CWP No.14869 of 2006 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.14869 of 2006 Date of decision: 24-9- 2010 Excise and Taxation Officer. -----Petitioner Vs. M/s T.R. Solvent Oil Pvt. Ltd. & another. -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Mr. Avneesh Jhingan, Advocate for the petitioner. Mr. Gagandeep Singh, D.A.G., Haryana. --- Adarsh Kumar Goel, J. 1. This petition has been filed against order of the Haryana Tax Tribunal dated 29.6.2005 in S.T.A. No.228 of 2004- 05. 2. The respondents-assessee made application under Section 56(2) of the Haryana VAT Act, 2003 (for short, “the Act”), seeking clarification whether Caster de-oiled Cake, Neem de-oiled 1 CWP No.14869 of 2006 Cake and Mahua de-oiled Cake are covered by entry 27 in Schedule ‘B’ to the Act dealing with organic manure and chemical fertilizer, which were tax free. Order dated 24.5.2004 was passed to the effect that the items in question were not covered by Schedule ‘B’ and were not tax free. The same were covered by entry 6 of Schedule C and were taxable. On appeal, the Tribunal reversed the said view and held that the said items will be covered by Entry 27. 3. We have heard learned counsel for the parties. 4. The Entries in question are reproduced below:- “SCHEDULE B 27. Organic Manure and Chemical Fertilizer. SCHEDULE C 6. Oil cakes and de-oiled cakes including de-oiled rice bran.” 5. The Tribunal in support of its view that items in question were covered by Entry 27, held as under:- “........Now the question arises whether Castor de-oiled rice cake (b) neem de-oiled cake and (c) Mahua de- oiled cake is organic manure not liable to tax falling within entry No.27 of Schedule B to the Act or these are de-oiled cakes falling in entry No.6 of Schedule C to the Act taxable at 4 per cent. In “A.G. Technologies 2 CWP No.14869 of 2006 Manure and Fertilizer”, Organic Manures have been defined as natural products used by farmer to provide food (Plant nutrients) for the crop plants. There are a number of organic manures like farmyard manure, green manures, compost prepared from crop residues and other farm wastes, vermin compost, oil cakes and biological wastes-animal bones, slaughter house refuse. 2. How are organic manures beneficial in the cultivation of crops? Organic manures increase the organic matter in the soil; Organic matter in turns releases the plant fool in available form for the use of crops. However, organic manures should not be seen only as carriers of plant food. These manures also enable a soil to hold more water and also help to improve the drainage in clay soils. They provide organic acids that help to dissolve soil nutrients and make them available for the plants. 3. How are organic manures differing from fertilizers? Organic manures have low nutrient content and therefore need to be applied in larger quantities. For example, to get 25 Kg. of NPK; one will need 600 to 2000 Kg. of organic manure where as the same amount of NPK can be given by 50 Kg. of an NPK complex fertilizer. The nutrient content of organic manures is highly variable from place to place, lot to lot, and method of preparation. The composition of fertilizers is almost 3 CWP No.14869 of 2006 constant. For example urea contain 46% N regardless of which factory makes it any where in the world. Oil cakes There are many varieties of oil cakes, which contain not only nitrogen but also some P and K alongwith large percentage of organic matter. These oil cakes are of two types. i. Edible oil cakes-suitable for feeding cattle. ii. Non-edible oil cakes- not suitable for feeding cattle. Oil cakes are quick acting organic manure. Though they are insoluble in water, their nitrogen becomes quickly available to plants in about a week or in 10 days after application. Oil cakes should be well powdered before application, so that they can be spread evenly and are easily decomposed by micro-organisms. Depending on crops, oil cakes are applied as broadcast, drilled or placed near root zone while earthing up. Mineralization and slow release of N: The oil cakes are slow in mineralizing and hence compliment quicker acting inorganic fertilizers whenever they are applied together. Gaseous N losses from oil cakes applied to the plough layer are much smaller than losses from NO3 fertilizers. Some of these oil cakes retard nitrification of the soil/urea and thereby increase N uptake by the plants. P uptake from calcium phyte ex oil cakes is higher than that from the super phosphate in maize plants. 4 CWP No.14869 of 2006 Learned counsel for the appellant submitted that Castor de-oiled cake (b) neem de-oiled cake and (c) Mahua de- oiled cake is an “organic manure” and is tax free falling in entry No.27 of schedule B of Act, 2003. It was submitted that oil cakes are slow in mineralizing and hence compliment quicker acting inorganic fertilizers when they are applied together. Solvent Extractors Association of India which is Premier Association of Vegetable Oil Industry and Trade has observed that oil cakes/oil meals provide slow nourishment stimulation protection from soil me matodes and insects, improve yields and quality of product like taste, flavour amino acid composition etc. It was submitted that Neem, Mahua and castor are tree borne oil seeds. The Solvent Extractors Association of India (Premier Association of Vegetable Oil industry and Trade) organized workshop on Minor and Tree Borne Oilseeds and their value Added Products at Raipur Chhatisgarh on 2.7.2004 where it was revealed that tree borne oil seeds such as sal, mahua, neem, karanja, jatropha, jojoba, wild apricot, cheura, kokum, simarouba, mango kernel etc. are tree borne oil seeds. Estimated potential is 30-35 lakh tones of seeds of similar product like taste, flavour amino acid composition etc. collection is 5-6 lakh tones of seeds. Edible grade fat: cocoa butter susititue/vanaspati. Non- edible oils: is used in cosmetic pharmaceutical, diesel/kerosene and other industries. Oilseeds are fed to the hopper of the expeller. They are coked with steam. The expeller squeezes the oil from seed, oil drops out and oil cakes will be put out. This process extracts 5 CWP No.14869 of 2006 around 25% of the oil in the oilseeds. This is first phase. Flaker (Flaker is a machine which converts seeds to flaker) can also be used in place of expeller. Further, the oil cakes will be loaded to “oil maker” extractors. Then petroleum solvent is added to the oil cakes in the extractors. After extraction, the oil will form a miscella of oil and solvent. The solvent is cooled by using water- cooled. Condensers and recovered solvent is sent to main tank. Thus, the oil and solvent is separated. The solvent absorbed by the oil cakes are heated externally. The solvent vapors evolved will be cooled using condensers and the solvent is sent to the main storage tank. The oil cake is made free from oil and solvent is removed. This de-oiled cake is cooled and bagged for dispatch for sale as manure. In the proceedings of the workshop on minor and tree borne oil seeds and their value added products dated 2nd July, 2004 at Raipur, it was deliberated that neem oil cakes acts as the best fertilizer when it is mixed with urea it delayed releases of nitrogen from urea and thus, maximum utilization of urea is achieved. Learned counsel for the appellant submitted that tree borne oil seeds which gives rise to oil cake or de-oiled cake after extraction from oil cake is organic manure not liable to tax and is not oil cakes and de-oiled cakes falling in entry 6 of schedule C to the HVAT Act taxable at the rate of 4%. The word organic is defined in Chambers Twentieth Century Dictionary as pertaining to, derived from, like of the nature of an organ (in any sense) of an organism, organum or organization organized inherent in organization structural formed as if by organic process organic manure is derived from some thing which has 6 CWP No.14869 of 2006 its origin in living organism. Mahua, neem, castor are tree borne oil seeds. Learned counsel for the appellant thus, submitted that neem de-oiled cake, mahua de- oiled cake castor de-oiled cake is organism manure. It was submitted that M/s T.R.Solvent Oils Pvt. Ltd., Dunds (Palwal), Mathura Road, Faridabad, sought to obtain permission from the Director of Agriculture Haryana under the Fertilizer Control Order, 1985 for giving them licence to deal in the sale of neem de-oiled cake, mahua de-oiled cake and castor de-oiled cake and he replied that these items are “organic manure” and not covered within FCO, 1985 and as such no licence was needed under the FCO 1985 by them to be able to sell these items. Learned counsel for the appellant submitted that the Director Agriculture is an expert who knows what is and what is not “organic manure” within the meaning of FCO 1985 and his opinion should be taken to be the opinion of an expert. Learned Joint Director Legal for the State, on the other hand, submitted that oil cake and de-oiled cake may be “fertilizer” but it is no “organic manure”, if tree leaves are dumped in a pit, it will be manure. After some time, it will be fertilizer. In “Melosuganril Discretionary” the work “organic” is defined as pertaining to a class of chemical compounds derived from living organisms (2) of or pertaining to the organs of an animal or plant (3) characterized by the systematic arrangement of parts. It is, thus, clear that need de-oiled cake, mahua de-oiled cake and castor de-oiled cake is “organic manure”. It is, however, less potent vis-à-vis other forms of fertilizers. 7 CWP No.14869 of 2006 In our opinion, need de-oiled cake, mahua de-oiled cake and castor de-oiled cake is “organic manure” as it is the offshoot of a living organism namely tree born oil seeds”. 6. Learned counsel for the petitioner-State submitted that the Tribunal failed to consider that there being specific entry of oil-cakes and de-oiled cakes, it was not open to it to hold that de- oiled cakes of the varieties dealt with by the assessee were covered by Entry 27. Even if Entry 27 was wide enough to cover oil cakes, the general entry could not be referred to in the presence of specific Entry 6 of Schedule C. He also submitted that classification of a commodity did not depend on its user but how it was known in the trade. Reliance has been placed on judgment of the Hon’ble Supreme Court in Mukesh Kumar Aggarwal v. State of MP, 1988 Supp SCC 232. He also submitted that if two views are possible, the view which is against the assessee should be followed in the case of an exemption, as held in State Level Committee v. Morgardshammar India Limited, (1996) 1 SCC 108. He also submitted that external aid to interpretation should be avoided when the language was clear. 7. Learned counsel for the assessee supported the impugned judgment by submitting that in case of two competing entries which are generic and wide in scope, entry which was favourable to the assessee should be preferred. In such a case, 8 CWP No.14869 of 2006 interpretation by the Tribunal based on evidence should not be disturbed. He relied upon following judgments:- i) Commissioner Sales Tax v. Fadral Chemical Works 53 STC 425 (All HC) To submit that three tests for classification of commodities - common parlance test, Predominant user test and Sale purpose test should be applied simultaneously. ii) Commissioner Sales Tax vs.Triloki Nath and Sons, 57 STC 322 (All HC) To submit that if there are two competing entries covering the same item, entry more beneficial to the assessee should be held to be applicable. iii) Commissioner Sales tax vs. Ram Chandra Asha Ram, 123 STC 414 (SC) To submit that predominant user test should be applied when a commodity could be put to more than one uses. 8. Question for consideration is whether the Tribunal was justified in holding Caster de-oiled Cake, Neem de-oiled Cake and Mahua de-oiled Cake to be organic manure under Entry 27 of Schedule B in preference to entries of oil cakes i.e. Entry 6 of Schedule C. 9. Before considering the rival submissions, we may notice the nature of commodities involved. 10. Oil cake is the coarse solid residue obtained when oil is extracted from oil seeds. It is commonly used as cattle feed and 9 CWP No.14869 of 2006 poultry feed. Oil cake containing toxic elements such as caster oil cake, Neem de-oiled Cake and Mahua de-oiled Cake are used as fertilizer. In Jai Bhagwan Oil & Flour Mills v. Union of India, (2009) 14 SCC 63, it was observed:- “23. What is contained in reference works/technical journals, or well known in trade/industrial circles, need not be established by independent “evidence”. It is well known that oil cake is the coarse solid residue obtained when oil is extracted from various types of oilseeds like peanuts, soyabeans, linseed, mustard, sesame and sunflower seeds. Oilcake is produced not only in oil mills/industries, but also in village-level ghanis. The standard preservation/detoxification procedure for oilcakes is sun-drying, controlled mechanical heating or by chemical processing. Oilcake is rich in proteins and minerals and commonly used as cattle feed and poultry feed. Oilcake containing toxic elements (as, for example, oilcake from castor beans) is used as fertiliser.” 11. In Commissioner, Sales Tax, UP, Lucknow v.Triloki Nath and Sons, (1984) 57 STC 10, it was observed:- “It is next to be seen whether “neem ki khali” (oil cake of neem) is used as “fertilizer”. All “oil cakes” are resultant products received under the process of extracting oil contents of seeds or fruits of plants or trees having oil contents. The “oil cakes” are brought in use in various ways. Certain varieties of “oil 10 CWP No.14869 of 2006 cakes” are used as cattle feed, like mustard oil cakes. Linseed oil cakes etc. It is generally known that “neem ki khali” because of its contents and smell etc. is not used for cattle feed and it is generally used as manure. Although the process of production of “oil cakes” of all varieties is the same and then reach the consumers through the same channel of distribution, but these are brought to use differently. If any particular variety of oil cake, namely, “neem ki khali”, is capable of being used as fertilizer the same would be exempted from taxation being covered by the aforesaid Notification No.ST/3470/X dated 16th July 1956, granting exemption to “fertilizers”. But those “oil cakes,” which are not generally sued as “fertilizers”, but are generally utilised as cattle feed, the same would be liable to tax being covered by Notification No. ST-IOI-2995/X-6(7)-73 dated 3rd April 1975. It is common knowledge that “neem ki khali” is not generally used as cattle fodder,but it is commonly known to be used as “fertilizer”.” 12. In United Oil Mills v. State of Haryana, (1992) 84 STC 72 (P&H), it was observed :- “....there can be no escape from the conclusion that oil cakes and de-oiled cakes cannot be clubbed together to deny exemption from payment of sales tax to de-oiled cakes as has been done by the legislature in respect of oil cakes. In other words, de-oiled cakes being fertilizers, would be exempt from payment of sales tax for the relevant period...” 11 CWP No.14869 of 2006 13. In State of A.P. v. Modern Proteins Ltd., 1994 Supp (2) SCC 496, para 1, it was observed:- “....After decortication and passing through expellers of the groundnut seeds, groundnut oil and groundnut oil cakes are obtained. The groundnut oil cake again is subjected to the process in the solvent in which “food hexane” is sprayed to obtain solvent groundnut oil and groundnut deoiled cake...” 14. The Tribunal has found that items in question though being part of generic items of de-oiled cakes could be used only as organic manure. This factual composition and use of the items in question has not been disputed before us on behalf of the State. Thus, only use to which items can be put is organic manure. 15. We may now come to the question whether an item apparently included in a specific wider entry can be held to fall in a more general entry on the ground of its user. 16. Different commodities are classified on the basis of their use and denomination. Generally, a tariff entry is construed by applying common parlance test by considering what sense is to be attributed to an entry in its popular sense by people conversant with the subject matter. This general principle can be departed from if the context so requires. If the product is 12 CWP No.14869 of 2006 highly technical and scientific, it may not be construed in popular sense. User test though not determinative of nature of goods is not always ruled out, particularly when commodity in question is capable of being put to only one use. 17. In Dunlop India Ltd. v. Union of India, (1976) 2 SCC 241, it was observed:- “29. It is well established that in interpreting the meaning of words in a taxing statute, the acceptation of a particular word by the trade and its popular meaning should commend itself to the authority. 30. Dealing with the meaning of the term “vegetables” in the Excise Tax Act in King v. Planters Nut and Chocolate Company Limited, 1951 Canada Law Reports 122, the Exchequer Court observed as follows: “Now the statute affects nearly everyone, the producer or manufacturer, the importer, wholesaler and retailer, and finally, the consumer who, in the last analysis, pays the tax. Parliament would not suppose in an Act of this character that manufacturers, producers, importers, consumers, and others who would be affected by the Act, would be botanists. The object of the Excise Tax Act is to raise revenue, and for this purpose to class substances according to the general usage and known denominations of trade. In my view, therefore, it is not the botanist’s conception as to what constitutes a ‘fruit’ or ‘vegetable’ which 13 CWP No.14869 of 2006 must govern the interpretation to be placed on the words, but rather what would ordinarily in matters of commerce in Canada be included therein. Botanically, oranges and lemons are berries, but otherwise no one would consider them as such.” The Exchequer Court also referred to a pithy sentence from “200 chests of Tea”, per Story, J. [(1824) 9 Wheaton (US) 435] that “the Legislature does not suppose our merchants to be naturalists, or geologists, or botanists. 31. The above Planters Nut case was referred to with approval by this Court in Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, AIR 1961 SC 1325. In Ramavatar case this Court was concerned with the meaning of the word “vegetables” occurring in C.P. and Berar Sales Tax Act, 1947. This Court held as follows: “But this word must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance. It has not been defined in the Act and being a word of everyday use it must be construed in its popular sense meaning ‘that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it’. It is to be construed as understood in common language.” 32. Again in Commissioner of Sales Tax, Madhya Pradesh, Indore v. Jaswant Singh Charan Singh, AIR 1967 SC 1454, this Court had to deal with the 14 CWP No.14869 of 2006 word “charcoal” used in Madhya Pradesh General Sales Tax Act. It was contended in that case that “charcoal” would be covered under Entry I of Part III of Schedule II to that Act. This Court while holding that charcoal would be included in coal, observed as follows: “Now, there can be no dispute that while coal is technically understood as a mineral product, charcoal is manufactured by human agency from products like wood and other things. But it is now well settled that while interpreting items in statutes like the Sales Tax Acts, resort should be had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense.” This Court again referred with approval to the decision in Planters Nut case and followed the principle laid down in Ramavatar case. In South Bihar Sugar Mills Ltd. v. Union of India, AIR 1968 SC 922, the question that was raised related to Item 14-H in the Schedule I to the Central Excise and Salt Act, 1944, which contained compressed, liquefied or solidified gases, inter alia, carbonic acid (carbon dioxide). This Court observed as follows: “It is also not correct to say that because the sugar manufacturer wants carbon dioxide for carbonation purpose and sets up a kiln for it that he produces carbon dioxide and not kiln gas. In 15 CWP No.14869 of 2006 fact what he produces is a mixture known both to trade and science as kiln gas, one of the constituents of which is, no doubt, carbon dioxide.” This Court finally observed: “The kiln gas in question therefore is neither carbon dioxide nor compressed carbon dioxide known as such to the commercial community and therefore cannot attract Item 14-H in the First Schedule.” Similarly in Minerals & Metals Trading Corporation of India Ltd. v. Union of India, (1972) 2 SCC 620, this Court dealing with the meaning of the word “Wolfram ore” again approvingly referred [SCC p. 625, para 9] “not to the scientific or technical meaning but to the meaning attached to them by those dealing in them in their commercial sense.” 18. In Akbar Badrudin Giwani v. Collector of Customs, (1990) 2 SCC 203, it was observed: “40. It may be pointed out that this Court has clearly and unequivocally laid down that it is not permissible but in fact it is absolutely necessary to depart from the trade meaning or commercial nomenclature test where the trade or commercial meaning does not fit into the scheme of the commercial statements. This Court referring to the observation of Pullock, B. in Grenfell v. Inland Revenue Commissioner (1876) 1 Ex D 242 observed: (quoted at SCR p. 724) 16 CWP No.14869 of 2006 “that if a statute contains language which is capable of being construed in a popular sense such statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning of course, by the words ‘popular sense’, that sense which people conversant with the subject matter with which the statute is dealing would attribute to it.” But “if a word in its popular sense and read in an ordinary way is capable of two constructions, it is wise to adopt such a construction as is based on the assumption that Parliament merely intended to give so much power as was necessary for carrying out the objects of the Act and not to give any unnecessary powers. In other words, the construction of the words is to be adapted to the fitness of the matter of the statute.” 19. In Mukesh Kumar Aggarwal & Co. v. State of M.P., 1988 Supp SCC 232, , it was observed:- “6. In a taxing statute words which are not technical expressions or words of art, but are words of everyday use, must be understood and given a meaning, not in their technical or scientific sense, but in a sense as understood in common parlance i.e. “that sense which people conversant with the subject- matter with which the statute is dealing, would attribute to it”. Such words must be understood in their “popular sense”. The particular terms used by the legislature in