Chattisgarh High Court
Ms Kamesh Traders vs State Of Chhattisgarh & Another on 2 December, 2010
HIGH COURT OF CHATTISGARH BILASPUR
WRIT PETITION T NO6975 OF 2008 & WRIT PETITION T NO6976 OF 2008 & WRIT PETITION T NO6977 OF 2008 & WRIT PETITION T NO6978
Ms Kamesh Traders
...Petitioners
Versus
State of Chhattisgarh & Another
...Respondents
! Shri Sunil Otwani Advocate for the petitioner ^ Shri AS Kachhawaha Dy Adv General for the State CORAM : Honble Shri Satish K Agnihotri J Dated : 02/12/2010 : Judgement (Delivered on this 02nd day of December, 2010) Writ petitions under Article 226 of the Constitution of India
1. W.P.(T) Nos.6975, 6976, 6977, 6978 and 6979 of 2008, involve the same question of law asto whether or not the products of cello company i.e. serving tray, flask, stainless steel Tiffin with plastic body, water jug and hotpot (casserole) would fall within the meaning of `utensils' under Entry No.13 of Part II of Schedule II of the Chhattisgarh Value Added Sales Tax (Amendment) Act, 2005 (for short "the Act, 2005"). The facts of all the writ petitions are common and, as such, they are being disposed of by this common order. However, for the purpose of this order the facts, as mentioned in W.P. (T) No. 6975 of 2008 are being referred.
2. By these writ petitions, M/s Kamesh Traders (petitioner in all the writ petitions) seek quashing of the order dated 31-1-2007 passed by the respondent No.2 Commissioner, Commercial Tax, whereby and whereunder the petitioner was directed to pay the Value Added Tax (for short "the VAT") at the rate of 12.5% as per the Entry No.1 of Part IV of Schedule II of the Act, 2005.
3. The facts, in nutshell, as projected by the petitioner, for proper adjudication of the cases, are that the petitioner is the distributor of Cello Products. The petitioner is registered under the provisions of Act, 2005. The State Government imposed the VAT at the rate of 12.5% on the serving tray, flask, stainless steel Tiffin with plastic body, water jug and hotpot (casserole). According to the petitioner, the aforesaid products will fall under the Entry No.13 of Part II of Schedule II of the Act, 2005, therefore, the petitioner is required to pay the VAT at the rate of 4% only.
4. Against the aforesaid action of the respondent authorities, the petitioner moved an application under Section 70 of the Act, 2005 before the Commissioner, Commercial Taxes. In the said appeal, the Commissioner by order dated 31-1-2007 directed the petitioner to pay the VAT at the rate of 12.5% as per the Entry No.1 of Part IV of Schedule II of the Act, 2005. Thus, these petitions.
5. Shri Otwani, learned counsel appearing for the petitioner, would submit that the respondent No.2 failed to appreciate the fact that the reason given by the respondent No.2 in the order dated 31-1-2007 is not just and proper. The respondent No.2 failed to appreciate that it is not necessary that the term utensils has to be limited to cover only those utensils, which are generally used in kitchen. Shri Otwani would further submit that serving tray, flask, stainless steel Tiffin with plastic body, water jug and hotpot (casserole) come within the definition of `utensils'. Thus, the petitioner is not liable to pay the VAT at the rate of 12.5%. The petitioner is liable to pay the VAT only at the rate of 4%. Even the State of Madhya Pradesh is imposing the VAT at the rate of 4% on the aforesaid articles. Thus, the impugned order dated 31-1-2007 may be quashed and the respondent authorities may be directed to impose the VAT at the rate of 4% only.
6. Shri Kachhwaha, learned Dy. Advocate General appearing for the State, would submit that though the hot pot (casserole) is used for keeping the food, it is not made of metals only, therefore, it does not come within the category of kitchen utensil and there is no such commodity named as hot pot in the schedule. The Commissioner after appreciating the facts and circumstances of the in its letter and spirit rightly passed the impugned order and the same does not warrant any interference of this Court. Shri Kachhawaha, would further submit that the impugned order was passed by the Commissioner on 31-1-2007 whereas the petitioner preferred the instant petitions on 11-12-2008 i.e. after lapse of more than 22 months without assigning sufficient and cogent reasons for causing delay in filing the present petitions. Thus, the petitioner is not entitled to any relief and the present petitions may be dismissed.
7. It is useful to refer the relevant entries of Schedule II part II and Part IV to Section 8 of the Act, 2005, which reads as under:
PART II Sl.N Description Rate of Rate of o. Tax u/s Tax u/s 8(i) 8(ii) (percent (percent ) ) (1) (2) (3) (4) x xxx xxx xxx x xx xxx xxx
13. All utensils 4 -
including pressure cookers/pans except utesils made of precious metals.
x xxx xxx xxx
PART IV
Sl.N Description Rate of Rate of
o. Tax u/s Tax u/s
8(i) 8(ii)
(percent) (percent)
(1) (2) (3) (4)
1. All other goods 12.5 -
not covered by
Schedule I and
Schedule II
8. The question for consideration before this Court is that whether the above stated articles, i.e. serving tray, flask, stainless steel Tiffin with plastic body, water jug and hotpot (casserole) come within the definition of `utensils' and fall within entry 13 of part II of the second schedule of the Act, 2005. The entry 13 starts with the word "all utensils". Utensils have a very wide connotation. It further states that all the utensils except utensils made of precious metals. There is no dispute that the above stated articles are not made of precious metals and there is no distinction whether it is made of stainless steel, plastic or any other metal and as such all utensils come within entry 13 of second schedule wherein VAT payable at the rate of 4%. The contention of the learned counsel for the Revenue that since some of the articles are not made of metals only, therefore they would not come within the category of Kitchen utensils, deserves to be rejected on a simple ground that entry does not distinguish utensils on the basis of materials for making of utensils, except precious metals.
9. Stroud's Judicial Dictionary of Words & Phrases, Volume 3, Sixth Edition, defines the word `utensils' as under:
"UTENSIL. "Utensil, anything necessary for our use and occupation; household stuffe"
(Cowel).
10. Chambers 21st Century Dictionary, Revised Edition, defines the word `utensil' as under:
"utensil `ju'tensil' - noun an implement or tool, especially one for everyday or domestic use. Cooking utensils. 14c: from French utensile, from Latin utensilis `fit for use' or `useful', from uti to use."
11. The New International Webster's Comprehensive Dictionary of English Language, Encyclopedic Edition, defines the word `utensil' as under:
"u-ten-sil (yoo-ten's?l) n. A vessel, tool, implement, etc., serving a useful purpose, especially for domestic or farming use. See synonyms under TOOL. [<OF utensile <L utensilis fit for use < utens, ppr. of uti use]"
12. The Oxford English Dictionary, Second Edition, Volume XIX, defines the word `utensil' as under:
"2. Any article useful or necessary in a household; a domestic implement, vessel or article of furniture, now esp., an instrument or vessel in common use in a kitchen, dairy, etc.:
+freq. pl., = household goods."
13. On reading of the definitions given by the various dictionaries, it is clear that all the articles which are useful for kitchen and domestic purposes, come within the definition of `utensils'. The distinction has already been made in the entry itself that the articles aforestated, made of precious metals would not fall within the entry 13 and would fall under other entry.
14. It is trite law that in case of imposition of taxes, the word should be construed in the same way in which it is understood in ordinary parlance in the area in which the law is in force. The above sated articles may not be used on day to day basis but understood as utensils and used as articles of kitchen and for domestic purposes.
15. The Supreme Court, in M/s. Annapurna Biscuit Manufacturing Co. Kanpur v. Commissioner of Sales Tax, U.P. Lucknow1, observed as under:
"4. It is well settled rule of construction that the words used in a law imposing a tax should be construed in the same way in which they are understood in ordinary parlance in the area in which the law is in force. If an expression is capable of a wider meaning as well as narrower meaning the question whether the wider or the narrower meaning should be given depends on the context and the background of the case."
16. Thermal flask/vacuum flask is known in common parlance as article used for storing beverages like coffee, tea, milk etc. at a particular temperature which is frequently and commonly used in the household. The Hot- Pot (casserole) is also used for keeping the vegetables, chapatis, rice and other food stuff hot to be delectable. Serving Tray is used regularly for serving dishes and other food stuff. Water jug and stainless steel Tiffin with plastic body, are also frequently used in kitchen and for domestic purposes.
17. For the reasons mentioned hereinabove, there is no dispute that the above stated articles are utensils and are used regularly for domestic purposes.
18. A Division Bench of the High Court of Karnataka, in Stovekraft Pvt. Ltd. v. State of Karnataka2, observed as under:
"20.In view of the aforesaid discussion we are of the view that the phrase `utensils' used in entry No. 5 includes the stainless steel LPG stove, kerosene stove and vacuum flask which are of common utility in a household and the same fall within entry No. 5 and liable to be taxable only at four per cent."
19. In view of the foregoing, the articles in question are taxable only at the rate of 4%. Accordingly, the authorities are directed to re-assess and pass appropriate order in accordance with law.
20. All the petitions are allowed to the above extent. No order asto costs.
JUDGE