Fazl, Ali, J. - (1.) This appeal by certificate raises a short question of law as to whether or not hume pipes which are the subject-matter of the present case amount to "sanitary fittings" as contemplated by a notification issued by the Government under the U.P. Sales Tax Act. The respondent is a dealer engaged in the manufacture and supply of hume pipes. The pipes manufactured by the respondent also manufactures high quality and high pressure pipes like prestressed concrete pipes for water supply, R.C.C. pressure pipes, penstock pipes used in hydro-electric projects etc. The respondent was a supplier of pipes to various Governmental Departments both Central and State, such as Irrigation, Public Works, Local Self Government Engineering, Railways and Ministry of Petroleum etc. It appears that a dispute arose between the respondent and the Sales Tax Department with respect to the rate of tax for sale of pipes manufactured by the respondent for the assessment years 1962-63, 1963-64 and 1964-65. According to the notification issued by the Government in pursuance of the U.P. Sales Tax Act, items classed as "sanitary fittings" were to be taxed at 7% instead of 2 percent. The Sales Tax Officer treated the hume pipes supplied by the respondent as "sanitary fittings" and imposed Sales Tax at the rate of 7%. Instead of going an appeal to the Assistant Commissioner (Judicial) the respondent filed a writ petition in the High Court assailing the order of the Sales Tax Officer on the ground that the hume pipes manufactured by the assessee could not by any stretch of imagination, be construed to be "sanitary fittings", nor were they ever used as such. The High Court, after hearing counsel for the parties and after perusing the materials on the record, accepted the plea of the respondent and held that the hume pipes could not be treated as "sanitary fittings" and the Sales Tax Officer was, therefore, not entitled to levy tax at the rate of 7%. The High Court accordingly quashed the assessments made by the Sales Tax Officer and hence this appeal by the Department after obtaining a certificate from the High Court.
(2.) In our opinion, the facts of this appeal lie within a very narrow compass. The only point which arises for consideration is whether or not the hume pipes manufactured by the respondent could be said to the "sanitary fittings". The notification dated September 1, 1966 amended the existing entry as "sanitary goods and fittings" but in these assessment years we are concerned with the entry as it stood unamended. The Sales Tax Officer does not appear to have applied his mind at all to the reasons as to how and why hume pipes could be treated as sanitary fittings. Apart from his ipse dixit that hume pipes amounted to sanitary fittings, he based his order on no other material. The respondent had filed an application before the Sales Tax Officer wherein he had clearly alleged substantial facts showing that the hume pipes could never be used as "sanitary fittings". It is only the G.I. pipes or other kinds of pipes which are used in lavatories, urinals and bath-rooms which can be termed as "sanitary fittings". Neither the contract nor the tender by the respondent show the exact use for which the hume pipes were meant. On the other hand the respondent had produced a large catena of materials in the shape of certificates from technical experts, Engineers and highly reputed dealers in sanitary fittings to show that hume pipes are never used as sanitary fittings. In spite of these materials, the State, when it filed its counter-affidavit before the High Court, did not controvert any of the facts mentioned by the respondent, vide paragraphs 4,5 and 6 of the counter-affidavit filed before the High Court. The materials consist of certificates by Local Self Government Engineering Department, U.P., to show that the pipes supplied by the respondent were not used as "sanitary fittings". This certificate appears at page No. 34 of the Paper Book and shows that R.C.C. Pipes purchased from the respondent had not been used as sanitary fittings by the L.S.G.E. Department. This certificate is signed by the Executive Engineer on behalf of the Chief Engineer of the Department. From pp. 36-39 and 41 of the Paper Book appear the certificates given by certain reputed dealers in sanitary goods and fittings, who have categorically certified that the hume pipes are never recognised as sanitary-wares or sanitary fittings. As against this, the State produced no materials to controvert these facts, which could not be brushed aside. At page No. 40 there is a certificate by the Ex. Special Engineer, Bombay Municipal Corporation and Ex. Director, Central Public Health Engineering Research Institute, Nagpur, in which he has clearly observed that sanitary-wares and sanitary fittings are applicable to fittings used in the household for W. Cs., wash-basins, taps, sinks etc. and, therefore, hume and R.C.C. pipes cannot be recognised sanitary-wares or sanitary fittings. As against this, the State produced no material to controvert these facts:
(3.) It is well settled that when we are dealing with the articles used for business purposes, the terms must be interpreted in a purely commercial sense. In Ramavatar Budhaiprasad etc. v. Assistant Sales Tax Officer, Akola (1962) 1 SCR 279 at page No. 282 this Court, while construing the import of the word "vegetables", observed as follows: "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 use 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;" To the same effect is a decision of the Exchequer Court of Canada in The King v. Planters Nut and Chocolate Company Limited 1951 Canada LR 122 at page No. 126 where the Court observed as follows: "The words "fruit" and "vegetable" are not defined in the Act ans so far as I am aware they are not defined in any other Act in pari materia. They are ordinary words in every-day use and are therefore to be constured according to their popular sense." In these circumstances, therefore, we have to construe the expression "sanitary fittings" in the popular sense of the term as it is used in our every-day life. Thus construing, it would be manifest that there could be no question of use of R.C.C. or hume pipes which are generally laid underground and are extremely heavy, for the purpose of use in lavatories, urinals or bath-rooms etc. By "sanitary fittings" we only understand such pipes or materials as are used in lavatories, urinals or bathrooms of private houses or public buildings. Even where a hume pipe is used for carrying the excreted material from the commode to the septic tank that may be treated as sanitary fittings. In the instant case as there was absolutely no material before the Sales Tax Officer to show that any of the hume pipes manufactured and sold by the respondent were meant for use in lavatories, urinals or bathrooms and in fact the material was used entirely the other way, the Sales Tax Officer was not at all justified in holding that they were sanitary fittings. Of course, we must make it clear that if at any time the material produced before the Sales Tax Authorities establishes that in a given case the hume pipes were meant for use in a bathrooms, lavatory, urinal etc., then the notification of the Government would be attracted and the assessee must be liable to be taxed at the rate of 7%.;