Bombay High Court
The Commissioner Of Sales Tax, ... vs M/S. S.H. Kelkar And Co. Ltd on 27 November, 2014
Bench: S.C. Dharmadhikari
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sas
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SALES TAX REFERENCE NO.47 OF 2009
WITH
SALES TAX REFERENCE NO.48 OF 2009
WITH
SALES TAX REFERENCE NO.49 OF 2009
WITH
SALES TAX REFERENCE NO.34 OF 2009
WITH
SALES TAX REFERENCE NO.1 OF 2012
WITH
SALES TAX REFERENCE NO.7 OF 2012
ig WITH
SALES TAX REFERENCE NO.10 OF 2012
WITH
SALES TAX REFERENCE NO.11 OF 2012
WITH
SALES TAX REFERENCE NO.12 OF 2012
WITH
SALES TAX REFERENCE NO.14 OF 2012
WITH
SALES TAX REFERENCE NO.23 OF 2012
The Commissioner of Sales Tax, ]
Maharashtra State, Mumbai. ]..Applicant.
V/s.
M/s. S.H.Kelkar & Company Ltd. ]
Lal Bahadur Shastri Marg, Mulund (West) ]
Mumbai - 400 080. ]..Respondent.
WITH
SALES TAX REFERENCE NO.11 OF 2006
International Flavours & Fragrances India ]
Ltd., formerly known as M/s. Bush Boake ]
Allen (I) Ltd. a company incorporated under ]
the provisions of the Companies Act, 1956, ]
having its registered office at 1-5 Seven ]
Wells Street, St. Thomas Mount, Chennai ]
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600 016 and Regional Sales Office at Floral ]
Deck Plaza, 3rd Floor, 'B' Wing, M.I.D.C., ]
Central Road, Andheri East, Mumbai-400063. ] ..Applicant.
V/s.
State of Maharashtra through its Secretary ]
of Ministry of Finance (Sales Tax Department) ]
Mantralaya, Mumbai. ] ..Respondent.
WITH
SALES TAX REFERENCE NO.15 OF 2006
Saibaba Industries Ltd., a company ]
incorporated under the provisions of the ]
Companies Act, 1956, having its registered ]
office at 129/131, Kazi Sayed Street Masjid, ] ..Applicant.
Mumbai - 400 003.
V/s.
State of Maharashtra through its Secretary ]
of Ministry of Finance (Sales Tax Department) ]
Mantralaya, Mumbai. ] ..Respondent.
WITH
SALES TAX REFERENCE NO.5 OF 2012
WITH
SALES TAX REFERENCE NO.11 OF 2011
WITH
SALES TAX REFERENCE NO.13 OF 2012
WITH
SALES TAX REFERENCE NO.15 OF 2012
WITH
SALES TAX REFERENCE NO.22 OF 2012
The Commissioner of Sales Tax, ]
Maharashtra State, 8th floor, Vikrikar ]
Bhavan, Mazgaon, Mumbai-400 010. ] ..Applicant.
V/s.
M/s. Spac Aromas, ]
29/38, Mangaldas Road, Mumbai-400 002. ] ..Respondent.
WITH
WRIT PETITION NO.2055 OF 2003
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International Flavours & Fragrances India ]
Ltd., formerly known as M/s. Bush Boake ]
Allen (I) Ltd. a company incorporated under ]
the provisions of the Companies Act, 1956, ]
having its registered office at 1-5 Seven ]
Wells Street, St. Thomas Mount, Chennai ]
600 016 and Regional Sales Office at Floral ]
Deck Plaza, 3rd Floor, 'B' Wing, M.I.D.C., ]
Central Road, Andheri East, Mumbai-400063. ] ..Petitioner.
V/s.
1. State of Maharashtra through its ]
Secretary of Ministry of Finance (Sales) ]
Tax Department) Mantralaya, Mumbai. ]
ig ]
2. Maharashtra Sales Tax Tribunal, ]
Vikrikar Bhavan, Mazgaon, ]
Mumbai - 400 010. ]
]
3. The Commissioner of Sales Tax, ]
Maharashtra State, Vikrikar Bhavan, ]
Mazgaon, Mumbai - 400 010. ] ..Respondents.
WITH
WRIT PETITION NO.2056 OF 2003
Saibaba Industries Ltd., a company ]
incorporated under the provisions of the ]
Companies Act, 1956, having its registered ]
office at 129/131, Kazi Sayed Street Masjid, ] ..Petitioner.
Mumbai - 400 003.
V/s.
1. State of Maharashtra through its ]
Secretary of Ministry of Finance (Sales) ]
Tax Department) Mantralaya, Mumbai. ]
]
2. Maharashtra Sales Tax Tribunal, ]
Vikrikar Bhavan, Mazgaon, ]
Mumbai - 400 010. ]
]
3. The Commissioner of Sales Tax, ]
Maharashtra State, Vikrikar Bhavan, ]
Mazgaon, Mumbai - 400 010. ] ..Respondents.
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Mr.V.A.Sonpal, Special Counsel for the revenue in all matters.
Mr.S.K.Nair, A.G.P. for for revenue in Writ Petition No.2055/013 &
2056/03.
Mr.V.Sridharan, Senior Advocate with Mr.V.P.Patkar, Mr.Rahul Thakar
i/b. Khaitan & Jaykar for the Applicant in S.T.R. Nos.11/06 and for
the Respondent in S.T.R Nos.47/09 and for the Petitioners in W.P.
Nos.2055/03 & 2056/03.
Mr.V.P. Patkar i/b. Khaitan & Jaykar for Applicant in S.T.R No.15/06.
Mr.V.P.Patkar with Mr.Dinesh Patkar and Mr.Dinesh Tambde &
Mr.M.M.Vadiya for the assessee in S.T.R. Nos.48/09, 49/09, 1/12,
5/12, 7,12, 10/12, 11/12, 12/12, 13/12, 14/12, 15/12, 22/12, 23/12
& 11/11.
CORAM : S.C.DHARMADHIKARI AND A.K.MENON, JJ.
RESERVED ON : 7TH OCTOBER, 2014
PRONOUNCED ON : 27TH NOVEMBER, 2014
JUDGMENT (PER A.K.MENON, J.)
1. This order disposes of all the above seventeen
Sales Tax References and two Writ Petitions. For the purpose
of the present judgment, we refer to the facts and issues
raised in Sales Tax Reference No.11 of 2006, Writ Petition
No.2055 of 2003 and Sales Tax Reference No.49 of 2006. The
issues that arise for consideration pertains to additive flavour
compounds only and synthetic essential oils, fragrances, etc.
Vide order 31st March, 2006, the following questions were
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referred to this Court:-
(i) Whether on the facts and circumstances of the case, was
the Tribunal justified in negating the revenue's
interpretation of the words "and their compounds" in
schedule entry C-I-19 as covering only the compounds
of natural and synthetic essential oils as not quite proper
and interpreting the words "and their compounds",
therein to mean the compounds of the aromatic
chemicals as well.
(ii)
Whether on the facts an circumstances of the case, was
the Tribunal justified in holding that the impugned
product i.e. flavouring compound is compound covered
by Schedule Entry C-I-19 and liable to tax @ 4 per cent
from 1-1-1988 to 10-8-1988 and 1994-95 ?
(iii) Whether on the facts and circumstances of the case, was
the Tribunal justified in concluding that the impugned
product i.e. perfumery compound are compounds or
aromatic chemicals within the meaning of Schedule
Entry C-I-19 and hence liable to tax @ 4% for the period
1-1-1998 to 31-3-1995 ?
2. For the purpose of this judgment, we refer to
the facts in the case of Sales Tax Reference No.47 of
2009. The Respondent- assessee is a manufacturer of
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Aromatic Chemicals, Flavouring Compounds, Natural
and Synthetic Essential Oil and Fragrances, etc. The
assessing authority levied a tax at 15% on the sales of
flavouring compounds and perfumery compounds
treating them as covered under entry C-II-78, with
effect from 11th August,1988. Perfumery compounds
were also taxed under C-II-86 as fragrances and
penalties were also levied.
3.
According to the Respondent-assessee, sales
of flavouring compounds and perfumery compounds
were covered under entry C-I-19. The assessee filed a
first appeal before the Deputy Commissioner of Sales
Tax, who considered the above submissions but
rejected them, holding that the assessing officer had
not erred in treating the impugned sale as covered in
schedule entry C-I-19. The first Appellate Authority
thus confirmed the order of the assessing authority with
regard to levy of taxes.
4. Being aggrieved by the order of the first
appellate authority, the appellant filed a second appeal
before the Tribunal. The Appellate Tribunal, after
hearing both sides, partly allowed the second appeal
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vide order dated 31st March, 2003 and held that during
the period 11th August, 1988 to 31st March, 1994, the
sale of flavouring compound was liable to be taxed at
the rate of 15% being covered under schedule entry C-
II-78. After the period 1st January, 1988 to 11th August,
1988 and during 1994-95 flavouring compounds were
liable to be taxed at 4% being covered under entry C-I-
19. It was further held that perfumery compounds were
liable to sales tax at 4% during the period 1 st January,
1988 to 31st March, 1995. The claims pertaining to
goods returned, set off, sale of REP licence, etc. were
remanded to the Deputy Commissioner.
5. Mr. Sridharan, learned Senior Counsel appearing on
behalf of the assessee in all these matters submitted that the
arguments raised by the revenue before the Maharashtra
Sales Tax Tribunal were as follows:-
(a) Entry C-I-19 does not cover compounds of aromatic
chemicals but the entry covers only the compounds of
natural / synthetic essential oils and no other compounds.
(b) Entry C-I-19 covers only the compounds which are
sold as single entity in form which is almost pure.
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(c) Entry C-I-19 relates only to compounds treated
individually i.e. without requirement of specific formulation. In
other words, it does not cover any prepared mixture. On the
three questions framed, he submitted that as far as the first
question reproduced above, the Tribunal had answered this
question in its judgment dated 31st March, 2003 as follows:-
" The reading of the entry C-I-19 done by the revenue is
not quite proper. The words 'their compounds' therein
would obviously mean the compounds of the Aromatic
Chemicals and Synthetic and Natural Essential Oils. They
would certainly not mean compounds merely of
synthetic and natural essential oils, as sought to be
interpreted by the revenue. When the synthetic and
natural oils themselves were covered by C-I-19 there
was obviously no need to specify that even the
compounds of such oils would also be covered by the
same entry. As compounds of various chemicals are
covered by the term chemicals, the compounds of the
aforesaid oils are also covered by the term 'synthetic
and natural essential oils'. In that view of the matter, it is
absolutely clear that the words 'their compounds' in C-I-
19 means not the compounds of oils but the compounds
of aromatic and oils....Therefore, C-I-19 does include
mixtures except culinary and flavour essences. "
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6. Mr.Sridharan submitted that ordinarily the use of
semicolon in a classification creates a distinction between the
terms of inputs before and after the semicolon. He relies upon
the decision of the Supreme Court in Falcon Tyres V/s. State
of Karnataka reported in (2006) 6 SCC 530 in support of
his submission that in the impugned entry C-I-19, no such
semicolon is used in the entry and there was no distinction
between 'aromatic chemicals' on the one other and 'natural
and synthetic essential oils' on the hand. Consequently, it is
submitted that the words 'and their compounds' will refer to
both, compounds of aromatic chemicals as well as compounds
of natural and synthetic essential oils. Mr.Sridharan further
submits that in Union of India V/s. Pesticides Mfg &
Formulators Assn. Of India reported in (2002) 7 SCC 410,
the Apex Court has held that a compound is mixture of
components and therefore, entry at C-I-19 includes mixtures
of aromatic chemicals and 'natural and synthetic essential
oils. The impugned products will not fall outside the entry
merely on account of being a mixture.
7. As far as the second question is concerned,
Mr.Sridharan has submitted that the second question was
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relevant only for matters pertaining to M/s. International
Flavours and Fragrances. He submitted that the terms in a
classification entry must be interpreted using the principle of
noscitur a socis. Mr.Sridharan relied on the Apex Court in
Gordhandas Tokersey, Pardeep Agarbatti and G.Radhakrishna
Murti (supra). He submitted that the principle must be applied
even when interpreting an entry containing two or more
terms. In this behalf, he relied upon Bennion on Statutory
interpretation, 5th Edition at page 1197. Mr.Sridharan further
submitted that the terms 'culinary and flavouring' is used only
as a composite expression i.e. two words wherein one gives
meaning to the other and there is no specific reason as to why
the terms are used separately. Mr.Sridharan submitted that
this Court in the case of Commissioner of Sales Tax V/s.
Khosla Kesharwala reported in (2006) 145 STC 57
(Bom.) also indicates that a classification under entry C-II-78
requires the impugned product to predominantly relate to
cooking as a colouring and flavouring agent.
8. In effect, Mr.Sridharan submitted that only those
products which are in relation to culinary i.e. used in a kitchen
which are covered under C-II-78. The impugned product i.e.
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flavouring essence is not used directly in a kitchen or in
cooking or any other similar manner, but used as raw
materials in industries such as pharmaceuticals, confectionery
products. He submitted that this aspect has been considered
by the Tribunal in its judgment on 31st March, 2006 in
paragraphs 7 to 9. For all these reasons, it is submitted that
the impugned product does not fall within entry C-II-78 but
falls under C-I-19.
9.
With reference to the third question, Mr.Sridharan
submitted that it is relevant only in the matter of S.H. Kelkar,
Respondent in Sales Tax Reference No.47 of 2006 and others.
In that case, he submitted that the limited question is whether
the impugned product determined as perfumery compound is
found to be falling within entry C-I-19 and hence not under
entry C-II-86 dealing specifically with perfumes other than
those covered under C-I-19. Mr. Sridharan submits that the
test of common commercial / trade parlance has to b applied
in interpreting schedule entries pertaining to classification,
relying upon the judgments of the Supreme Court in
Chemical and Fibres of India Ltd. V/s. Union of India
reported in (1997) 2 SCC 664 and Ramavatar
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Budhaiprasad V/s. Asst. Sales Tax Officer, Akola reported
in (1961) 12 STC 286 in support of his contention. He further
submitted that the specification and standards prepared by
the Bureau of Indian Standards as published have been
considered strong indicators of commercial and consumer
parlance and glossaries published by the Indian Standards
Organization have been relied by Courts in various judgments.
10. In support of his contention, he placed reliance
upon the decision of Chemical and Fibres of India Ltd.(supra),
Warden & Co. V/s. CCE, Thane reported in (1995 Suppl. 1
SCC 740 and CCE, Kanpur V./s. Krishna Carbon reported
in (1989) 1 SCC 150. He further submitted that as per the
Indian Standard Glossary of terms relating to natural and
synthetic perfumery material, the term 'perfumery compound'
has been specifically defined as a concentrated base which is
further diluted and modified to suit various end uses.
'Perfume' has been distinctly defined as a solution of
perfumery compound in ethanol or other suitable solvent
meant for use as a personal adornment.
11. Mr.Sridharan further submits that there is a
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distinction between perfumery compound and perfume which
clearly indicates that both terms are to be treated distinctly in
commercial or trade parlance, therefore, it is submitted that
perfume /fragrance cannot fall within entry relating to
perfumes C-II-86, the product will remain classified under C-I-
19. Mr.Sridharan and Mr. Patkar further submitted that the
entry relating to perfumes under the Bombay Sales Tax Act
prior to 1981 (E-I-19) is specifically interpreted in the case of
CST V/s. Gordhandas Tokersey reported in (1983) 52 STC
381, using the principle of noscitur a sociis to refer to
preparations as are commonly known in market for use on the
body as perfumes.
12. This interpretation was referred in Pandurang
Agarbatti V/s. State of Punjab reported in [1997] 107
STC 56 and G.Radhakrishna Murti & Co. & Ors. V/s.
CFTO, Vijaywada reported in [1999] 113 STC 161 (SC).
The entry being interpreted in the above mentioned decisions
is similar to the entry C-II-86 dealing with perfumes, therefore,
what is covered by entry C-II-86 are those goods commonly
used directly on the human body. It is an undisputed fact that
the impugned products are not used directly on the human
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body and are used in various industries for the purpose of
respective end products. The revenue itself has accepted that
the impugned products were sold to various manufacturers of
soaps, cosmetics, agarbattis, etc. The impugned products
therefore cannot fall within entry C-II-86.
13. Mr.Sridharan submitted that in G.Radhakrishna
(supra), the Apex Court had held that the meaning of the word
'perfume' in modern times has undergone a change, observing
that the etymological meaning or the original meaning of
'perfume' may come from the word 'fumare' (smoke), but in
modern parlance it has undergone a change. The word
'perfume' orginates from the word 'fumare' which means
smoke or to emit vapour, These are the meaning given by the
Oxford Dictionary. The word 'Perfume' is also considered in
Gordhandas Tokersey (supra). In that case, the Court observed
that when two or more words which are capable of being
understood in an analogous manner are coupled together,
they should be understood in the common analogous sense
and not in a general sense. By applying this principle the
Court held that 'perfume' in C-I-19 referred to such
preparation as they are commonly known in the market for
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use on the body as perfumes. Mr.Patkar, learned counsel
appearing for the Petitioners in the Writ Petitions relied
upon the judgment of this Court in Gordhandas
Tokersey (supra) and adopted the submissions of
Mr.Sridharan.
14. Mr.Sridharan further submits that it is well accepted
that in cases of classification, the burden of proof is placed on
the revenue which must be discharged in order to sustain an
assessment as valid. In this behalf, he relied on the judgment
of the Supreme Court in Hindustan Ferodo Vs. CCE
reported in 1997 (89) ELT 16(SC) and Union of India V/s.
Garware Nylons reported in (1996) 10 SCC 413. In his
view, the revenue has failed to discharge its burden by placing
evidence on the basis of which the impugned product can be
classified as perfumery compounds under C-II-86.
15. Mr.Sonpal on the other hand supported the
impugned order. Mr.Sonpal, learned counsel appearing for the
revenue relied upon the decision of this Court in Bradma of
India Limited V/s. State of Maharashtra reported in [1998] 110
339 and submitted that if there are two entries, one general
and the other special, the special entry should be applied for
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the purpose of levying tax. The general entry should give way
to the special entry. Accordingly, he submits that the
impugned order cannot be faulted. Mr.Sonpal, then relied
upon the decision of this Court in Gordhandas Tokersey. He
has also relied upon the judgment of G. Radhakrishna (supra).
16. Having considered the rival contentions, statutory
interpretations we agree with Mr. Sridharan that a composite
expression must be construed as a whole and in the words of
Bennion, it is incorrect to assume that the whole is necessarily
the sum of its parts, because a certain meaning can be
collected by taking each word in turn and then combining their
several meanings. In this connection, we find that it will be
appropriate to refer to dictionary meanings of certain words
which will throw light on various terms with which we are now
concerned.
17. The definition of the term in the "Indian
Standards Glossary of terms relating to natural and
synthetic perfumery published by the Bureau of Indian
Standard and referred to the definition of aromatic
chemicals at item 2.7, essential oil 2.47, essential oil
and synthetic 2.48, perfumery compound 2.87. The
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aforesaid definitions are reproduced below:-
" 2.7 Aromatic Chemicals /Aroma Chemicals -
Organic chemicals derived by organic synthesis
oras isolate from natural essential oils possessing
distinct aroma. Used as a raw material of terms,
and it may not necessarily include all the legal
meaning of the terms."
"2.47 Essential Oil - It is a volatile perfumery
material derived from a single source of vegetable
or animal
igorigin by a process,
hydrodistillation, steam distillation, dry distillation
such as
or expression."
"2.48 - Essential Oil, Synthetic - It is a composition
generally consisting of natural essential oils,
aromatic chemicals, resinoids, concretes,
absolutes, etc., but excluding animal or vegetable
non-essential oils and not having volatile residue in
excess of 10 percent by mass. It is so composed
that it bears a close resemblance primarily in
odour to a naturally occurring essential oil.
" 2.87 Perfumery Compound - A concentrated
base which is further diluted with or without toning
and further modification to suit various end-uses."
Entry No. C-I-19 reads as under;
19. Aromatic Chemicals and 4% 4% 1-7-1981
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natural and synthetic oils 31-3-1984
and their compounds
19. Aromatic chemicals and 4% 4% 1-4-1984 to
their residue and natural 10-8-1988
and synthetic essential
oils and their compounds
19. Aromatic chemicals and 4% 4% 1-8-1988 to
their residue and natural 30-4-1992
and synthetic essential
oils and their compounds
(except the culinary and
flavouring essences
covered by entry 78 of
Part II of this Schedule)
19. Aromatic chemicals and
ig 4% 4% 1-5-1992 to
their residue and natural 8-9-1992
and synthetic essential
oils and their compounds
except the perfumes and
culinary and flavouring
essences whether in a
concentrated or diluted form.
19. Aromatic chemicals and 4% 4% 9-9-1992 to
their residue and natural 31-3-1994
and synthetic essential
oils and their compounds
(except the culinary and
flavouring essences
covered by entry 78 of
Part II of this Schedule)
19. (1) Raw materials for 4% 4% 1-4-1994 to
preparation of perfumes, 30-9-1995
fragrances and flavors,
that is to say-
(a) Natural and synthetic
oils and their compounds
(b) Fragrance and flavour
chemicals.
(2) Industrial flavours and 4% 4% 1-4-1994 to
fragrances in 30-9-1995
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concentrated form.
18. A bare reading of the entry reveals that Aromatic
chemicals and their compounds are not intended to be treated
separately from natural and synthetic essential oils. In our
view, the use of the conjunction "and" with the word "and
their compounds" is intended to apply to the compounds of
natural synthetic oil and also compounds of aromatic
chemicals and natural and synthetic oils. It will also be seen
from the fact that wherever it was intended that the product
or derivative chemicals were to be grouped to create a distinct
category, specific language has been used.
19. For instance for the period 1-1-1984 to 10-8-
1988 apropos "Raw Materials", aromatic chemicals and
their residues on one hand and Natural and Synthetic
oils and their compounds on the other, the words "and
their compounds" does not apply to aromatic chemicals
and their residues. For the period 11-8-1988 to 30-4-
1992 a further modification is shown by way of
exclusion from C-I-19, of culinary and flavour essences
covered by entry 78 of Part II. For the period 1-5-1992
to 8-9-1992, the perfumes and culinary and flavouring
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essences whether in a concentrated or diluted form
have been excluded. For the period 9-9-1992 to 31-3-
1994, the product described in the entry is identical to
that for the period 11-8-1988 to 30-4-1992. For the
period 1-4-1994 to 30-9-1995 further change is made in
the system which distinguishes perfumes, fragrance
and flavour. The natural and synthetic oil and their
compounds and fragrance and flavouring chemicals.
20.
Thus although in the case of Raw materials it
is seen that the expression "and their compounds is
applicable only to the natural and synthetic essential
oils but not applicable to fragrance and flavour
chemicals or industrial flavours and fragrance in
concentrated form. A perusal of the definition of
Aromatic Chemicals, Essential Oil and Essential Oil,
Synthetic referred in 2.7, 2.47 and 2.48 below reveals
that they can be combined with each other. For
example Essential Oil Synthetic is shown as a
composition of natural essential oils and aromatic
chemicals etc. The Tribunal was justified in negating
the revenue's interpretation of the word "and their
compounds" in schedule entry C-I-19 covers only the
compounds of natural and synthetic oil and essential
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oils, to the exclusion of aromatic chemicals.
21. We are also of the view that the perfumery
compounds are compounds of aromatic chemicals
within the meaning of entry C-I-19 and in view thereof,
we hold that the perfume is covered under C-II-86,
which is reproduced below:-
86. Perfumes(excluding those 15% 15% 1-7-1981 to
covered by entry 19 of
ig 31-3-1989
Part I of this Scheduled)
depilatories, cosmetics,
toilet articles and
preparations whether
medicated or otherwise
(including hair creams,
hair-tonic and liquid
shampoo) but excluding
those covered by any other
entry of this or any other
schedule.
22. In conclusion, we answer the three questions in the
affirmative, namely in favour of the assessee and against the
revenue. The References are disposed of accordingly. In view
thereof Writ Petitions are also disposed off. Rule discharged
therein. No order as to costs.
(A.K.MENON, J.) (S.C.DHARMADHIKARI, J.)
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23. After the judgment was pronounced, the parties
informed us that the Petitioners in two Petitions namely Writ
Petition No.2055 of 2003 and Writ Petition No.2056 of 2003
have furnished bank guarantees pursuant to the interim
orders of this Court. Since the issues raised in the Writ
Petitions were subsequently considered as subject matter of
Sales Tax References, the Writ Petitions moved do not survive
and disposed of in this manner. In such circumstances, the
request made by the Petitioners for discharging the bank
guarantees is accepted. The bank guarantees to stand
discharged.
(A.K.MENON, J.) (S.C.DHARMADHIKARI, J.)
