Case: T.V.L. Nilsin Industries Vs. State of Tamil Nadu

the Calcutta High Court in M/s. Nilsin Company vs. Collector o f Central Excise, 1984 ECR 928. The issue before the Calcutta High Court was whether ultramarine blue was a pigment for the purposes of assessment under item 14 (1) (5) The learned Judge said: "(13). The respondents in paragraph 17 of the affidavit-in-opposition have averred that in paints like emulsion paints or water paints, pigment finishes for leather, printing ink, textile printing, Ultramarine Blue is compounded in larger proportion. The y have also set out in paragraph 18 of their expression pigment given in various Coating by Paul Nylen and Edward Sunderland, `pigment as the `internationally accepted term for the powdered material intended to be production of paints, printing inks, plastic materials, rubbers, vitrine enamels. In the said book Ultramarine Blue has been classified as a synthetic and inorganic pigment. The respondents have also relied upon Websters 3rd International Dictionary, 1968, page 1714 which describes `pigment, inter alia as a natural or synthetic inorganic or organic substance that imparts a colour including black or white to other materials especially, a powder or easily powdered substance mixed soluble and used in making paints, enamels and other coating materials, inks, plastic, rubber and also for imparting opacity and other desirable properties as well as colour.(14) After the hearing was concluded, the learned Advocate for the petitioner placed before me the Condensed Chemical Dictionary. 10th Edn. revised by Gessner G. Hawley, published by Van Nostrant Reinhold Co. Incidentally, the respondents in paragraph 17 of their affidavit- in-opposition had relied upon he 1953 edition of Van Nostrands Chemical Dictionary f or the definition of `pigment as a colouring substance. The said Condensed Chemical Dictionary Claims to contain three distinct types of information, namely, (i) technical descriptions (ii) extended definition, and (iii) descriptions or identifications of wide range of trade mark products. The said Dictionary, in my view, does not support he claim laid by the petitioner. Thus at page 1068 of the said Dictionary the properties of Ultramarine Blue have been, inter alia, described as "Inorganic pigment ; blue powder ; good alkali and heat resistance..." 11. The said Dictionary mentions the following uses of Ultramarine Blue : "Colorant for machinery and toy enamels ; white baking enamels, printing inks, rubber products, soaps and laundry blues, cosmetics, textile printing." "Note: Used in very low percentage to intensify whiteness of white enamels rubber compounds, laundered clothing etc. by offsetting yellowish undertones ; gives a `blue rather than a `yellow white". According to the same Dictionary, the expression "Colorant" means any substance that imparts colour to another material or mixture". Colourants are either dyes or pigments" (vide page 267 of the book). I may also refer to the definition of `pigment given at page 817 of the said Condensed Chemical Dictionary:- "Any substance, usually in the form of a dry powder, that imparts colour in another substance or mixture, Most pigments are insoluble in inorganic solvents and water... To qualify as a pigment, a material must have positive colorant value." * 12. The definition given in the said book excludes certain substances including whiting. Mr. Bhattacharyya is not correct in contending that Ultramarine Blue is whiting because, according to the said dictionary, whiting is entirely a distinct product consisting of finely ground, naturally occurring calcium carbonate derived form chalk, limestone, etc. and used as filter, putty, etc. One of the properties of Ultramarine Blue is that it is a whitener, i.e. a white pigment or colorant used in the paper and textile industries (vide Condensed Chemical Dictionary, page 1096). 13. Therefore, I conclude that the condensed Chemical Dictionary, 10th Edn., relied upon by the petitioners shows that ultramarine Blue is a pigment having various uses one of which is whitening or brightening textiles and clothes. (15) For the foregoing reasons, I conclude that there is overwhelming evidence that Ultramarine Blue is a pigment. 14. Ultramarine Blue does no constitute a separate product as contended by the petitioner. People conversant with and dealing with the said product understand Ultramarine Blue as a pigment, i.e. as a colorant. 15. It is used for imparting colour to various substances. Thus, not only from he stand-point of its physical constituents but also from the stand-point of its various uses and of popular understanding Ultramarine Blue is a pigment. In this connection, it is also necessary to note the comprehensive manner in which the entry No.14 gave description of the goods which were subject to the rate of duty specified in the said item. Item No. 14 (1) (5) was broadly in the form of a residuary clause for inclusion of pigments, colours, paints and enamels not otherwise specified. Thus, pigments, colours, paints and enamels which have not been mentioned in any other sub items would be covered by Item 14 (1) (5) of the First Schedule to the Central Excises and Salt Act, 1944. Accordingly, I hold that the petitioner is not en titled o challenge the validity of the excise duties imposed upon the product Ultramarine Blue manufactured by the petitioner. No question also arises of commanding the respondents to refund excise duties recovered from the petitioner under Item No. 14 (1) (5) of the First Schedule to the Central Excises &Salt Act, 1944".The Madras High Court in the judgment under appeal rightly relied strongly on the Calcutta High Court decision to come to the conclusion that ultramarine blue was a pigment and, therefore, liable to sales tax under Item 110. Neither the assessees nor the Sales Tax authorities place any evidence before the Tamil Nadu Sales Tax Appellate Tribunal or before the High Court. They preferred to rely upon the decisions of the High Courts aforementioned. We are in no doubt that ultramarine blue or `neel is a pigment, having regard to the dictionaries and literature mentioned in the decisions which we have discussed above and that, having regard to its use as a whitener or colouring matter, it is popularly understood to be a pigment. 16.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Therefore, I conclude that the condensed Chemical Dictionary, 10th Edn., relied upon by the petitioners shows that ultramarine Blue is a pigment having various uses one of which is whitening or brightening textiles and clothes. (15) For the foregoing reasons, I conclude that there is overwhelming evidence that Ultramarine Blue is aBlue does no constitute a separate product as contended by the petitioner. People conversant with and dealing with the said product understand Ultramarine Blue as a pigment, i.e. as ais used for imparting colour to various substances. Thus, not only from he stand-point of its physical constituents but also from the stand-point of its various uses and of popular understanding Ultramarine Blue is a pigment. In this connection, it is also necessary to note the comprehensive manner in which the entry No.14 gave description of the goods which were subject to the rate of duty specified in the said item. Item No. 14 (1) (5) was broadly in the form of a residuary clause for inclusion of pigments, colours, paints and enamels not otherwise specified. Thus, pigments, colours, paints and enamels which have not been mentioned in any other sub items would be covered by Item 14 (1) (5) of the First Schedule tothe Central Excises and Salt Act, 1944. Accordingly, I hold that the petitioner is not en titled o challenge the validity of the excise duties imposed upon the product Ultramarine Blue manufactured by the petitioner. No question also arises of commanding the respondents to refund excise duties recovered from the petitioner under Item No. 14 (1) (5) of the First Schedule to the Central Excises &Salt Act, 1944".The Madras High Court in the judgment under appeal rightly relied strongly on the Calcutta High Court decision to come to the conclusion that ultramarine blue was a pigment and, therefore, liable to sales tax under Item 110. Neither the assessees nor the Sales Tax authorities place any evidence before the Tamil Nadu Sales Tax Appellate Tribunal or before the High Court. They preferred to rely upon the decisions of the High Courts aforementioned. We are in no doubt that ultramarine blue or `neel is a pigment, having regard to the dictionaries and literature mentioned in the decisions which we have discussed above and that, having regard to its use as a whitener or colouring matter, it is popularly understood to be a pigment.