P.A. THlLLAl ClilDAllBARA NADAR

THE

ADDL.

APPELLATE ASSTI •

COMMISSIONER, MADURA! & ANR.

JULY 29, 1985

[V.D. TULZAPURKAR, SABYASACHl MIJKHARJl AND RANGANATH MISRA, JJ.]

Tamil Nadu General Sales Tax Act, 1959 'Coconut' - Whether 'fresh fruit' or 'vegetable' - Whether exempt from levy of sales tax.

Words & Phrases C 'Coconut' - Whether 'fruit' or 'vegetable' - Tamil Nadu General Sales Tax Act 1959.

Under G.P. No. 1764 dated 5.4.1960 as amended on 22.12.1960 issued under the Tamil Nadu General Sales Tax Act, 1959 the Government had exempted "all sales of vegetables (other than the ]) dried awl. dehydrated vegetables) fresh fruits, betal awl plantain leaves, flowers, eggs, meat awl fish (other than canned meat awl fish) from the levy of sales tax under the Act."

The High Court, held that since ripened coconut in which the appellant was dealing as a grocer, could not be regarded as a "fresh fruit" or a "vegetable", the appellant's sales tum-over E in coconut in each of the Assessment Years 1967-68, 1968-69 awl 1969-70 was liable to sales tax awl includible in its taxable turn-over.

Dismissing the Appeals

lllWl: ·(by the Court-per Tulzapurkar, Sabyasachi Mukharji awl Ranga:nth Misra JJ.)

The High Court was right in its conclusion that the appellant's sales turnover in coconut was not exempt from the

levy of sales tax. [343 E, 344 G] G

2. ln interpreting items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue awl for which purpose they classify diverse products articles awl substances resort should be had not to the scientific awl technical meaning of the terms or expressions used but to their popular H meaning, that is to say, the meaning attached to them by those dealing in them. [342 C, 343 HJ

" lndo International Industries v. Commissioner of Sales Tai, Uttar Pradesh [1981] 3 s.c.R. 294 referred to.

(Per i'ubapurkar, .J.)

l• It cannot be disputed that a cocollllt would be a 'fruit' B in the botanical sense but unless it can be said to be a 'fresh fruit' it will not fall within the exemption notification. Similarly a coconut may be available in a vegetable market but because'cif that it does not become a 'vegetable. It is well-known that the kamel of the coconut is used as an igredient in the culinery preparations for adding taste to the food on the table but it is hardly used as a substantial article of food on the c table. 'Fresh fruits' and 'vegetables' being household articles of everyday use will have to be construed in their popular sense, meaning the sense in which every householder will understand them. A householder when asked to bring some 'fresh fruit' and some 'vegetable' for the evening meal would obviously not bring coconut. [342 F-343 A] ' D His Majesty the King v. Planters Nut and Chocolate Company Limited. [1951] C.L.R. (Ex.) 122 and Commissioner of Sales Tax v, Jaswant Singh Cham Singh [1967] 2 s.c.R. 720 referred to.

2, The legislative history of the earlier exemption notifications issued by the State Government are of no assistance to E the appellant. All these earlier notifications clearly show that coconut .JiSS always subject to sales tax till G.P. No. 1764 dated April 5; 1960 was issued under the 1959 '\ct. There is no material to show that the Government had changed its view and exempted coconut from taxation under the 1959 Act. Under the .earlier notifications merely 'fruits' had been exempted from levy of F sales tax and since coconut would have come"within the category of fruits, the same was expressly excluded from the exemption thereby making the sale thereof liable to tax. [343 B-D]

(Per Sabyasacbi llukharji, .J.)

l. It cannot be disputed that ripened coconut will not be

a "fresh fruit" in terms of the said notification; One cannot be sure on the aspect, that ripened coconut cannot be considered to be vegetable. Whether ripened coconut can be considered to be 'vegetable' or 'fruit' in any part of India will depend upon the evidence available. Tastes vary, habits differ, and food served,

P.A.THIUAL v. THE ADDL. ASSTI. COMMNR. [TULZAPURKAR, J,] 341

prepared and cons.m.e.i at the tables in different parts of the COlllltry alao. vary. Therefore, it is safer not to rest the decision on ubjective ideas if possible. [344 B-Cj

2, It is for the asses see who claims exemption to adduce evidence that a particular article is an exempted item, and if he cannot or if he fails to do so, the revenue may proceed on its basis. In such a situation, the assessee should have. such an opportullity. That opportunity cannot be foreclosed.

It cannot categorically be said that ripened coconut colild never be considered to be 'veget!f, ble' • In this case the asses see has adduced no evidence. [344 I>-E]

CIVIL APPELLATE JURISDICTION of 1973.

Civil Appeal Nos. 1434-35

From the Judgment and Order dated 20.12.1972 of the Madras High Court in Writ Petitions No~. 1439.and 3425 of 1970.

AND

Civil Appeal No. 1003 of 1975.

From the Judgmeqt ·.~ Order dated 6.3.1974 of the Madras High Court in T.c. No;· 71 of 1974. ·

J, Ramamurthy foF the Appellant.

_s.~, besaLand A.v.Rangam for the Respondent •

. • · the foilowing Judgments of the Court were delivered

TULZAPURKAR, J.

Whether a coconut (neither tender nor dried but a ripened coconut with or without husk) is a "fresh fruit" or a "vegetable" so as to earn exemption from the levy of sales tax under G.G. No. 1764 dated 5.4.1960 as amended on 22.12.1960 issued under the Tamil Nadu General Sales Tax Act,

1959. is the question raised in these appeals.

The High Court has held that under the aforesaid notification the Government had exempted "all sales of vegetables (other than the dried and dehydrated vegetables) fresh fruits, betal and plantain leaves, flowers, eggs, meat .and fish (other than canned meat and fish)" from the levy of sales tax under the 19S9 Act but since a ripened coconut in whkh the appellant was dealing as a

. A

grocer, could not be regarded as a"fresh fruit" or a "vegetable" the appellant's sales turn over in coconuts in each of the Assessment Years 1967-68, 1968-69 and 1969-lO was liable to sales tax and includible in his taxable turnover.

It is this view of the High Court which has been challenged before us by counsel for the appellant-assessee.

The canon of construction to be invoked in these types of statutes has been repeatedly enunciated. in several decisions of this Court but it is not necessary to refer to all of them.

In Iodo international Industries v. Comdssiooer of Sales Tax, Uttar ptadesh [1981] 3 S.C.R.294, this court ruled thus:

"It is well-settled that in interpreting items in statutes like the Excise Tax Acts or Sales Tax Acts, • whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances resort should be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted."

If regard be had to this rule of construction, the question raised will have to be answered against the appellant.

On the first aspect of the question it can not be disputed that a coconut would be a'fruit' in the botancial sense but unless it can be said to be a 'fresh fruit' it will not fall within the exemption notification. Similarly a coconut may be available in a vegetable market. but because of that it does not become a 'vegetable'. It is well-known that the kernel of the coconut is used as an ingredient in the culinery preparations for adding taste to the food but it is hardly used as a substantial article of food on the table.

The concerned articles namely, 'fresh fruits' and 'vegetables' being household articles of everday use for the . table these will have to be construed in their popular sense meaning the sense in which every householder will understand them. Viewed from this angle, the most apposite test would be the one adopted in the case of HtS Majesty the King V• Planters Nut and Chocolate Company Limited [1951] C.L.R. (Ex.)

P.A.THILLAI v. THE ADDL. ASSTI. CQMMNR. [MUKHARJI, J. j 343

.122 (which decision was approved by this court in ComoissiODer of A Sales Tax v. Jaswant Singh Charan Singh) [1967 J 2 s.c.R. no.

Would a house holder when asked to bring home soffie 'fresh fruit' and some 'vegetable' for the evening meal bring coconut?

Obviously, the answer is in the negative.

Counsel for the appellant sought to rely upon the legisli' lative history by referring some of the earlier eemption notifications issued by the State Government under the earlier Madras General Sales Tax Act, 1939 which were operative till the Tamilnadu General Sales Tax Act, 1959 was passed but in our view such reliance is of no avail to the appellant. In the first place all these earlier notifications clearly show that coconut was always c; subject to sales tax.till G.Q. No. 1764 dated 5.4.1960 was issued under the 1959 Act and there is no material to show that the Government had changed its view and exempted coconut from taxation under the 1959 Act.

Secondly, under the earlier notifictions merely 'fruits' had been exempted from levy of sales

tax and since coconut would have come within the category of D fruits the.same as expressly excluded from the exemption thereby making the sale thereof liable to tax.

The legislative history, therefore, is of no assisance to the appellant.

Similarly', how coconut was dealt with under the amendment introduced by the Tamil Nadu Act 2 of 1970 by which coconut was brought under single point taxation would be immaterial.

In v1ew of what is stated above we feel that the High Court was right in its conclusion that the appellant's sales turnover in coconut was not exempt from the levy of the sales tax.

The appeals are, therefore, dismissed with no order as to costs.

SABYASACIU MIJKllARJI, J, Under G.o •. No 1764 dated 5.4.1960, F as amended on 22 .12 .1960, issued under the Tamilnadu General Sales Tax Act, 1959, 'fresh fruit' and 'vegetable' are exempt from the levy of sales tax• Whether ripened coconut with or without husk can be considered to be 'vegetable' is the question in these appeals.

I respectfully agree with my learned brother Tulzapurkar J, that principles to be adopted in deciding that question are well- -settled i.e. in interpreting items in statutes whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances, resort should be had

not to the scientific and technical meaning of the terms of H the expressions used, but to their popular meaning, that is to

344 SUPIUlMJ:: COURT REPORTS [1985] SUPl'.2 s.c.R.

A say, the meaning attached 'to them by those dealing in them.

Fresh fruit' or vege.table' has not been defined in the Act.

My learned brothers have come to the conclusion that it cannot be 'disputed that ripened coconut will not be a 'fresh fruit,. in terns of the said notification, I respectfully agree.

IS B.ut my learned brothers have also found that ripened coconut cannot be considered to be 'vegetable', I am not so sure on this aspect. Whether ripened coconut can be considered to be a 'vegetable' or 'fruit' in any part of India will depend upon the evidence. available. Tastes vary, habits differ and food served, prepared and consumed at the tables in different parts of the C country also vary. Therefore, it is safer not to rest our decision onour subjective ideas, if possible. I, however, respectfully agree with the conclusion reached by my learned brothers that the appeala should be dismissed. ·

It is well-settled that it is for the assessee who claims exemption to adduce evidence that a particular article is an D exempted item and if he cannot or if he fails to do so, then the revenue may proceed on its basis. In such a situation, the assessee should have such an opportunity. We cannot foreclose. such an opportunity. We cannot categorically say that ripened coconut could never be considered to be 'vegetable'. But in this case the assessee has adduced no evidence. In the premises, the E. assessee must fail and I respectfully agree with the order proposed by my learned brothers.

Appeals dismissed.