THIMMAPPA Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner in the revision is an assessee under the kerala General Sales Tax Act, 1963. THE respondent is the Revenue. THE petitioner is a dealer in paper. We are concerned with the assessment year 1987-88. One of the questions raised before the Sales Tax Appellate Tribunal was whether "ammonia paper" will come within entry 97 of the First schedule to the Kerala General Sales Tax Act or will fall within the general charging section assessable at multi-point. THE assessing authority, the firs! appellate authority and the Appellate Tribunal held that "ammonia paper" will (not?) come within the ambit of entry 97 of the First Schedule to the Act as it stood at the relevant time and the turnover of the same is assessable at multipoint and so, exigible to tax at the hands of the revision petitioner. THE short question is whether the above conclusion is justified in law or not.

(2.) ENTRY 97 of the First Schedule to the Act is to the following effect: In Commissioner of Sales Tax v. Macneill & Barry Ltd. (1986) 61 STC 76. the Supreme Court had to consider whether "ammonia paper or fcrro paper" is paper in the popular sense of the term. Path a k, J. ,as. he then was, delivering the judgment of the Bench stated the legal position thus: "the paper is used for preparing prints and sketches of site plans. An impression of the print or sketch is made on the paper, and it is then exposed to light for a period of lime during which the chemical evaporates resulting in the emergence of the print or sketch of the site plan. Plainly, ammonia paper and fcrro paper cannot be regarded as paper in the popular sense of that term. Paper is used for printing or writing or for packing. Ammonia paper and ferro paper arc not employed for any of the purposes and subjected to any of the processes for which a paper, as commonly understood, is generally used. . . " As stated in Sree Rama Trading Company v. Suite of Kerala (1971) 28 STC 469 (Ker.);1971 KLT 609, a word which is not defined in the Act has to be understood according 10 its popular and commercial sense with reference to the context in. which it occurs. They should be understood in common language. In the said case, the question was whether "cellophane" can be considered as "paper". After referring 10 the decisions on the subject, a Division Bench of our Court held thus: "when a person goes to a trader and asks for "paper" we do not think that the customer will be given a cellophane sheet. We cannot assume that our Legislature supposed that our traders have got expert knowledge in the chemical composition of paper as well as cellophane. We have therefore no doubt to hold that cellophane is not paper coming within entry 42 in the First Schedule as it stood then. The turnover resulting therefrom cannot therefore be assessed at 5 per cent. "