COMMISSIONER OF SALES TAX Vs. ZEAL AND COMPANY

JUDGEMENT

(1.) In this reference under section 61(1) of the Bombay Sales Tax Act, 1959, the following question has been submitted to us for our determination :

(2.) This question arose out of an application made by the respondents to the Commissioner of Sales Tax under section 52(1) of the said Act requesting the Commissioner of Sales Tax to determine whether tamarind seed powder feel under the said entry. Along with the said application the respondents enclosed their Bill No. 1972 dated 17th November, 1964, for the sale of a certain quantity of tamarind seed powder by them to their customer. The Commissioner of Sales Tax held that it fell under the residuary entry No. 22 in Schedule E to the said Act. In appeal the Tribunal allowed the appeal and held that tamarind seed powder fell under entry No. 12 of the said Schedule A. The said entry No. 12 provides as follows :

(3.) Before the Tribunal it was contended that the words "whole or powdered" went with turmeric and not with tamarind. This contention was rejected by the Tribunal in view of the fact that the punctuation mark, comma, occurred after "turmeric" and not "tamarind". Before us, however, Mr. Shah, the learned counsel for the applicant, has not sought to raise this contention. What Mr. Shah has, however, contended is that tamarind means the pulp, the seeds and the skin of the tamarind and, therefore, powdered tamarind, in order to qualify for exemption, should be the entire fruit, including its skin and seeds powdered and sold. At the same time Mr. Shah conceded that the pulp of the tamarind fruit by itself cannot be powdered. This was also the position taken up by the department before the Tribunal. The Tribunal, however, came to the conclusion that the possibility of even the pulp being powdered cannot be ruled out and stated that there were instances of commodities of the type of tamarind pulp, which were dehydrated and powdered. Mr. Shah submitted that the Tribunal was not justified in coming to the conclusion that there were possibilites of even the pulp being powdered without there being any evidence in respect thereof before the Tribunal. It is unnecessary to consider the correctness of what the Tribunal has opined, because accepting Mr. Shah's case that the pulp of the tamarind fruit cannot be powdered, we fail to see how it helps Mr. Shah. According to Mr. Shah, what can be powdered is only the skin and the seeds of the tamarind fruit. If, therefore, when the entry uses the words "tamarind" "whole or powdered", tamarind can only refer to those parts of the tamarind fruit, which can be powdered, namely, either the skin or seeds or both, and this would militate against Mr. Shah's argument that in order to qualify for exemption, it must be the entire tamarind, including the pulp, which must be powdered. In support of his submission that tamarind cannot include tamarind seeds, Mr. Shah relied upon a decision of the Madras High Court in Indian Leaf Tobacco Development Co. Ltd. v. State of Madras (now Andhra) ([1954] 5 S.T.C. 354). Section 4 of the Madras General Sales Tax Act, 1939, exempted from the operation of the Act sale of tobacco in any form, whether manufactured or not. In that case a question arose whether tobacco seed was included in the exemption granted by the said section 4. The Tribunal held that tobacco seed was a commodity distinct from tobacco and did not come within the scope of the said section 4. The Madras High Court agreed with the view taken by the Tribunal. No reasons for arriving at this decision are mentioned in the said judgment. It, however, appears to us that tobacco is something very different from tobacco seed. In commercial parlance tobacco would mean tobacco leaves or powdered tobacco leaves and will not include tobacco seeds. A man who wants to purchase tobacco for filling his pipe in order to smoke his pipe or to roll a cigarette, when he goes to a tobacconist and asks for tobacco, is not asking for tobacco seeds or a tobacco plant but either for tobacco leaves or for powdered tobacco leaves. In our opinion, this judgment, therefore, does not in any way help the applicant's case.