AMENDED WRIT PETITION IN THE HIGH COURT OF CHHATTISGAKH ATBILASPUR W.P.ITINO. 6978/2008 PETITIONER RESPONDENTS 1. M/s. Kamesh Traders, through its proprietor- Gopi Bajaj, S/o. Late Shri Khial Das Bajaj, aged about 48 Years, Proprietor R/o. Bajaj Building, Rajendra Nagar, Link Road, Bilaspur (C.G.) State of Chhattisgarh, Through Secretary, Department of Revenue, D.K.S. Bhavan, Raipur (C.G.) 2. Commissioner, Commercial Taxes, Govemment of C.G., Civil Lines, Raipur (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OFXNDIA ^Bn ». •<:!» ^c^\ , ':i^^ ^ •;'5a;isg(l^<4>^ 4F« hy fflGH COURT OF CHHATTISGARH : BILASPUR PETITIONER WRIT PETITION m No. 6975 OF 2008 M/s Kamesh Traders RESPONDENTS Versus State ofChhattisgarh & Another And W.P. (T) Nos.6976, 6977, 6978 and 6979 of2008 Post for pronouncement ofthejudgment onthe^_'day ofDecember, 2010 Sd/- SatishK.Agnihotri Judge I-' ^ ^ mOH CQURT OF CHHATTISGARH : BILASPUR PETITIONER RESPONDENTS WRIT PETITION (T) N0.6975 OF 2008 M/s Kamesh Traders Versus State ofChhattisgarh & Another PETITIONER RESPONDENTS WRIT PETITION (T) N0.6976 OF 2008 M/s Kamesh Traders Versus State ofChhattisgarh & Another PETITIONER RESPONDENTS WRIT PETITION CT1 N0.6977 OF 2008 M/s Kamesh Traders Versus State ofChhattisgarh & Aaother WRITPETITION (T) N0.6978 OF 2008 PETITIONER M/s Kamesh Traders RESPONDENTS Versus State ofChhattisgarh & Another !~: PETITIONER RESPONDENTS And WRIT PETITION m N0.6979 OF 2008 M/s Kamesh Traders Versus State ofChhattisgarh & Another ^3 .-catf (Writ petitions under Article 226 ofthe Constitution oflndia) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Sunil Otwani, Advocate for the petitioner. Shri A.S. Kachhawaha, Dy. Adv. General for the State. (Delivered on this _S^cfday ofDecember, 2010) 1. W.P.(T) Nos.6975, 6976, 6977, 6978 and 6979 of 2008, involve the same question of law asto whether or not the products of cello company i.e. serving tray, flask, stainless steel Tiffin with plastic body, water jug and hotpot (casserole) would fall within the meaning of 'utensils' under Entry No.13 ofPart II of Schedule II of the Chhattisgarh Value Added Sales Tax (Amendment) Act, 2005 (for short "the Act, 2005 "). The facts of all the writ petitions are common and, as such, they are being disposed ofby this common order. However, for the purpose of this order the facts, as mentioned in W.P. (T) No. 6975 of 2008 are being referred. 2. By these writ petitions, M/s Kamesh Traders (petitioner in all the writ petitions) seek quashing ofthe order dated 31-1-2007 passed by the respondent No.2 Commissioner, Commercial Tax, whereby and whereunder the petitioner was directed to pay the Value Added Tax (for short "the VAT") at the rate of 12.5% as per the Entry No.l of Part IV ofSchedule II ofthe Act, 2005. 3. The facts, in nutshell, as projected by. the petitioner, for proper adjudication of the cases, are that the petitionei-- is the distributor of Cello Products. The petitioner is registered under the provisions of IIQStt IH l^fite-— ..r---.i ^£ Act, 2005. The State Govemment imposed the VAT at the rate of 12.5% on the serving tray, flask, stainless steel Tiffm with plastic body, water jug and hotpot (casserole). According to the petitioner, the aforesaid products will fall under the Entry No.13 ofPart II of Schedule II of the Act, 2005, fherefore, the petitioner is required to pay the VAT at the rate of4% only. 4. Against the aforesaid action of the respondent authorities, the petitioner moved an application imder Section 70 ofthe Act, 2005 before the Commissioner, Commercial Taxes. In the said appeal, the Commissioner by order dated 31-1-2007 directed the petitioner to pay the VAT at the rate of 12.5% as per the Entry No.l ofPart FV ofSchedule II ofthe Act, 2005. Thus, these petitions. 5. Shri Otwani, leamed counsel appearing for the petitioner, would submit that the respondent No.2 failed to appreciate the fact that the reason given by the respondent No.2 in the order dated 31-1-2007 is not just and proper. The respondent No.2 failed to appreciate that it is not necessary that the tenn utensils has to be limited to cover only those utensils, which are generally used in kitchen. Shri Otwani would farther submit that serving tray, flask, stainless steel Tiffin with plastic body, waterjug and hotpot (casserole) come withinthe defmition of 'utensils'. Thus, the petitioner is not liable to pay the VAT at the rate of 12.5%. The petitioner is liable to pay the VAT only at the rate of 4%. Even the State of Madhya Pradesh is imposing the VAT at the rate pf4% on the aforesaid'articles. Thus, the impugned order dated 31-1-2007 may be quashed and the t- I: 7. respondent authorities may be directed to impose the VAT at the rate of4% only. Shri Kachhwaha, leamed Dy. Advocate General appearing for the State, would submit that though the hot pot (casserole) is used for keeping the food, it is not made ofmetals only, fherefore, it does not come within the category of kitchen utensil and there is no such commodity named as hot pot in the schedule. The Commissioner after appreciating the facts and circumstances of the in its letter and spint rightly passed the impugned order and fhe same does not warrant any mterference of this Court. Shri Kachhawaha, would further submit that the impugned order was passed by the Commissioner on 31-1-2007 whereas the petitioner preferred the instant petitions on 11-12-2008 i.e. after lapse of more than 22 months without assigning sufficient and cogent reasons for causing delay in filing the present petitions. Thus, the petitioner is not entitled to any reliefand the present petitions may be dismissed. It is useful to refer the relevant entries of Schedule H part II and Part IV to Section 8 ofthe Act, 2005, which reads as under: PARTII SI.No Description Rate of Rate of Taxu/s8(i) Tax u/s (percent) 8(ii) (percent) (1) (2) (3) X XXX XXX X XX XXX 13. AI1 utensils including 4 pressure cookers/pans except utesils made of precious metals. (4) XXX XXX h: ./ "^~' x XXX XXX XXX PARTIV Sl.No Description Rate of Tax Rate of Tax u/s 8(i) u/s 8(ii) (percent)_(percent) (1) (2) 1. All other goods not covered by Schedule I and Schedule II (3) 12.5 (4) 8. The question for consideration before this Court is that whether the above stated articles, i.e. serving tray, flask, stainless steel Tiffin with plastic body, waterjug and hotpot (casserole) come within the defmition of 'utensils' and fall within entry 13 of part 11 of the second schedule ofthe Act, 2005. The entry 13 starts with the word "all utensils". Utensils have a very wide connotation. It further states that all the utensils except utensils made ofprecious metals. There is no dispute that the above stated articles are not made of precious metals and there is no distinction whether it is made of stainless steel, plastic or any other metal and as such all utensils come within entry 13 ofsecond schedule wherem VAT payable at the rate of4%. The contention of the leamed counsel for the Revenue that since some of the articles are not made of metals only, therefore they would not come within the category ofKitchen utensils, deserves to be rejected on a simple ground that entry does not distinguish utensils on the basis of materials for making of utensils, except precious metals. L; »a fc3 ;';' •'J A?' 9. Stroud's Judicial Dictionary ofWords & Phrases, Volume 3, Sixth Edition, defines the word 'utensils' as under: "UTENSIL. "Utensil, anything necessary for our use and occupation; household stuffe" (Cowel). 10. Chambers 21 Century Dictionary, Revised Edition, defines the word 'utensil' as under: "utensil 'ju'tensil' - noun an implement or tool, especially one for everyday or domestic use. Cooking utensils. 14c: from French utensile, from Latin utensilis 'fit for use' or 'useful', from uti to use." 11. The New Intemational Webster's Comprehensive Dictionary of English Language, Encyclopedic Edition, defines the word 'utensil' as under: "u-ten-sil (yoo-ten'ssl) n. A vessel, t(Sol, implement, etc., serving a useful purpose, especially for domestic or farming use. See synonyms under TOOL. [<OF utensile <L utensilis fit for use <utens, ppr. ofwft" use]" The Oxford English Dictionary, Second Edition, Volume XIX, defmes the word 'utensil' as under: "2. Any article useful or necessary in a household; a domestic implement, vessel or article of fiimiture, now esp., an instrument or vessel in common use in a kitchen, dairy, etc.: t&eq.p/., = household goods." 12. 13. ^ On reading of the definitions given by the various dictionaries, it is clear that all the articles which are usefiil for kitchen and domestic purposes, come within the definition of 'utensils'. T]ie distinction has already been made in the entry itselfthat the articles aforestated, u y KS KM .11.1,, ^ made of precious metals would not fall within the entry 13 and would fall under other entry. 14. It is trite law that in case of imposition of taxes, the word should be construed in the same way in which it is understood in ordinary parlance in the area in which fhe law is in force. The above sated articles may not be used on day to day basis but understood as utensils and used as articles ofkitchen and for domestic purposes. 15. The Supreme Court, in M/s. Annapwna Biscuit Manufacturing Co. Kanpur v. Commissioner ofSales Tax, U.P. Luckno'w , observed as under: "4. It is well settled rule of construction that the words used in a law imposing a tax should be constmed in the same way in which they are understood in ordinary parlance in the area in which the law is in foree. Ifan expression is capable of a wider meaning as well as narrower meaning the question whether the wider or the narrower meaning should be given depends on the context and Jhe background ofthe case." 16. Thermal flask/vacuum flask is known in common parlance as article used for storing beverages like coffee, tea, milk etc. at a particular temperature which is frequently and commonly used in the household. The Hot-Pot (casserole) is also used for keeping the .wegetables, chapatis, rice and other food stuffhot to be delectable. Serving Tray is used regularly for serving dishes and other food stuff. Waterjug and stainless steel Tiffm with plastic body, are also frequently used in kitchen and for domestic purposes. • I- 'AIR 1981 SC 1656 / ^EaL il.ilUnltllttlli.il.. ^ 17. For the reasons mentioned hereinabove, there is no dispute that the above stated articles are utensils and are used regularly for domestic purposes. 18. A Division Bench of the High Court ofKamataka, in Stoyekraft Pvt. Ltd. v. State ofKarnataka , observed as under: "20.1n view ofthe aforesaid discussion we are of the view that the phrase 'utensils' used in entry No. 5 includes the stainless steel LPG stove, kerosene stove and vacuum flask which are of common utility in a household and the same fall within entry No. 5 and liable to be taxable only at four per cent." 19. In view ofthe foregoing, the articles in question are taxable only at •V- the rate of 4%. Accordingly, the authorities are directed to re-assess and pass appropriate order in accordance with law. 20. All the petitions are allowed to the above extent.No order asto costs. iowri/Amit Sd/- :, _ Satteb^AgBihotn Judge (2006) 147 STC 329 (Kam)