2023INSC892 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3773 OF 2011

M/S TRIVENI GLASS LIMITED REP.

BY ITS DEPUTY GENERAL

MANAGER (SALES AND P.R.)

SHRI R.K. SINHA …APPELLANT

VERSUS

COMMISSIONER OF

TRADE TAX, U.P. …RESPONDENT

WITH

Civil Appeal NO. 5914 OF 2023

M/s TRIVENI GLASS LTD. …. APPELLANT

VERSUS

ASSTT. COMMISSIONER (ASSESSMENT)

TRADE TAX …RESPONDENT

WITH

Civil Appeal NOs.5965-5966 OF 2023

M/s TRIVENI GLASS LTD. …. APPELLANT

VERSUS

2

COMMISSIONER OF

TRADE TAX, UP ….RESPONDENT

J U D G M E N T

Aravind Kumar, J.

1. The point that arises for our consideration is whether “tinted

glass sheets” manufactured by the appellants is liable to be taxed as

“goods or wares made of glass” under the Notification No.5784

dated 07.09.1981 being Entry No.IV or as unclassified item.

2. In all these appeals, the above common question of law arises

for our consideration. The facts in brief which are common in Civil

Appeal No.3773 of 2011 relates to the tax assessment years 1996-97,

Civil Appeal No.5914 of 2023 relates to the notice issued for re-

assessment for the tax assessment years 1992-93 to 1996-97 and

whereas Civil Appeal Nos.5965-66 of 2023 relates to the tax

assessment years 1998-99 and 2003-04 respectively.

3. The appellant deals with manufacturing and sale of sheet glass,

tinted glass, coloured glass, figured glass, void glass, wired glass,

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float glass and neutral glass. After taking note of the books of

accounts tendered during the course of the assessment proceedings the

assessing officer opined after enquiry that tinted glass has been

manufactured by assessee in a separate unit and the process adopted

for its manufacture is different from manufacture of sheet glass.

Assessing Officer has further opined in his order that raw materials

used in manufacture of tinted coloured glass are cobalt oxide, carbon

oxide, iron oxide etc. besides those used in the manufacture of sheet

glass. Assessing Officer has further held that the transparency and

density of tinted coloured glass is different from the simple glass

surface as also solar radiation on the absorption capacity of tinted

coloured glass being more than that of the simple sheet glass. He

further concludes in his assessment orders that in the ordinary and

common parlance the tinted glass is not recognised or understood as

sheet glass.

4. Hence, the assessing officer imposed tax @15% on the sale of

the goods by holding that said goods cannot be included in the

category of plain glass but under the category of “all goods and wares

made of glass” as reflected in the Notification No.5784 dated

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07.09.1981. The appeals filed against the said assessment orders came

to be dismissed and the imposition of tax @15% came to be upheld.

The appellate authority also relied on the meaning of the word

“goods” as reflected in circular dated 28.09.1993 for arriving at a

conclusion that only plain glass sheet has been taken as unclassified

item and not the goods in question. The assessee was unsuccessful

before the Trade Tax Tribunal. The contentions raised and grounds

urged contrary to the findings recorded by the assessing officer and

the appellate authority also did not find favour by the tribunal. In

other words, the orders of the authorities came to be affirmed by the

tribunal. The assessee pursued its grievance before the High Court by

filing a revision petition contending that plain glass panes which are

commercially known as sheet glass includes sheet glass both in tinted

and non-tinted forms and the entry “plain glass panes” cannot be

interpreted to exclude the tinted glass from its purview. The

contention of the appellant that manufacturing of tinted/coloured glass

is the same as that of uncoloured glass also did not find waiver by the

tribunal. Hence, the revision application/petition came to be

dismissed.

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5. The assessment orders which related to the tax assessment

years 1996-97, 1998-99 and 2003-04 were the subject matter of the

appeals and revision as noticed hereinabove. However, for the tax

assessment years 1992-93 to 1996-97 notices under Section 21(2)

came to be issued stating thereunder that said goods were liable to be

taxed @15% while tax @10% inclusive of surcharge had been

deposited. Hence, appellant was called upon to showcase as to why

sales tax @15% should not be levied on the sale of the said goods.

The notice issued for the tax assessment year 1996-97 came to be

adjudicated and an assessment order came to be passed on 12.9.2002

which is the subject matter of Civil Appeal No. 3773 of 2011. The

notices demanding tax @15% for the tax assessment years 1992-93 to

1996-97 came to be challenged in Writ Petition No. 283 of 2001

before the High Court of judicature at Allahabad which writ petition

came to be dismissed in the light of said issue having already been

laid to rest in appellant’s case itself, in the light of assessment order

for the tax assessment year 1996-97 having been passed by rejecting

the similar contentions. Hence, in all these appeals the common

question of law has arisen and as such they are taken up together for

consideration, adjudication and determination thereof.

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6. We have heard the arguments of Shri S.K. Bagaria, learned

senior counsel appearing on behalf of the appellant and Shri R.K.

Raizada, learned senior counsel appearing for the respondent.

7. Shri S.K. Bagaria, learned senior counsel appearing for the

appellant-assessee has contended that tinted glass is also sheet glass

and as such attracts 10% tax and not 15% as claimed by the revenue.

He would contend that the only difference between both the glasses is

colour. He would urge that tinted glass and simple glass are same

commodities and both do not fall under the category of “goods and

wares made of glass”. By placing reliance on several judgments noted

hereinbelow he would submit that tinted glass is glass in its primary

sense and no material difference in the manufacturing process of

tinted sheet glass and plain glass exists. He would elaborate his

submissions by contending that tinted glass is liable to be excluded as

it is nothing but “plain glass panes” and he drew our attention to the

dictionary meaning of the word “plain” and “panes” to contend that

there is no distinction between these two commodities. He submits

that adding of colour will not take away the tinted glass sheet out of

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the ambit of exclusion clause of Entry No. 4 of Notification No.5784

dated 07.09.1981.

8. He would rely upon the description of the expression “glass”

and “glass sheet” given in Indian Standard Specification for Flat

Transparent Sheet Glass (Third Revision) March, 1988 to substantiate

his contention. He would also submit that the revenue has failed in its

attempt to discharge the burden and demonstrate that a particular item

falls in a particular entry. He would submit that in the earlier

assessment year the assessing authority itself had treated the “tinted

glass sheet” as plain glass sheet and as such for the assessment year in

question it should be accordingly treated.

9. In these factual circumstances the recourse to tax by treating

the commodity in question as falling within the residuary entry has to

be resorted to is also his contention. In support of his submissions, he

has relied upon the following judgments:

(i) Atul Glass industries (Pvt.) Ltd vs Collector of

Central Excise And Hindustan Safety Glass Works

Ltd. Vs Union of India & Ors. (1986) 3 SCC 480

(ii) Gujarat Steel Tubes Ltd. And Ors. VS State of

Kerala and Ors. (1989) 3 SCC 127

8

(iii) Geep Flashlight Industries Ltd. Vs Union of

India & Ors. (2002) 9 SCC 545

(iv) Brindavan Bangle Stores and Ors vs Asstt.

Commissioner of Commercial Taxes and Another.

(2000) 1 SCC 674

(v) State of Jharkhand and others Vs LA Opala

R.G. Limited. (2014) 15 SCC 136

(vi) M/s. Indo International Industries Vs

Commissioner of Sales Tax. Uttar Pradesh. (1981)

2 SCC 528

(vii) Commissioner of Sales Tax, Madhya Pradesh

Vs Triveni Sheet Glass Works Ltd. And Others

(1989) SCC Online MP 346: (1990) 76 STC 308

(FB)

(viii) Commissioner of Sales Tax. Delhi

Administration. Vikas Bhawan, New Delhi Vs

Baluja Glass Company 1979 SCC Online Del 300:

(1980) 46 STC 17

(ix) Commissioner of Sales Tax Vs Mohd. Ayub

& Sons 1981 SCC Online All 971: (1982) 50 STC

187

(x) HPL CHEMICALS LTD. Vs Commissioner

of Central Excise, Chandigarh (1997) 2 SCC 677

(xi) U.P. Glass Works Ltd. Vs Commissioner,

Sales Tax. UP, Lucknow. 1973 SCC Online All

422: (1973) 32 STC 252 : 1973 Tax LR 2589

(xii) Commissioner. Sales Tax, U.P. Lucknow Vs

Banaras Bead Manufacturing Co., Varanasi 1968

SCC Online All 380: (1970) 25 STC 100

9

(xiii) Jalal Plastic Industries And Ors. vs Union of

India And Ors. 1981 (8) ELT 653

(xiv) Commissioner Of Sales Tax vs Dawoodbhoy

M. Tayabally (1975) 36 STC 291

(xv) Nirlex Spares (P) Ltd. Vs Commissioner of

Central Excise (2008) 2 SCC 628

(xvi) State of Uttar Pradesh & Others vs.

Aryaverth Chawal Udyog & Others (2015) 17 SCC

324

(xvii) Commissioner of Customs (Import),

Mumbai vs. Dilip Kumar & Company & Ors.

(2018) 9 SCC 1

10. Per contra, Shri R.K. Raizada, learned senior counsel

appearing for the respondent state would support the orders passed by

the authorities and the High Court and prays for dismissal of the

appeals.

FINDINGS RECORDED BY THE HIGH COURT

11. The learned High Court before whom grounds as urged by

Shri S.K. Bagaria, learned senior advocate, appearing for the assessee

had been urged was of the opinion that six (6) questions were required

to be answered and accordingly framed the following six (6)

questions:

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(i) Whether the entry "All goods and wares made

of glass". excludes plain glass panes and treated

the same as unclassified item, the Trade Tax

Tribunal and lower authorities were justified to tax

tinted/plaint glass panes as declared commodity?

(ii) Whether in view of common parlance as well

as user of the tinted/coloured glass panes and plain

glass panes are identical, in spite of that the tax has

been imposed on the coloured / tinted glass panes

as declared commodity instead of unclassified

item?

(iii) Whether plain glass panes does not cover

tinted/ coloured glass panes?

(iv) Whether once the entry plain glass panes is

specifically excluded from the entry "All goods

and wares made of glass" the authorities were not

justified in imposing tax on plain glass panes

(coloured and tinted glass panes) as goods made of

glass wares/

(v) Whether in view of the fact that by mixing inch

of colours no new commercial commodity comes

into existence as tinted/coloured glass panes is a

plain glass panes, still the tax can be imposed as

declared commodity instead of unclassified item?

(vi) Whether in any view of the matter, the order

passed by the Trade Tax Tribunal is justified?

12. The High Court has noted that authorities had taken note of the

fact that during survey conducted through Special Investigation

Branch Unit, Allahabad, it was noticed that manufacturing process

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adopted for manufacturing of tinted sheet was different or distinct

from the manufacturing process adopted for manufacture of glass

sheet and it was also noticed that the tinted glass sheet was

manufactured in a separate unit. The High Court also noted that

authorities had noted that density and transparency of the tinted

colour sheet glass is different from that of ordinary sheet glass and the

solar absorption power of tinted coloured glass sheet is much more

than plain sheet glass and in the market or in the common parlance

‘tinted glass sheet’ is not treated as plain sheet glass.

OUR FINDINGS

13. The tug of war between the assesses and the revenue in these

appeals revolves around the plea of assessee that tinted glasses

manufactured by it falls under clause (c) of sub-section (1) of Section

3A namely residuary clause and as such tax is to be levied @ 10%;

whereas revenue is contending that it would fall under Entry No.4 of

the notification No.5784 dated 07.09.1981 which Notification has

been issued in exercise of the power conferred under clause(d) of

Sub-section (1) of Section 3A of the Act. It is in this background, the

rival contentions requires to be examined and it would be apt and

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appropriate to extract Section 3A of U.P. Trade Tax Act, 1948. It

reads as under:

“Section 3-A: Rates of tax

(1) Except as provided in Section 3-D, the tax payable by a

dealer under this Act shall be levied:--

(a) on the turnover in respect of "declared goods", at the

point of sale to the consumer at the maximum rate for

the time being specified in Section 15 of the Central

Sales Tax Act, 1956, or where the State Government, by

notification, declares any other single point or a lesser

rate, at such other point or at such lesser rate;

(b) the turnover in respect of such goods), other than the

goods referred to in clause (a), at such point and at such

rate, not exceeding fifty per cent, as the State

Government may, by notification, declare, and different

points and different rates may be declared in respect of

different goods

(c) on the turnover in respect of goods, other than those

referred to in clause (a) or clause (b), at the point of sale

by manufacturer or importer at the rate of ten percent.

(2) Every notification made under this section shall, as soon

as may be after it is made, be laid before each House of the

State Legislature, while it is in session, for a total period of

not less than fourteen days, extending in its one session or

more than one successive sessions; and shall, unless some

later date is appointed, take effect from the date of its

publication in the Gazette subject to such modifications or

annulments as the two Houses of the Legislature may during

the said period agree to make, so, however, that any such

modification or annulment shall be without prejudice to the

validity of anything previously done thereunder except that

any imposition, assessment, levy or collection of tax or

penalty shall be subject to the said modification or annulment.

(3) Where the State Government has declared any point or

rate at which the tax payable by a dealer under the Act be

levied under clause (b), clause (c), clause (c-1), clause (d) or

clause (e) of sub-section (1) as existed immediately before the

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commencement of the Uttar Pradesh Trade Tax (Second

Amendment) Act, 2000 and such declaration in force on such

commencement, such rate or point of tax shall continue to be

in force after such commencement, until modified or

rescinded.”

14. A perusal of sub-section (1) of Section 3-A would indicate that

the tax payable by the dealer under the Act shall be levied under

clause (a) on the turnover in respect of "declared goods", at the point

of sale to the consumer at the maximum rate for the time being

specified in Section 15 of the Central Sales Tax Act, 1956, or where

the State Government, by notification, declares any other single point

or a lesser rate, at such other point or at such lesser rate; under clause

(b) on the turnover in respect of such goods, other than the goods

referred to in clause (a), at such point and at such rate, not exceeding

fifty per cent, as the State Government may, by notification, declare,

and different points and different rates may be declared in respect of

different goods; under clause (c) on the turnover in respect of goods,

other than those referred to in clause (a) or clause (b), at the point of

sale by manufacturer or importer @10 percent.

15. The Notification No. ST-2-5784/X-10(1)-80 dated 7/9/1981

issued in exercise of the power conferred under clause(d) of Sub-

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section (1) of Section 3A of the Act specifies that under Entry No.

4 reads as under:

“4. All goods and glass wares made of glass but not

including plain glass panes optical lenses, hurricane

lantern, chimneys bottles and phials, glass beads,

clinical syringes, Therma Meters and scientific

apparatus and instruments made of glass.”

Thus, on a plain reading of the above entry it would leave no manner

of doubt that all goods and wares made of glass would fall within the

definition of the said entry or in other words, all goods and wares

made of glass would fall within Entry No.IV of the aforesaid

notification and thus attract a duty @15 %. The exclusion of plain

glass panes, optical lens as indicated therein would fall within the

residuary clause attracting 10 % tax.

16. In the aforesaid background, it requires to be examined in the

facts that has unfolded in the present case as to whether the tinted

glass sheet is to be treated as equivalent to plain glass sheets/panes or

not.

17. Tracing the history of the entry can be noticed as under:

(i) Glass wares 1.4.48 to 31.3.56

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(ii) Glasswares other than

Hurricane lantern, chimneys,

optical lenses and bottles.

1.4.56 to 19.5.76

(iii) All the goods and wares made

of glass but not including plain

glass, panes, optical lenses,

Hurricane lantern, chimneys,

bottles and phials glass beads,

clinical syringes, thermometer

made of glass.

(iv) All the goods and wares made

of glass but not including plain

glass, panes, opticals lenses,

Hurricane lantern, chimneys,

bottles and phials glass beads,

clinical syringes, thermometer

and scientific apparatus and

instruments made of glass.

7.9.91 till date

There is no dispute to the fact that earlier the entry was

“glassware” alone and the said entry was subsequently amended by

adding word “all goods” within its scope and ambit and this widening

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of the expression would indicate the intention of the legislature to

include all goods and wares of glass unless excluded, in other words

the intention of the legislature is explicitly clear to include in its ambit

any goods and wares made of glass. The meaning of the word “of”

also acquires the significance. The intention of the legislature of using

this expression “of” would reveal the purpose and it would be the

endeavour of the court to put itself in the chair of the legislature and

presume that the legislature was reasonable as held by this Court in

Mauri Yeast India Private Limited Vs. State of U.P. (2008) SCC 680

wherein the expression “chemicals of all kinds” was interpreted. It is

well settled principle that the word used in a statute must take its

colour from the object it seeks to achieve and also by considering the

words with which it is associated in the context.

18. In the matter of Geep Flashlight Industries Ltd. Vs. Union of

India and others (2002) 9 SCC 545, this Court was of the view that

canon of construction commands that commodity commonly known

in the market would be the basis for determination of its entry. It came

to be further held:

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“5. By a catena of decisions it is settled law that an

expression used in a taxing statute for describing a

commodity must be given the meaning which is

generally given to it by a person in the trade or in the

market of commodities and should be interpreted in the

sense the person conversant with the subject-matter of

the statute and dealing with it would attribute to it.

(See Ramavatar Budhaiprasad v. Asstt. STO [(1961) 12

STC 286 : AIR 1961 SC 1325] .) The High Court

approached the matter from this angle and reached the

correct conclusion that the expression “articles made of

plastics” used in Tariff Item 15-A(2) does not cover

such articles which are not directly made from the

material indicated in sub-item (1) but are made from

articles made out of such material.”

19. Reiterating the position with regard to interpretation of

provisions in fiscal statues and adherence to the principle of popular

meaning as understood in their common and popular ex-parlance in

the matter of State of Jharkhand and others Vs. LA Opala RG

Limited- (2014) 15 SCC 136 it came to be held:

“22. It is a settled law that in taxing statutes the terms and

expressions must be seen in their common and popular

parlance and not be attributed their scientific or technical

meanings. In common parlance, the two words “type” and

“form” are not of the same import. According to

the Oxford Dictionary, whereas the meaning of the

expression “types” is “kind, class, breed, group, family,

genus”; the meaning of the word “form” is “visible shape

or configuration of something” or the “style, design, and

arrangement in an artistic work as distinct from its

content”. Similarly, Macmillan Dictionary defines “type”

as “a group of people or things with similar qualities or

features that make them different from other groups” and

“form” as “the particular way in which something appears

or exists or a shape of someone or something”. Therefore,

“types” are based on the broad nature of the item intended

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to be classified and in terms of “forms”, the distinguishable

feature is the particular way in which the items exist. An

example could be the item “wax”. The types of wax would

include animal, vegetable, petroleum, mineral or synthetic

wax whereas the form of wax could be candles, lubricant

wax, sealing wax, etc.”

20. In the instant case, assessee has placed reliance on the full

bench Judgment of the High Court of Madhya Pradesh in the matter

of Commissioner of Sales Tax, Madhya Pradesh Vs. Triveni Sheet

Glass Limited and others, (1990) 76 STC 308 (Full Bench)=1989

SCC online MP 346 whereunder the issue relating to entry of glass

sheets had come up for consideration namely whether glass sheets

falls within the ambit of the expression “goods made of glass and

glassware”. This judgment which was relied upon under the

impugned order came to be distinguished as under:

“Then, reliance was placed on CST, Madhya Pradesh Vs

Triveni Sheet Glass Works Limited (1990), 76 STC 308, a

full bench decision of the Madhya Pradesh High Court.

Therein the question was with regard to the taxability of

glass sheets. The relevant portion of the Entry was "goods

made of glass and glasswares". The full bench in para 7

noticed that undoubtedly there is distinction between glass,

goods or articles made of glass. After doing so, it quoted a

passage from the order of the Board wherein it was held by

the Board that glass sheet, is glass simplicitor. Glass sheet

is, therefore, according to the Full Bench a primary

product which can be used for producing the goods or

articles made of glass and it cannot be equivated with

goods or articles made of glass. The Full Bench expressed

its dissent with the decision reported in Commissioner of

Sales Tax, Madhya Pradesh, Nagpur v. Mohanlal Ramkisan

Nathani (1955) 6 STC 136 and Tribuwandas Golabchand

19

and Brothers, Nagpur V. State of Maharashtra (1965) 16

STC 452 (Bombay) and CST Vs Bombay Glasshouse

(1986) 63 STC 350 (M.P.). The Full Bench was of the

opinion that in these decisions, it was not taken into

account that the glass sheet is common parlance is glass

simplicitor" and glass sheet is a primary product used for

producing articles of goods made of glass. Glass sheet is a

primary product." This distinguishes the case from the

facts of the present case.”

21. This Court in Atul Glass industries Pvt. Ltd. Vs. Collector of

Central Excise, (1986) 63 STC 322 has held the test commonly

applied to determine whether an article after subjecting to

manufacturing processes becomes a different article or remains the

same is: how is the product identified by the class or section of the

people dealing with or using such product. It came to be held:

“8. The test commonly applied to such cases is: How is

the product identified by the class or section of people

dealing with or using the product? That is a test which is

attracted whenever the statute does not contain any

definition. Porritts and Spencer (Asia) Ltd. v. State of

Haryana [(1979) 1 SCC 82 : 1979 SCC (Tax) 38 : AIR

1979 SC 300 : (1978) 42 STC 433] . It is generally by

its functional character that a product is so identified.

In CST, U.P. v. Macneill & Barry Ltd., Kanpur [(1986)

1 SCC 23 : 1986 SCC (Tax) 155] this Court expressed

the view that ammonia paper and ferro paper, used for

obtaining prints and sketches of site plans could not be

described as paper as that word was used in common

parlance. On the same basis the Orissa High Court held

in State of Orissa v. Gestetner

Duplicators (P) Ltd. [(1974) 33 STC 333 (Ori)] that

stencil paper could not be classified as paper for the

purposes of the Orissa Sales Tax Act. It is a matter of

common experience that the identity of an article is

associated with its primary function. It is only logical

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that it should be so. When a consumer buys an article,

he buys it because it performs a specific function for

him. There is a mental association in the mind of the

consumer between the article and the need it supplies in

his life. It is the functional character of the article which

identifies it in his mind. In the case of a glass mirror, the

consumer recalls primarily the reflective function of the

article more than anything else. It is a mirror, an article

which reflects images. It is referred to as a glass mirror

only because the word glass is descriptive of the mirror

in that glass has been used as a medium for

manufacturing the mirror. The basic or fundamental

character of the article lies in its being a mirror. It was

observed by this Court in Delhi Cloth and General Mills

Co. Ltd. v. State of Rajasthan [(1980) 4 SCC 71 : 1980

SCC (Tax) 548 : AIR 1980 SC 1552 : (1980) 3 SCR

1109] which was a case under the sales tax law: (SCC

pp. 75-76, para 7)

“... In determining the meaning or connotation of

words and expressions describing an article or

commodity the turnover of which is taxed in a sales tax

enactment, if there is one principle fairly well settled it

is that the words or expressions must be construed in the

sense in which they are understood in the trade, by the

dealer and the consumer. It is they who are concerned

with it, and it is the sense in which they understand it

that constitutes the definitive index of the legislative

intention when the statute was enacted.”

That was also the view expressed in Geep Flashlight

Industries Ltd. v. Union of India [(1985) 22 ELT 3] .

Where the goods are not marketable that principle of

construction is not attracted: Indian Aluminium Cables

Ltd. v. Union of India [(1985) 3 SCC 284 : 1985 SCC

(Tax) 383] . The question whether thermometers,

lactometers, syringes, eyewash glasses and measuring

glasses could be described as “glassware” for the

purpose of the Orissa Sales Tax Act, 1947 was

answered by the Orissa High Court in State of

Orissa v Janta Medical Stores [(1976) 37 STC 33 (Ori)]

in the negative. To the same effect is the decision of this

Court in Indo International Industries v. CST, Uttar

Pradesh [(1981) 2 SCC 528 : 1981 SCC (Tax) 130 :

AIR 1981 SC 1079 : (1981) 3 SCR 294] where

hypodermic clinical syringes were regarded as falling

21

more accurately under the entry relating to “hospital

equipment and apparatus” rather than under the entry

which related to “glasswares” in the UP Sales Tax Act.”

In the aforesaid Judgment, the question that arose for consideration

was under what tariff item ‘glass mirror’ would fall, and glass screens

fitted in motor vehicles as wind screens, rear screens, window screens

would fall under which competing tariff item. Adjudicating this

question, this Court held that glass sheet after successive stage of

processing undergoes a complete transformation to become a glass

mirror and a different commercial product with a reflective surface. It

was further held, after this process glass sheet is reduced to a mere

medium and if any part of the coating is scratched and removed that

particular area of the glass mirror will cease to be a glass mirror. It

was further held that said commodity is referred to as a glass mirror

only because the word “glass” which is descriptive of the mirror and

basis or fundamental character of the article lies in its being a mirror

cannot be regarded as glass. Thus, the legislative intent is clear as

regards the product, namely, the primary product is not coupled with

goods and articles made of that primary product. Thus, it would

emerge from the test commonly applied to determine whether an

article after subjecting it to manufacturing process becomes a

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different article or remains same and as held in the aforesaid

Judgment it will have to be examined as to how the product is

identified by the class or section of people dealing with or using the

product. This test acquires significance particularly when the statue

does not contain any definition and by its functional character a

product is so identified.

22. In fact, the High Court has noticed this fact and has recorded the

following finding:

“The said issue can be resolved from the point of view

as to how the persons who are in the business understands

the meaning of plain glass sheets in commercial words, as

noticed by the tribunal, plain glass sheets means colourless

glass or having a colour of water. The tribunal has noticed

that a dealer of glass sheet, is not required to exhibit all

kinds of sheet glass including coloured one when a

customer demands plain glass sheet. Unless a coloured

glass is asked for, a dealer exhibits the (uncoloured) plain

glass sheet. The said finding of the tribunals essentially a

finding of fact. In common parlance also, in window and

doors, plain glass sheet i.e. uncoloured glass sheets are

used generally These glass sheets are also used as table

top, in showcase and also as racks in Almirah. It may be

noted that only plain glass sheets which is not coloured is

used generally.”

23. Now, we proceed to note the simple dictionary meaning

assigned with regard to “plain glass panes” in order to examine the

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claim of assessee to extend the meaning assigned to “plain glass

sheet” to “tinted glass sheet.”

PLAIN:

Webster’s Encyclopaedic Unabridged Dictionary 1989

Edition defines “Plain" as-

“Plain (plan) adj. 1. clear to distinct to the eye or ear: a

plain trail to the river, to stand in plain view. 2. one's

meaning plain, a dislike of the subject that was plain. 3.

conveying the meaning clearly and simply: easily

understood; plain 4. downright; sheer; utter; plain folly,

plain stupidly. 5. free from ambiguity or evasion; candid;

outspoken: the plain truth of the matter. 6. without special

pretension, superiority elegance, etc.; ordinary: plain

people. 7. not beautiful: physically unattractive or

undistinguished: a plain face; a childhood fear that she

would be plain. 8. without intricates or difficulties. 9.

ordinary, simple, or unostentatious: Although she was a

duchess, her manners were attractively plain. 10. with little

or no embellishment, decoration, or enhancing elaboration:

a plain blue suit. 11. without a pattern, figure, or device: a

plain fabric. 12. not rich, highly seasoned, or elaborately

prepared, as food: plain, fresh, substantial fare; a plain diet.

13, flat or level: plain country. 14. unobstructed, clear or

open, as ground, a space, etc. 15. Cards, being other than a

face card or a trump. - adv. 16. clearly and simply: He's

just plain stupid - n. 17. an area of and not significantly

higher than adjacent areas and with relatively minor

difference in elevation, commonly less than 500 feet,

within the area. 18. the Plain, Fr. Hist. (in the National

Assembly) the loosely organised party of moderate

republicans: so called because its members occupied the

lowest seats or benches. Cf. mountain (def. 4). 19. The

plains. See Great Plains. [ME OF <L plan (us) flat, level,

plan (um) flat country)- plan ly, adv. - plain ness, n.

In the Compact Oxford Reference Dictionary

audited by Catherine Soanes the word "Plain" means "1.

simple or ordinary 2. without a pattern 3. unmarked 4. easy

to see or understand.........."

In the Dictionary by Webster the word "plain" means

as follows:

24

"(plein) 1. adj. easy to see or understand simple, not

embellished or complicated absolute, complete, plain

madness (of food) unelaborated, not having unusual or

spicy ingredients bluntly frank unsophisticated lacking

physical beauty, but not ugly 2.n. a large expanse of level,

open country 3. adv. Manifestly, it's just plain wrong

clearly, candidly, she told him plain [KO F. fr.L]”

PANE:

“Webster's Dictionary defines “Pane" as-

Pane - a single sheet of glass in a window, greenhouse etc.

a division of a window etc, containing such a sheet of glass

in a frame a flat side or edge of a many-sided object."

“Concise Oxford Dictionary defines “Pane" as - a single

sheet of glass in a window or door. 2. A rectangular

division of a chequered pattern etc..”

24. A plain reading of the above definitions would not detain us

for too long to brush aside the contentions of the learned senior

counsel appearing for the appellant-assessee, inasmuch as, “panes”

means glass sheets in small sizes used in doors and windows and they

cannot be treated as glass sheets as panes or made out of glass sheets

by cutting it into different sizes.

25. Yet another contention was raised that commodity remains the

same even after the manufacturing process and applying the said

principle to the product on hand, namely tinted glass sheets would

continue to be the genus of the species namely “plain glass panes” by

relying upon Gujarat Steel Tubes Ltd. V. State of Kerala (1989) 3

25

SCC 127 and Maqsood Mohammad Vs. State of Uttar Pradesh and

Another (1978) 41 STC 324. Both the Judgments are distinguishable

on facts, and reasoning adopted under the impugned order is just and

proper for reasons more than one; firstly in Gujarat Steel Tubes matter

(supra) it was noticed that the steel tube was galvanized and by virtue

of the same, it did not cease to be a steel tube inasmuch as its

structure or its function is not altered and it remained as a steel tube.

Whereas in the instant case the tinted glass sheet during the process of

manufacture has undergone a change and as noticed by the authorities

it has more radiation absorption capacity and is also different in its

transparency and density than a plain glass sheet or in other words the

commodity did not remain the same after the manufacturing process.

Secondly, in Maqsood Mohammad matter (supra) it was noticed that

after the manufacturing process the product “kala namak” remained as

an edible salt or in other words it was a species of salt and as such it

was held exempted from tax and cannot be taxed under Section 3A of

U.P. Sales Tax Act, 1948. The analogy noted hereinabove to

distinguish Gujarat Steel Tubes Limited (supra) is squarely applicable

to distinguish the principles enunciated in Maqsood Mohammad case,

which was on facts obtained therein.

26

26. When the assessee is contending that an item/product falls

under the residuary category, necessarily the burden is on the assessee

to prove the said fact and in the instant case, the business premises of

the appellant was inspected by Special Investigation Branch of the

Department and it was revealed that “tinted glass sheet” was being

manufactured through a different process. The process so adopted has

been succinctly explained in the Assessment Order to the following

effect:

“An intensive inquiry XXX Rs. 9,47,28, 446.00. In

the inquiry held by Allahabad Unit, this fact has

come to the light that the tinted coloured glass is

manufactured by the trader in a separate unit and

the raw material used in its manufacture is also

different from the raw material used in the

manufacture of sheet glass. That is the raw

materials used in the manufacture of tinted

coloured glass are cobalt oxide, carbon oxide, iron

oxide etc. besides those used in the manufacture of

sheet glass. A specific process is adopted for its

manufacturing. The transparency density of tinted

coloured glass is different from the simple glass

surface. The solar radiation absorption capacity of

tinted coloured glass is more than that of the simple

sheet glass. In ordinary common parlance of the

market the tinted glass is not understood as sheet

glass. Therefore, the plain sheet of tinted coloured

glass cannot be deemed as sheet glass. After

apprising XXX tax liability shall be determined.”

27

In this background, when the contention of Mr. Bagaria, learned

senior counsel, appearing for the appellant contending that “plain

glass panes” would include ‘tinted glass sheet’ is examined, same has

to be rejected as the general meaning of “glassware” could not have

been attached to ‘tinted glass’ sheet or the exclusion would have been

specific in Entry (IV) itself. In our considered opinion, the expression

“all the goods and wares made of glass” occurring in Notification

dated:07.09.1981 must be taken to refer to all articles of glass except

those specifically excluded in the entry itself.

27. It would not be out of context or in other words it would be

apposite to refer to the judgment of this Court in the matter of

Ramavatar Budhaiprasad Etc. Vs. Assistant Sales Tax Officer -

(1962) 1 SCR 279 wherein challenge to the imposition of sales tax on

beetle leaves by the revenue came to be upheld by arriving at a

conclusion that the legislature by using two distinct and different

items that is item 6 “vegetables” item 36 “beetle leaves” had indicated

its intention. It was held that the word “vegetables” in taxing statues is

to be understood as in common parlance that is denoting class of

28

vegetables which are grown in a kitchen garden or in a farm and are

used for the table. It was further held:

“3. The Schedule was amended …………... 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 every day us 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; Craies on Statute Law, p.153 (5

th

Edn.). It was so held………………. .

28. This Court examined in M/s. Indo International Industries vs

Commissioner of Sales Tax, Uttar Pradesh (1981) 2 SCC 528 almost

similar issue namely whether hypodermic clinical syringes could be

regarded as “glass ware” under Entry 39 of First Schedule of UP Sales

Tax Act, 1948 and negatived the plea of the assessee by opining that

in taxing statues, words and phrases must be construed as understood

in popular or commercial parlance and not technically. It came to be

further held:

“5. Having regard to the aforesaid well settled test the

question is whether clinical syringes could be regarded as

“glassware” falling within Entry 39 of the First Schedule

to the Act? It is true that the dictionary meaning of the

expression “glassware” is “articles made of glass”

(see Webster's New World Dictionary). However, in

commercial sense glass ware would never comprise

articles like clinical syringes, thermometers, lactometers,

and the like which have specialised significance and utility.

In popular or commercial parlance a general merchant

29

dealing in “glassware” does not ordinarily deal in articles

like clinical syringes, thermometers, lactometers, etc.

which articles though made of glass, are normally

available in medical stores or with the manufacturers

thereof like the assessee. It is equally unlikely that

consumer would ask for such articles from a glass ware

shop. In popular sense when one talks of glass ware such

specialised articles like clinical syringes, thermometers,

lactometers and the like do not come up to one's mind.

Applying the aforesaid test, therefore, we are clearly of the

view that the clinical syringes which the assessee

manufactures and sells cannot be considered as “glass

ware” falling within Entry 39 of the First Schedule of the

Act.”

29. In the aforesaid background, we are of the considered view

that neither the dictionary meaning nor the common parlance theory

would come to the rescue of the appellant. The arguments canvassed

by the learned senior counsel with regard to flat transparent sheet

glass as indicated in the Indian Standards Specification has also

received the attention of the High Court and has been dealt with under

the impugned order and distinguished it on facts in favour of the

revenue, and rightly so, for the reasons indicated thereunder which we

are of the considered view is in tune with the settled principles of law

noted hereinabove and thereby impugned order does not call for our

interference.

30

30. There is no vagueness in the notification dated 07.09.1981 and

the entry No. 4 is clear and unambiguous namely it has brought within

the sweep “all goods and wares made of glass” exigible to tax but not

including “plain glass panes” and the exemption being the creation of

the statute itself, it has to be construed strictly and even if there is any

vagueness in the exemption clause must go to the benefit of the

revenue. [(2018) 9 SCC 1 paras 36 to 38]

31. For the reasons indicated hereinabove, we are of the

considered view that the impugned judgments would not call for

interference and accordingly the appeals are dismissed. The notice for

reassessment dated 08.02.2001 issued in Civil Appeal No.5914 of

2023 (Special Leave Petition(c) No.29516 of 2013) for the assessment

years 1992-93 to 1996-97 is upheld. No order as to costs.

.……………………….J.

(S. Ravindra Bhat)

…………………..……J.

(Aravind Kumar)

New Delhi,

October 09, 2023