DEPUTY CAIT AND SALES TAX Vs. MAMMOOTTY

JUDGEMENT

(1.) WHETHER pineapple is a vegetable, and consequently a green fruit, is the short question to be decided in this tax revision case. The assessee claimed exemption under S. 9 of the Kerala General sales Tax Act, 1963 on the ground that pineapple was a green fruit coming under item 10 of the third schedule to the Act. This claim was rejected by the Sales tax Officer and the Appellate Assistant Commissioner, but was accepted by the appellate Tribunal. The finding of the Tribunal that pineapple was a green fruit is challenged before us. The assessee did not appear, and therefore, we requested Mr. M. I. Joseph to appear amicus curiae and assist us. Mr. Joseph has placed a few decision and has also adduced some useful argument on the question before us. Two decisions of the Supreme Court are brought to our notice; and they are Ramayatar Budhaiprasad v. Asst. Sales Tax Officer, Akola (XII STC. 286) and Motipur Zamindary Co. (P) Ltd. v. State of Bihar (XIII STC. 1 ). In the second case, the Supreme Court followed its decision in the first case; and in the first case, the Supreme Court considered whether betel leaves were vegetables under the C. P. and Berar Sales Tax Act, 1947. In considering the meaning of the word 'vegetables' the Supreme Court approved the decision of the Madhya Pradesh High Court in Madhya Pradesh Pan Merchants' association, Santra Market, Nagpur v. The State of Madhya Pradesh (7 S. T. C. 99 ). The Madhya Pradesh High Court held in that decision that the word 'vegetables' could not be given the comprehensive meaning the term had in natural History and the term should be understood as commonly understood denoting "those classes of vegetable matter which are grown in kitchen gardens and are used for the table". Ultimately, the Supreme Court observed that the word 'vegetables' in taxing statutes should be understood "as it is understood in common parlance, i. e. , denoting the class of vegetables which are grown in a kitchen garden or in a farm and are used for the table". In discussing the question the Supreme Court referred to the canadian decision in Planters Nut and Chocolate Co. Ltd v. The King (19521 DLR. 385 ). The Supreme Court of Canada was considering in that case the meaning of the word 'vegetables', in particular, the question whether peanuts and cashew nuts were vegetables. The Court held that the words 'fruits' and 'vegetables' were to be construed as they were understood in the popular sense, i. e. , in the language of Lord Tenerden in Attorney General v. Winstanley (6 ER. 740), "as the words are understood in common language" and not as they are "applied to any particular science or art". In the course of the discussion, the Supreme Court referred to Webster's International Dictionary defining the word 'vegetable' and quoted the passage: 'a plant used or cultivated for food for man or domestic animals as the cabbage, turnip, potato, bean, dandelion, etc. also the edibls part of such a plant, as prepared for the market or the table. Vegetables and fruits are sometimes loosely distinguished by the usual need of cooking the former for the use of man, while the latter may be eaten raw; but the distinction often fails, as in the case of quinces, bearberries, and other fruits, and lettuce, celery and other vegetables. Tomatoes if cooked are vegetables, if eaten raw are fruit. " The Court also referred to the Encyclopaedia Britannica defining the word 'vegetables' and quoted the passage: "the edible portions of many plants considered as vegetables are. in a botanical sense fruits. The common distinction between fruits and vegetables is often indefinite and confusing, since it is based generally on how the plant or plant part is used rather than on what it is". "fruit", the Encyclopaedia Britannica says, is more often "employed to denote a group of edible parts, as of plants contrasted with another ground termed vegetable'. But the term is a loose one, including, e. g. , the stalks of the rhubarb. " Thus the usual distinction the common man's distinction between fruit and vegetable is that the former can be eaten raw while the latter has to be cooked before eaten. As already pointed out, this distinction fails in the case of quite a number of articles (edible parts of plants ). Still more, tomatoes, if eaten raw, are fruits, but, if eaten cooked, are vegetables. Such instances are available among other articles too. Cucumber Iicnim, shacnim cucumis sativus) is eaten raw in its unripe state and in its ripe state not eaten raw, but eaten only cooked. Can it be said that unripe cucumber is fruit while ripe cucumber is vegetable? in common parlance, cucumber is only vegetable whether ripe or unripe. Again, articles like mangoes, plantains, bananas, etc. are eaten raw when ripe but are usually cooked before eaten when unripe. In common parlance again, the unripe variety of such articles are vegetables while the ripe ones are fruits. As the supreme,court of Canada has pointed out in the decision cited, in such cases it is the meaning which people conversant with the subject-matter attribute to the term 'vegetable' or 'fruit' that has to be taken. To put it pithily in the language of the Canadian Supreme Court: "would a householder when asked to bring home fruits or vegetables for the evening meal bring home salted peanuts, cashewnuts, or nuts of any sort? The answer is obviously 'no'. The same test must be applied in the present case as well: will a householder or housewife bring pine-apple if he or she is asked to bring vegetables for preparing a meal? In our opinion, the answer to this question must also be in the negative Therefore, pine-apple is not a vegetable. To give full credit to Mr. Joseph we refer to the other decisions also cited by him: Wazi Ahmed v. State of West Bengal (XX S. T. C. 254),jagabandhu Sahu v. Stale of Orissa (XXIV S. T. C. 240) and Krishna Iyer v. State of Kerala (XIII STC. 838 ). In the first two decisions the decisions of the supreme Court mentioned above have been followed; and in the last decision, a full Bench of this Court has held that green ginger is vegetable. The relevant item in the third schedule under which exemption is claimed is item 10; and it reads: "vegetables (either than green ginger), whether roots, green fruit or leaves, used for human consumption including tapioca, yam, potatoes, lime, sabola and tomatoes, except their manufactured products. " What is exempted under this item is 'vegetables'; the vegetables thus exempted may be root vegetables, green fruit vegetables or leaf vegetables. Then about the inclusive portion to the item which says "including tapioca, yam, potatoes, lime, sabola and tomatoes. " This inclusive portion throws some light on the meaning of the expression 'green fruit' used in this item. Green fruit in the English language means unripe fruit (vide Webster's Complete English Dictionary at P. 588: "not ripe; immature, not fully grown or perfect; as green fruit corn, vegetables and the like".) The same is the position in the Shorter Oxford Dictionary (when applied to fruits or plants, often implying some additional sense: " (a)Unripe (b) young and tender)". This meaning can apply only if the word 'fruit' is taken to include the ripe and the unripe variety of an article (edible part of plant ). In such a case, if the unripe variety is understood in common parlance as vegetable, then, it will come within the expression 'green fruit' used in item 10. It is not uncommon, as already indicated, that 'fruit' is often used to denote the ripe variety of an article (edible part of plant)if it can be eaten raw, while the unripe variety of the article, if it is cooked and used as an article of food, is designated 'vegetable'. It is not also uncommon that the expression 'green vegetable' is sometimes used to denote leaf vegetable. In these circumstances, we venture to suggest that the expression 'green fruit' is used in item 10 to denote ripe fruit which in spite of its being fruit, is only vegetable in a sense different from the green of a fruit, unripe fruit. This suggestion gains support from the inclusive portion of item 10, wherein come, for instance, tomatoes and lime. Those two articles, though they are ripe and may be called fruits, are still vegetables, and such fruits, in spite of their being ripe fruits are vegetables: they are the 'green fruits' of this item. Considering the meanings of the expression 'vegetable' and 'green fruit' as they have emerged from the foregoing discussion, we do not think that pineapple is a vegetable, nor do we think that it is a green fruit. In common parlance, pineapple is not considered to be a vegetable whether in its ripe state or in its unripe state: it is considered only as a fruit when it is ripe. Therefore, the first condition for pineapple to come under item 10 of schedule III, namely, that it should be a vegetable, is not satisfied. If it is not a vegetable then, even in its ripe form, it cannot be 'green fruit' in the second meaning we have suggested for this expression. Thus pineapple is neither a vegetable nor a green fruit. For the reasons given above, we are of opinion that the appellate Tribunal was in error in holding that pineapple was a green fruit coming within item 10 of the third schedule. The said finding is consequently set aside and the conclusion of the Sales Tax Officer, as confirmed by the appellate Assistant Commissioner is restored. Since the assessee did not appear, we do not pass any order regarding costs. We thank Mr. M. I. Joseph who appeared amicus curiae and helped us. . .