G.S.T.R.No.49 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH GSTR No.49 of 2005 Date of Decision:- January 21, 2010 M/s Mohri Ram Ram Lal, Kaithal ...Petitioner VERSUS State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr.A.P.Bhandari, Advocate for the appellant-assessee. Mr.Gagandeep S.Wasu, Senior DAG, Haryana. MEHINDER SINGH SULLAR, J. The matrix of the facts culminating in the commencement, relevant for disposal, of present reference and emanating from the record is that in the wake of returns for the assessment year 1996-97, filed by M/s Mohri Ram Ram Lal, Kaithal (for brevity “the assessee”), the Assessing Authority, Kaithal assessed the tax on Sunflowers and Toria Oil Seeds @ 2% as per entry No.7(a) of Haryana Government Notification dated 30.10.1996, issued under Section 15 of Haryana General Sales Tax Act, 1973 (hereinafter to be referred as “the Act”). Thereupon, the Revisional Authority suo motu took up the matter and ordered the levy of tax on both the said items of Sunflowers and Toria seeds @ 4% instead of 2%. The tax liability of the assessee was re-assessed and tax was accordingly enhanced. 2. Aggrieved by the order of the Revisional Authority, the assessee filed the appeal before the Sales Tax Tribunal. The Tribunal observed that the Sunflowers and Toria Oil Seeds are two different articles and upheld the order of the Revisional Authority. Consequently, the appeal of the assessee was dismissed, vide order dated 16.2.1999. G.S.T.R.No.49 of 2005 2 3. The assessee did not feel satisfied with the impugned order of the Tribunal and sought the matter to be referred to this Court to decide the law point, invoking the provisions of Section 42 of the Act. 4. Accordingly, the Tribunal referred the following question of law for determination of this Court:- i) Whether mustard oil seeds constitutes “toria” or is only “Sarson”? 5. We have heard the learned counsel for the parties and have gone through the record and relevant provisions of the Act with their valuable assistance. 6. Learned counsel for the assessee has canvassed that as per entry No.7-A of the Haryana Government Commercial Taxes Department Notification dated 30.10.1996 issued under section 15 of the Act, the Mustard Oil Seeds (Sarson ke tel ke beej) are taxed at the rate of 2%, but the Revisional Authority directed to tax the Toria Oil Seeds at the rate of 4%, treating it to be a different commodity than Sarson. The argument further proceeds that since the Toria and Sarson are the same commodities and constitute mustard oil seeds, so the Toria oil seeds ought to have been taxed at the same rate of 2% instead of 4% in this respect. 7. On the other hand, learned counsel for the State has urged that there is no ambiguity about the entry pertaining to words “Sarson ke tel ke beej” and since the Toria oil seeds are different than the Mustard oil seeds (Sarson oil seeds), so the authorities below have rightly charged the tax at the rate of 4% accordingly. 8. Above being the position on record, now the only question that arises for determination is, whether the Mustard oil seeds (Sarson ke tel ke beej) and Toria Oil Seeds are the same or the different commodities. 9. In order to determine the indicated substantial question of law, one has to trace the history of evolution and scientific research in the field of G.S.T.R.No.49 of 2005 3 agriculture. It is not a matter of dispute that in old era, not only that, there was a paucity of irrigation facilities and there were also paucity of funds with the agriculturists in India. The farmers used to grow the varieties of traditional seeds of wheat, paddy, sugarcane, cotton and sarson crops etc., which used to consume less water, but used to take a long time to ripe. Such traditional crops were entirely dependent upon rain water. No one can lose sight of the fact that there has been a deep revolution and scientific research in the field of agriculture as well. With the passage of time, infrastructure was created and scientists worked in the field of agriculture. The hard labour of the scientists was translated into reality and they developed specified seeds of wheat, paddy, sugarcane, sarson cotton and other commodities. Such specified/modified seeds of wheat, paddy, sarson, sugarcane, cotton and other known by different nomenclature crops not only enhanced the production but also reduced the harvesting period, irrigation requirement and agriculture costs. Sequelly, agriculture scientists develop the variety of specified/modified seeds and labelled them with different nomenclature of the same crops, but basic commodities remained the same. 10. Likewise, earlier farmers used to cultivate traditional black Sarson as secondary crop, which used to take considerable more time to harvest it. Thereafter, with the passage of time, many varieties of seeds of Sarson were also developed, such as brown sarson, black sarson, white sarson and yellow sarson also known as Toria, in order to increase the yield and to reduce the period of harvesting. Although the Toria oil seed is also a modified form of Sarson oil seed, but the fact remains is that such oil seeds may be called by different names, but its basic use and structure (of the crop) remained the same. Therefore, it cannot possibly be saith that Toria oil seeds have any basic purpose or structural difference than that of Sarson oil seeds in any manner. 11. The Hon'ble Supreme Court had an occasion to deal with such a situation, in a case reported as Manohar Lal v. Municipal Commtitee, Amritsar, G.S.T.R.No.49 of 2005 4 (1976) 3 SCC 636, in which, the accused were convicted under Section 16 of the Prevention of Food Adulteration Act, 1954, for being in possession of adulterated Toria oil. The Trial Court had acquitted the accused on the ground that Toria oil was not mentioned in the list of edible oil and was not an item for which any standard was prescribed. The High Court, on the other hand, held that Toria oil was really a Mustard oil and so held the offence established. The matter went in appeal and Hon'ble Apex Court observed as under:- “The amended definition of mustard seed in Item A.05.15 includes dried seeds of brassica compestris to which class toria admittedly belongs. Before the amendment, the definition of mustard seed in Item A.23 referred to “allied” varieties of brassica and hence included brassica compestris. Now as will appear from the definition of mustard oil, it is oil expressed from mustard seeds belonging inter alia to the compestris variety of brassica. It is not disputed that toria seeds belong to the compestris variety of brassica. The amended definition of mustard seed only makes this clear. The previous definition of mustard seed referred to allied varieties of brassica, and the amended definition specified the varieties. Thus toria oil falls squarely within the definition of mustard oil.” 12. Moreover, as per Botanical name, Toria and Sarson is same commodity as the brassica mustards var toria and brassica compestris var sarson respectively. In addition to it, in Central Sales Tax Laws, rapeseed (sarson), black mustard, (Kali sarson), brown sarson (Rai Sarson), Jamba (Safed Sarson, Taramira), all are treated as rapeseed (Rai Sarson) for the purpose of Central Sales Tax Act. Even according to Bhargawa Hindi Dictionary, the Toria is another kind of Sarson. 13. Again, it is not a matter of dispute that in the wake of clarification by Deputy Excise & Taxation Commissioner, the Head (Oilseeds Section), Department G.S.T.R.No.49 of 2005 5 of Plant Breeding, CCSHAU, Hisar clarified regarding Sarson and Toria vide Memo No.HAU/HDS/98/149-50 dated 20.7.1998, the relevant portion of which is as under:- “Sarson is widely term used for all the Rapeseed-Mustard crops cultivated in the country. Similarly, rapeseed-mustard is the one item, used for all the crops belonging to the group of sarson. Mustard has been separately defined being a self-pollinated crop and the name raya is used in general. It is also known by various local names like; rai, bunga sarson etc. Rapeseed-Mustard is further classified into different sub-groups like; toria, brown sarson and yellow sarson. Under your terminology only the rapeseed group is covered being called as Brassica campestris var. Toria (toria group). Secondly yellow sarson and brown sarson (Brassica campestris var. Sarson) which is not correct. The correct technical name are Brassica campestris var. brown sarson and Brassica campestris var. yellow sarson, but is does not cover the mustard. Further it is clarified that all these three groups are differently called as toria, brown sarson and yellow sarson.” 14. The learned State counsel did not point out any material or law, even to suggest remotely that the Sarson oil seeds or Toria oil seeds have any basic difference, in any manner. 15. Thus, it would be seen that if the totality of the material as discussed here-in-above is put together, then the only irresistible conclusion is that as the basic purpose and structure of both the commodities are the same, therefore, the Toria is a specified/modified seed of Sarson and are the same thing for the G.S.T.R.No.49 of 2005 6 purpose of levying tax, which are otherwise known as such in the trade world/agriculture field. Therefore, it is held that the Toria oil seed is also a mustard oil seed and is the same thing as Sarson oil seed, for the purpose of levying tax. 16. Therefore, the question of law is answered accordingly in favour of the assessee and the instant reference made on the application of the assessee is allowed. (MEHINDER SINGH SULLAR) JUDGE January 21, 2010 (ASHUTOSH MOHUNTA) AS JUDGE Whether to be referred to reporter? Yes/No