Kerala High Court
Sunbay Food Corporation vs State Of Kerala on 2 May, 1986
Equivalent citations: [1986]63STC270(KER)
JUDGMENT K.T. Thomas, J.
1. The only question to be decided in this tax revision case is whether "cuttlefish" is a variety of fish. If the answer is in the affirmative, the petitioner's turnover to the tune of Rs. 16,75,814 will stand exempted from tax liability under the Kerala General Sales Tax Act, 1963 (for short "the Act"). Otherwise the petitioner is liable to pay sales tax on the said turnover. As per notification published by the Government of Kerala under Section 10 of the Act fresh fish" is exempted from tax liability (vide item No. 23 in Schedule I of Notification S.R.O. No. 342/63).
2. For the assessment year 1975-76 the Sales Tax Officer, III Circle, Quilon, upheld the petitioner's claim for exemption of turnover for the sale of cuttlefish. But subsequently the same officer initiated proceedings under Section 19 of the Act to redetermine the turnover of the petitioner, since he felt that the exemption was wrongly granted. As per his order dated 28th February, 1980, the Sales Tax Officer assessed the petitioner to sales tax for the turnover of the sale of cuttlefish, since the officer took the view that cuttlefish is not fish. The order was confirmed by the Appellate Assistant Commissioner of Agricultural Income-tax and Sales Tax, Quilon. The petitioner took up the matter before the Sales Tax Appellate Tribunal, but the Tribunal agreed with the aforesaid finding and dismissed the second appeal. Hence this revision by the petitioner.
3. The learned Counsel contended that fish includes all marine products and cuttlefish being undisputedly a marine product should have been exempted from tax as fresh fish". Marine products will include all kinds of species living in the sea. Hence it is too wide a range to determine the ambit of fish.
4. Another contention is that even the very word "cuttlefish" denotes that it is a variety of fish as its ending syllable is fish. The Appellate Tribunal has indicated the danger in accepting the aforesaid argument by pointing out that there are several varieties of marine creatures, like star fish, jelly fish, etc., where also the word 'fish' is used, but, admittedly, they do not come under what is popularly understood as fish". Merely because the ending syllable of the word "cuttlefish" is synonymous with the word "fish", a meaning that it is a variety of fish cannot be accepted. Examples are too many to be cited to indicate the perniciousness in assuming a meaning for a word merely on the strength of its synonymity with another word.
5. The learned Government Pleader sought to bolster up his argument, that cuttlefish is not fish, on lexicographical references. But the learned Counsel for the petitioner contended that dictionary meaning should not be resorted to for the purpose of ascertaining the true import of the items of articles catalogued in taxing statutes. Such items, according to the learned counsel, should be understood only by the popular connotation or in commercial sense. In support of the above contention the learned Counsel cited the Full Bench decision of the Kerala High Court in Krishna Iyer v. State of Kerala [1962] 13 STC 838. The word "vegetables" in item No. 27 of Schedule I to the General Sales Tax Act, 1125, was the subject-matter of discussion in the said decision. Their Lordships stated that:
It is not the dictionary meaning of a term that will invariably prevail in the construction of a statute. The rule of interpretation in such cases is that particular words used by the Legislature in the denomination of articles should be understood according to the common commercial understanding of the term used and not in their scientific or technical sense, for the Legislature does not suppose our merchants to be naturalists, or geologists or botanists.
In arriving at the said conclusion reliance was placed on the decision of the Supreme Court in Ramavatar Budhaiprasad v. Assistant Sales Tax Officer [1961] 12 STC 286 (SC) where also the endeavour was to find out the contours of the word "vegetables". The same principle had been reiterated in Commissioner of Sales Tax, Indore v. Jaswant Singh Charan Singh [1967] 19 STC 469 (SG); AIR 1967 SC 1454. Shelat, J., has observed that:
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.
6. The principles are now well nigh settled that statutes are presumed to use words in their popular sense, rather than their narrowly legal or technical sense. But the difficulty arises when the word to be construed has not acquired or attained a popular sense or a particular connotation in trade or commerce. That difficulty continues in a case where there is no evidence to show that the term concerned has a particular popular connotation. In such cases it is for the party, who seeks to attach a particular meaning to the term involved, to give evidence in support of it. In the absence of such evidence, the course open to the court is to resort to dictionaries and lexicons. We are fortified in this by the observation of a Division Bench of the Bombay High Court in Commissioner of Sales Tax v. Tejco Industries [1976] 38 STC 93. "The meaning of the terms describing goods in the entries in the Schedules to the Bombay Sales Tax Act, 1959, prescribing rates at which commercial articles have to be taxed has to be gathered from the trade parlance or the common parlance in trade. The question as to what is the meaning given to a term used in an entry in common parlance is a question of fact to be determined on evidence and in the absence of such evidence, the entries could be construed according to their dictionary meaning." (emphasis* supplied)
7. "Cuttlefish" is not an item which has attained a particular meaning in popular parlance. It is not a delicacy in Kerala. It is doubtful whether it is commonly consumed in any other part of India. Even according to the learned Counsel for the petitioner, the commodity is mainly an exportable item as it is a delicacy in some foreign countries including Japan. No material is placed before us to show that "cuttlefish" has a commercial, much less popular, connotation. There is no case that it is a commodity for internal marketing. In these circumstances, recourse to dictionaries or lexicons will be of advantage to find out the true meaning of that term.
8. All aquatic creatures cannot be grouped into the category of "fish" for, there are several kinds of such creatures. In "Encyclopaedia Britannica" (Vol. 7--15th Edition, page 330) "fish" is described as "a variety of cold-blooded aquatic vertebrates of several evolutionary lines". In "World Book Encyclopaedia" (Vol. 7--1977 Edition at page 138) "fish" is described as "vertebrates that live in water". In Concise Oxford Dictionary "fish" is described as "vertebrates coldblooded animal, living in water having gills throughout life". From the above quotations it can be seen that there are two common distinctive features for fish of all varieties, that they are vertebrates and that they must be living in water.
9. While dealing with cuttlefish the "World Book Encyclopaedia" (same edition Vol. IV at page 959) describes it as "a mollusk (soft boneless animal) in the same class as the squid". In "Encyclopaedia Britannica" (Vol. 6--page 928) "cuttlefish" is described as "a name given to a large group of marine cephalopod mollusks related to the octopuses and squids". (Mollusk is a soft bodied animal, without bones. Oysters, slugs and snails are some of the varieties of mollusks.)
10. Thus the poignant feature of "cuttlefish" is that it is a non-vertebrate. Prawns and lobsters are also non-vertebrates. Even the Act does not include prawns and lobsters in the category of fish, as they have been made taxable items. There is no dispute about it.
11. The conclusion to be drawn from the above discussion is that "cuttlefish" cannot be treated as a fish variety. It is hence not an exempted item. The order assessing the turnover of the sale of "cuttlefish" to sales tax, therefore, does not warrant interference. We, therefore, dismiss this revision. No costs.