kind ; like that ; specified, or implied ; of that kind, of the kind just stated ; possessing a specified quality to so great a degree. According to the Oxford English Dictionary "such" is an illustration of forms ; it is a demonstrative word used to indicate the quality or quantity of a thing by reference to that of another or with respect to the effect that it produces or is capable of producing. Thus, syntactically "such" may have backward or forward reference. The use of "such" in the attributive position is illustrated in detail only in the sense of illustration of forms. It means the character, degree, or extent described, referred to, or implied in what has been said. It is used, in a particularized sense. Standing predicatively at the head of a sentence or clause it refers summarily to a statement or description just made. It signifies that the indicated words are of the same kind or class as something mentioned or referred to of that kind ; similar ; the like. It is equivalent to a descriptive adjective or adverb on which it follows closely and the repetition of which is thus avoided. "Such" has relevance where the meaning is determined by reference to a correlative or dependent clause. "Such as" means having the character that he (it) has, no more and no less. The expression is used to introduce examples of a class. It is equivalent to for example, e.g. The clause introduced by "as" may be reduced to the subject only.
5. The use of the expression "such as" has to be read in the context in which it is used. Where divergent articles are indicated, the situation may be different from one where only similar articles are indicated. To illustrate, the case of "food and beverages" may be taken. In Rule 93-K "food and beverages" in sealed containers such as Maltodex, Maltova, Horlicks, Viva, Complan, Bournvita, condensed milk have been indicated. They belong to a class. We have observed in the case of State of Orissa v. Jyoti Trading Company (S.J.C. No. 15 of 1987 decided on July 7, 1992) Reported in [1993] 88 STC 530 supra that jam, jelly, tomato sauce and squash are not covered by item 4 of Rule 93-K for levy of tax at the first point of sale as they do not belong to the indicated class. The context in which the expression "such as" is used is of vital importance. In the context of divergent articles being covered, serial 30-D of the list of goods exempted from sales tax in terms of Notification No. 20206-CTA-14/76 dated April 23, 1976 is relevant. The entry relates to sale of "feed and fodder" such as husk straw, hay, grass, oil-cake and manufactured mixed balanced feed for cattle, poultry and pig. The entry is very wide and in such a case the articles intended to be covered by the entry belong to a wide range, and can take within its sweep any article which is akin to any of the indicated articles.
6. It is clear that baby food of all categories and descriptions were not intended to be encompassed. Otherwise the expression "baby food" would have sufficed. It has to be seen whether the article in question is akin to the illustrated articles. Various trade names have been indicated to signify the intended inclusion. Since merely brand and trade names of products of different manufacturers have been indicated, baby foods of all varieties, trade names and brand names are encompassed. The view of the Tribunal that Angel Baby Milk Food is covered by item (11) of Rule 93-I is irreversible.
The reference is accordingly answered in the affirmative in favour of the Revenue and against the dealer.
7. Before we part with the case, a submission made on behalf of the dealer needs to be noticed. It was urged that under bona fide belief that the article in question can be sold to registered dealers against declaration forms, the dealer has effected such sales to registered dealers who have issued declaration forms and have paid tax on their sale turnover. It is urged that if the dealer is required to pay tax again, it would amount to double taxation in respect of the same article. Reliance is placed on a decision of this Court in the case of Rama Rao & Sons v. Slate of Orissa [1990] 77 STC 303. While exercising reference jurisdiction it is not open to us to delve into this question. It is open to the dealer to avail such remedy as is available to it in law.
D.M. Patnaik, J.
8. I agree.