COMMISSIONER OF SALES TAX Vs. COLOUR CHEM LIMITED

JUDGEMENT

(1.) These are two references under section 61 of the Bombay Sales Tax Act, 1959, made at the instance of the Commissioner of Sales Tax, in the first of which, viz., Sales Tax Reference No. 31, the two questions which have been referred are as follows :

(2.) The questions referred to us in Sales Tax Reference No. 32 of 1965 are identical in terms, except that they refer, not to pigment powders, but to pigment emulsions. The question that we have to determine, therefore, is under which entry are pigment powders and pigment emulsions taxable under the Bombay Sales Tax Act, 1959, after the amendment of the relevant entry on the 1st of April, 1961. Till that amendment was effected, i.e., up to 31st March, 1961, there existed an entry, being entry No. 4 in Schedule C to the said Act, which provided for a certain rate of tax in respect of "dyes and chemicals other than those specified in any other entry in this or any other Schedule". There is also to be found as entry No. 39 in the same Schedule an entry which provides for a higher rate of tax in respect of "paints, lacquers and varnishes". That entry has subsisted both before and after 1st April, 1961, on which date entry No. 4, to which we have referred above, was deleted from the said Schedule C. In Schedule E to the said Act is to be found entry No. 22 which provides for a certain rate of tax, which is lower than that provided in entry No. 39 referred to above, in respect of "all goods other than those specified from time to time in Schedules A, B, C and D and in the preceding entries." It may be mentioned that the said entry No. 22 has also subsisted both before and after the deletion of entry No. 4 which was effected by the amendment made on and from 1st April, 1961. It is the contention of the respondent-assessee that after entry No. 4 was deleted on the said date, pigment powders and pigment emulsions, which are manufactured by them, are not covered by any other entry in any of the Schedules to the Bombay Sales Tax Act, 1959, and therefore, fall within the general residuary entry which is entry No. 22 in Schedule E of the said Act and which has been set out above. The taxing authorities, on the other hand, contend that after entry No. 4 was deleted as from 1st April, 1961, "pigment powders" and "pigment emulsions" fall within entry No. 39 as being "paints" within the terms of that entry, and are, therefore, liable to a higher rate of tax than they would be liable if they fall within the residuary entry No. 22.

(3.) It may be mentioned that the present references have arisen out of an application made by the respondents under section 52 of the Bombay Sales Tax Act, 1959. Mr. Banaji for the department has contended that the terms "pigment powders" and "pigment emulsions" should not be given a technical meaning, but should be given the meaning that is attributed to them in common parlance as has been laid down by the Supreme Court in the case of Ramavatar Budhaiprasad v. The Assistant Sales Tax Officer, Akola, and Another ([1961] 12 S.T.C. 286 at p. 288). In laying down the same rule of construction, the Supreme Court has, however, in the later case of Commissioner of Sales Tax, M.P. v. Jaswant Singh ([1967] 19 S.T.C. 469 at pp. 473-474) indicated that that rule may not apply to a technical term, or to a term of science or art. "Pigment powders" as well as "pigment emulsions" are certainly technical terms. In our opinion, however, whether the matter is looked at from the point of view of common parlance or of technical terminology, there is no escape from the conclusion that neither "pigment powders" nor "pigment emulsions" fall within the term "paints".