COMMISSIONER OF SALES TAX M P Vs. SAMRATHMAL DHOOLCHAND
LAWS(MPH)-1969-12-5
HIGH COURT OF MADHYA PRADESH
Decided on December 23,1969

COMMISSIONER OF SALES TAX M P Appellant
VERSUS
Samrathmal Dhoolchand Respondents

JUDGEMENT

PANDEY, J. - (1.) AT the instance of the Commissioner of Sales Tax, the Tribunal has, acting under section 44 of the Madhya Pradesh General Sales Tax Act, 1958, referred to this court for its opinion the following question of law : " Whether coal ash is coal and comes under entry No. 1 of Part III of Schedule II to the Act or whether it comes under Part VI of Schedule II to the Act ?"
(2.) THE material facts giving rise to this reference are these. The assessee is a dealer and carries on the business of selling numerous articles including coal ash. During the period 9th November, 1961, to 28th October, 1962, it was found that the assessee had sold coal ash worth Rs. 33,201. The departmental authorities declined to regard coal ash as coal within the meaning of item 1 of Part III of Schedule II (taxable at 2 per cent.) and assessed the sales on the basis that the commodity was included in Part VI of that Schedule (taxable at 5 per cent. ). On further appeal to the Tribunal, it took a different view and then, at the instance of the Commissioner of Sales Tax, this reference was made. Having heard the counsel, we have formed the opinion that the expression "coal including coke in all its forms" under entry 1 of Part III of Schedule II includes coal ash. In Sales Tax Commissioner, Indore v. M/s. J. Singh ([1967] 19 S. T. C. 469 (S. C.); A. I. R. 1967 S. C. 1454 at p. 1457.), their Lordships construed the meaning of that word in the aforesaid Part III of Schedule II and observed : " The result emerging from these decisions is that while construing the word 'coal' in entry 1 of Part III of Schedule II the test that would be applied is what would be the meaning which persons dealing with coal and consumers purchasing it as fuel would give to that word. A sales tax statute, being one levying a tax on goods, must, in the absence of a technical term or a term of science or art, be presumed to have used an ordinary term as coal according to the meaning ascribed to it in common parlance. Viewed from that angle both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include 'charcoal' in the term 'coal'. It is only when the question of the kind or variety of coal would arise that a distinction would be made between coal and charcoal; otherwise, both of them would in ordinary parlance as also in their commercial sense be spoken as coal. "
(3.) IT is accepted before us that coal ash is commercially called cinder, a commodity which is expressly included in the dictionary meaning of coal. According to Webster, cinder is a piece of partly burnt coal, capable of further burning without flame. Another meaning given by Webster is that it is a partly burnt combustible, which no longer gives flame. That is the meaning generally found in all other dictionaries. It is also, like coal, used as fuel, though of a low grade. That being so, as understood in the ordinary and commercial sense, the entry would include coal ash. We may also add that if coal, charcoal and firewood, all used as fuel, are taxable at 2 per cent. , it does not appear reasonable and could not have been intended by the Legislature that coal ash or cinder, which is also used as fuel of a low grade, should be taxed at a higher rate.;


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