Bharati Sapru, J. - (1.) HEARD Sri S.D. Singh assisted by Sri Nishant Mishra learned counsel for the revisionist and the learned standing counsel Sri K.M. Sahai. As common questions of law involved are in all these revisions, they are being heard together and are being decided by a common judgment as jointly agreed by the learned counsel for the parties, treating the Trade Tax Revision no. 331 of 2007 as the leading one. The Trade Tax Revision no.331 of 2007 has been filed by the assessee under section 11 of the U.P. Trade Tax Act for the assessment year 1998-99 (U.P.) being aggrieved by an order passed by the Tribunal dated 21.2.2007. The questions of law referred in the revision are as under: "A. Whether Biological/Scientific Instruments and apparatus manufactured by the applicant are exempted by virtue of notification no. 166 dated 10.4.2000 or they are liable to be taxed as unclassified goods? B. Whether the question of classification of the goods can be decided without even considering the certificates issued by the persons dealing with them i.e. as per the trade understanding, commercial and technical practice and usage in view of the Hon'ble Apex Court judgment in the cases of Indcon Structures (P) Ltd. versus C.C.E. (supra) and Stefab (I) Ltd. versus Commercial of Central Excise, Delhi (supra). C. Whether the Tribunal was legally justified in not considering the certificates issued the various institutes such as National Institute of Immunology, National Institute of Communicable Diseases, International Centre for Genetic Engineering and Bio-Technology, W.H.O. etc. which are either controlled by the Government or they are of world repute only on the ground that they are the customers of the applicant? D. Whether the Tribunal was legally justified in holding that the goods manufactured by the applicant can be called ''Biological Instruments' but the same cannot be treated as ''Biology Instruments' in view of the fact that the term ''Biological' means nothing but something relating to Biology? E. Whether the Tribunal as well as the lower authorities were legally justified in rejecting the claim of exemption of tax on the sales made to International Central For Genetic Engineering and Bio- technology, which is an international organization of United Nations Industrial Development Organisation as evident from the notification dated 12.4.1988 issued by the Ministry of External Affairs, published in Extra-Ordinary Gazette of India dated 20th April, 1988, which is exempt in view of the notification no. 7037 dated 30.1.1985, read with the provisions of section 8-2 A of the Central Sales Tax Act. F. Whether in view of the facts and circumstances of the case, the sales made by the applicant at concessional rate of tax against forms 3D/D to various departments of State/Central Government can be rejected? G. Whether the applicant can be penalized for the wrong done by the buyers/purchasers in view of the fact that the applicant received form 3D/D in bonafide belief presuming the said buyers to be departments of State/Central Government? H. Whether the demand of interest by treating the demand created and confirmed by the Tribunal as well as the lower authorities below as admitted tax liability is legally justified?" The issue involved in the present revision as well as all other revisions is with regard to the applicability of the notification no.KA.NI.-2-1166/XI-9 (231)/94 U.P. Act no. 15/48-Order-2000 dated 10.4.2000. The relevant part of the notification in English reads as under: "Maps, educational charts, instrument boxes, educational globes and scientific, mathematical, survey, mechanical drawing and biology instruments and apparatus." The Hindi version of the said notification is reproduced as under: "NAKSHO, SHAIKSHIK REKHA CHITRA (CHART), UPKARANIKA BOX SHAIKSHIK GLOBE AUR VAIGHYANIK, GANITIYA, SARVEKSHAN, YANTRIK UTTAK (MECHANICAL DRAWING) AUR JEEVA VIGHYAN SAMBANDIT UPKARANIKIYA AUR SADHITRA" The revisionist assessee is manufacturer of the following goods: (i) biological safety cabinets; (ii) Laminar flow cabinets (iii) Fume Hoods (iv) Air Showers (v) Air Curtains (vi) Operation Theatre Modules (vii) Air Conditioner Modules (viii) Clean Tents (ix) Clean Room Garments (x) Pass Boxes (xi) Air Handling Filter etc. The facts of the case are that the revisionist assessee is a proprietorship firm, which is engaged in the manufacture and sales of various ''scientific and biological equipments/instruments', which are used mainly by bio-scientists for research purposes, for which the revisionist assessee is duly registered under the provisions of U.P. Trade Tax Act as well as the Central Sales Tax Act. The revisionist assessee was issued a notice by the assessing authority and the assessee appeared before the assessing authority and claimed that the goods sold by it were exempt from tax in view of the notification no. 1166 dated 10.4.2000 and also claimed relief on account of Inter-State sales made to various Government organizations and institutions against Forms 3D and D. The assessing authority, after examining the accounts and details, issued a show cause notice to the assessee proposing to make best judgment assessment on the basis of an inference that the assessee had effected sales at concessional rate of tax to various organizations against the declaration of form 3D and form D even though the said organizations were not the Government organizations and no benefits of concessional rate of tax could have been claimed by the revisionist assessee. The assessing authority further took a view that the goods sold by the assessee are not covered by the notification dated 10.4.2000 and hence the goods of the assessee were liable to be taxed at the rate of 10% as unclassified goods. The assessee had replied to the show cause notice and stated that the assessee fully covered by the notification no. 1166 dated 10.4.2006 and further stated that the assessee had charged and deposited tax at concessional rate on the Intra-State sales as well as Inter-State sales made to various Government organizations and institutions but claimed that it was exempt under the said notification also. The explanation as submitted by the assessee was not accepted by the assessing authority who passed an assessment order on 10.3.2005. The assessing authority has accepted books of accounts of the assessee as well as declared turnover but rejected the benefits of declaration Form 3-D/D on the Intra- State/inter-State sales made to the Central/State Government organizations and also treated the goods as unclassified goods, declining it to grant benefit of exemption under notification no.1166 dated 10.4.2000. Being aggrieved by the assessment order dated 10.3.2005, the revisionist assessee filed an appeal under section 9 of the U.P. Trade Tax Act before the first appellate authority resorting its claim for exemption as exempted goods under the notification dated 10.4.2000 and also claimed that the benefits of the form as issued under section 3-D/D should be given to the assessee. The first appellate authority has however also reached the conclusion that the goods sold by the assessee were not liable to be granted exemption under the notification dated 10.4.2000. Against the rejection of the first appeal by the order dated 31.12.2005, the assessee filed a second appeal before the tribunal. The assessee filed its written submission and explanation of its claim for exemption of tax. In support of its claim for exemption, the assessee, relied on the following: a) Schedule ''M' of the Drugs and Cosmetics Act; b) Certificates issued by various institutions; c) Laboratory bio-safety manual published by W.H.O. d) Various judgments of the Hon'ble Apex Court as well as this Hon'ble Court. The tribunal by his order dated 21.2.2007 dismissed the appeal filed by the assessee holding that the goods sold by the assessee are not covered by the notification no. 1166 dated 10.4.2000 and has held that the goods manufactured by the assessee are liable to be taxed as unclassified goods and the claim of the concessional rate of tax on sale to various Government organization/institutions has also been disallowed by the Tribunal. The tribunal has recorded a finding of fact that the goods manufactured by the assessee are firstly not used by the students; secondly it has recorded a finding of fact that there is vast difference between the "biology instruments" and "biological instruments"; and thirdly the goods manufactured by the assessee are "biological instruments", which are not covered under the notification no. 1166 dated 10.4.2000. Learned counsel for the assessee has argued that the order passed by the tribunal and the findings recorded by the tribunal are bad, illegal and not justified. His argument is that the tribunal has failed to appreciate the facts of the case as well as the settled law regarding the classification of the goods and therefore the same is liable to be set aside. Sri S.D. Singh learned counsel for the assessee has argued that the equipments and instruments which are being manufactured by the assessee are mainly used for providing a safe environment for scientific experiments and research work and also they are used for the safety of scientists who are engaged in micro-biological research, diagnosis laboratories, hospitals and operation theatres. Their main work is to keep scientists and researchers and their products under experimentation, safe from bacteria and pathogens. The reasons or necessity to use these equipments is to ensure that the Laboratories and research places where such experiments are undertaken do not carry or become vulnerable infections. He has argued that particularly these equipments are used for persons, who undertake research work on high risk diseases like T.B., Hepatitis B are prone to get it and are at a greater risk of being infected by agents/bacteria which they handle. Therefore the surroundings where such research work is being undertaken requires to be made free from contamination to prevent, reduce or eliminate the risk of spread of infectious disease. In order to achieve infectious free atmosphere, one of the main equipments, which is used is ''biological safety cabinet and also laminar flow cabinets. The main body of which is made of heavy duty steel, working compartment made of stainless steel with polycarbonate doors, vibration free table top, engineering controls, mechanical and electrical parts like motors, blower, filtration part, pre-filters, absolute filters with 99.97% efficiency, Germicidal ultra violate lamps to kill the bacteria, exhaust unit with filter and high temperature maintained chamber to kill virus and other agents which are vulnerable to airborne contamination and allow de-contaminated air pass through to atmosphere and instrument to check pressure gradients. Her has argued that the main purpose of these equipments is to provide bacteria/dust free i.e. bio-clean environment in the working chamber to prevent the risk of infections. The equipments, he has argued, such as air showers, operation theatre modules and clean air modules are also equipments, which are used for the research scientific and medical purposes to provide a safe environment in the advancement of research and scientific work. He has argued that the tribunal has returned the findings that all these equipments are biological instruments. They would not be covered under the notification no. 1166 dated 10.4.2000 because they are not biology instruments. He has argued that this is a misconception, which has been made by the tribunal because the word "biology" means nothing but something which is related to biology and the word ''biology' mean nothing but scientific study of living organisms. In fact he has argued that the word ''biology' and ''biological' are not different from each other and are inter-changeable. He has referred to definitions of the word ''biology' and ''biological' in various dictionaries, which are as under: Sl. Dictionary Meaning of words 1. Concise Oxford English Dictionary, Eleventh Edition Biology - (i) the scientific study of living organisms; (ii) the plants and animals of the particular area; (3) the features of a particular organism or class of organisms. Biological (i) relating to biology or living organisms.
(2.) OXFORD Advanced Learner's Encyclopedic Dictionary Biology - (i) scientific study of the life and structure of plants and animals; Biological - (i) of relating to biology; (ii) a biological experiment, reaction biological soap-powders, ie ones that clean by destroying the living organisms contained in dirt. The Encyclopedia Americana International Edition Biology - is the study of life in all of its complexities and manifestations. Webster's Third International Dictionary Biology - (i) the science of life; (ii) a branch knowledge that deals with organisms;Biological (i) of or relating to biology or to life and living things belonging to or characteristics of the processes of life; He has argued that a perusal of the above definitions show that biological is nothing but something related to biology and if the analogy as drawn by the tribunal, is given effect, then the word biology instrument and apparatus as used in the notification no. 1166 dated 10.4.2000 will have no meaning. Learned counsel has also referred the definitions of the meaning of the word ''biology' and ''biological' as referred to in the Webesters' IIIrd International Dictionary. ''Biology' is science of live that deals with living organism; deals with its relating to biology or to live and living things; He has further argued that the findings of the tribunal that the notification no.1166 dated 10.4.2000 is related to things required for the educational field alone is also misconceived for reasons that the entry also contains the word ''maps' and ''survey instruments and apparatus'. His argument is that the maps are used by the school students and they can be used for other purposes also. Similarly the use of ''survey instruments and apparatus' cannot be related or confined to the use by the school students alone as these apparatus are also used by the numerous people including geologists. He has further argued that the notification does not only include the word ''biology instruments' and apparatus, but also includes scientific instruments. Third limb of his argument is that the intention of the notification no.1166 dated 10.4.2000 is clear from the Hindi version of the notification, which classifies it as applying to "JEEVA VIGHYAN SAMBANDHIT UPKARNAYA AUR SADHITRA" which is used for study of life sciences. 0 Learned counsel for the assessee has also argued that the intention of the notification no.1166 of 10.4.2000 is further made clear from the earlier notification ST-II-2957/X-6 (17)-76 dated 20th May, 1976, in which the entry reads as hereunder: "Maps, educational charts, instrument boxes, educational globes and instruments, such as instruments used in mechanical drawing and biology, used by students." He has argued that the above noted notification dated 20.5.1976 includes in it words ''used by the students' but these words have been dropped and have not been retained in the notification under consideration dated 10.4.2000 and therefore the intention of the legislature was clear to extend the benefit of the notification to all who are assessees under the purview of the U.P. Trade Tax Act and not to confine it to ''school students' as is being interpreted by the tribunal. Learned counsel for the assessee has also argued that while coming to the conclusion that the goods manufactured by the assessee are unclassified instruments, the tribunal has also failed to consider or interpret in the proper perspective the entry as made in the notification which includes not only ''biological instruments' but also ''scientific instruments'. The next argument of the learned counsel for the assessee is that the tribunal has also failed to take into account the various certificates that were issued by the competent institutions and organizations, which were filed by the assessee to show the nature and character of the goods as these institutions and organizations were users of the goods and therefore they were the best persons to classify these equipments, as they are commonly understood as per the trade understanding, commercial and technical practice and usage. The last argument of the learned counsel for the assessee is that the tribunal has recorded a finding that the assessee did not support of his claim against Form 3D and D, which are issued by the various Government organizations and institutions, which use goods manufactured by the assessee. In support of his argument, learned counsel for the assessee has placed reliance on various judgments of the Hon'ble Apex Court and of this Court. 1 The argument of the learned counsel for the assessee is that while making interpretation of the notification, the plain language of the notification is to be read to interpret the whole. His argument is that it is well established that in a taxing statute there is no room for any intendment in the notification and it has be governed by the plain language of the notification. For this purpose, he has relied on the decision of this Court and of the Hon'ble Apex Court in the case of Hansraj versus H.H. Dave, reported in AIR 1970 SC 755. His argument is that it is well settled that in a taxing statute there is no room for any intendment but due regard must be had to the clear meaning of the words. In this case, he has argued that the word ''biology' clearly means the study of life sciences and the "biological instruments", which are being used are nothing but instruments for the study of the life sciences and therefore the language was clear. The other judgment of this Court, in support of the same argument, as relied by the assessee is in the case of Ambika Steels Pvt. Ltd., versus State of U.P. and others, reported in 2008 U.P.T.C. 455. Learned counsel for the assessee has also argued that in view of the finding recorded by the tribunal that the goods manufactured by the assessee are biological instruments and apparatus for research lab etc. As such these goods are clearly exempt from tax and for this purpose the learned counsel for the assessee has relied on the decisions in the case of Commissioner of Sales Tax versus Doon Engineering (p) Ltd. reported in 1995 U.P.T.C. 1326 and in the case of Commissioner of Sales Tax versus Super Tank India, reported in 2004 U.P.T.C. 711. Learned counsel for the assessee, in support of his argument that goods in question are "biological instruments" or "scientific instruments", while taking into consideration the common parlance test has also relied on a judgment in the case of DCL Polyester Ltd. versus Collector of Central Excise and Customs, reported in (2005) 3 SCC 455 and Collector of Central Excise versus Krishna Carbon Paper Co., reported in 1989 (1) SCC 150. Learned counsel for the assessee has argued that in case there is doubt or ambiguity in the language of the English publication of the notification, it may be resolved in favour of the assessee. He has relied in the case of Mata Badal Pandey versus Board of Revenue, U.P. reported in 1974 U.P.T.C. 570 and Commissioner of Trade Tax versus Associated Distributors Ltd. reported in (2008) 7 SCC 409. 2 In reply to the arguments as raised by the learned counsel for the assessee, learned standing counsel has argued that while construing a fiscal entry, strict construction of words must be made and in support of his argument, he has relied on a decision of the Hon'ble Apex Court in the case of State Level Committee versus M/The sole question of law referred is as under: Morgardshammar India Ltd., reported in 1996 U.P.T.C. 213 (SC). Learned standing counsel has argued that the view taken by the tribunal is justified and the words ''biological instruments' necessarily mean the ''instruments', which are used by the students. On the words ''biological instruments', he has argued, that the sense of these words is something different which cannot be clubbed and construed in the entry of notification dated 10.4.2000. His second argument is that each word must be distinctly read in the notification to take colour from the preceding words i.e. doctrine of ejusdum generis and has argued that equipments manufactured by the assessee could not be clubbed with other items as mentioned in the notification as the goods manufactured by the assessee are not similar or identical as that of the goods mentioned in the notification. The other argument is that the words ''biology instruments and apparatus' is confined to the items used in the study of science of physical life in respect of plants and animal but the goods in question are used in laboratories and research institute. The next argument of the learned standing counsel is that the assessee, in fact, himself never treated the goods in question as ''exempted goods' but treated them as ''taxable goods' under section 3-A (1)(c) of the Act as unclassified goods and the assessee charged full rate of tax as is evident from the various cash memos, which are on record and also claimed concessional rate of tax against Form 3D (U.P.) and Form D (Central). He has further argued that the plain language of the notification is to be read for interpreting and the common parlance or popular sense meaning should be preferred over the technical or scientific meaning of the items and since the goods manufactured by the assessee are not being used for the study of the biology, rather they are biological instruments, they should not be considered for grant of exemption under the said notification. 3 In reply to the submissions made by the learned standing counsel, learned counsel for the assessee has argued in rejoinder that although they had collected tax on the items earlier but it was under protest, he has argued, they can be no estoppel against the law and the assessee cannot be barred even at later stage from claiming the benefit. For this purpose, the learned counsel for the assessee has relied in the case of Share Medical Care versus Union of India reported in (2007) 4 SCC 573. I have heard learned counsel for both sides at length and have perused the material on record as well as the order passed by the tribunal. The tribunal has recorded a finding of fact that the assessee is manufacturing "biological instruments". Upon examination of the matter, it is clear that "biology" is the science, which studies all life sciences and living organisms. A biological instrument is instrument, which is used for the study of these life sciences. Whereas previously the notification no.ST-II-2957/X-6 (17)-76 dated 20.5.1976 confined the entry of words ''used by students', entry made in the notification no. 1166 dated 10.4.2000 does not confine it to the ''used by students'. Therefore the opinion of the tribunal with regard to this is clearly erroneous. In view of the above, I am of the opinion that the intention of the legislature so far as it relates to the words used in both the notification is clear. The description of the goods as made in the notification dated 20.5.1976 restricted the "use of the instruments by students" has now been clarified as to be used by all the persons, as enumerated in the notification no.1166 dated 10.4.2000. The Hindi version of the notification no. 1166 dated 10.4.2000 makes it clear that the exemption has been granted to the instruments, which are used to study life sciences. The dictionary meaning of the word ''students' as mentioned in Oxford Advanced Learners' Encyclopedic Dictionary is as under: Student - (1) person who is studying for a degree, diploma, etc. at a university or some other place of higher education or technical training, school student, a B.A. student, a medical student, a student nurse, teacher, etc. a boy or a person who is studying or has a particular interest in study. 4 Therefore the meaning of the word 'students' includes all students whether school going students or undertaking research work in the laboratories. A student is a person who is primarily engaged in studies and that would include study at any level including research studies also. In my opinion, the tribunal has clearly erred in making an artificial distinction between biological instruments, biology instrument because both the instruments are used in study of all life sciences. In so far as the argument as advanced by the learned standing counsel that the assessee himself was under the impression that it was not entitled to exemption. It is clear that while the assessee may have been in doubt earlier but it has later claimed the benefit under the notification, there can be no estoppel against the law. So the benefit as claimed cannot be denied to the assessee on this account. Having examined the material on record, I am of the clear opinion that while resorting the plain meaning of the words, as described in both the notifications, it is clear that the legislature intended to extend the benefit to persons such as the assessee who were manufacturing biological instruments and it was not confined to the students alone by the subsequent notification no. 1166 dated 10.4.2000. Had that been so, the legislature would have once again stipulated that it was confined to the use of such kinds of students or any kind of students. While making comparison with the first notification dated 20.5.1976 and the second notification dated 10.4.2000 it comes to light that while the first notification was confined for the use of students and did not include "scientific instruments", the second notification i.e. the notification dated 10.4.2000 has extended the entry to scientific instruments also and has deleted the words for students. Therefore it comes to mind that if at all it was the intention of the legislature to confine the benefit of the exemption to students by the first notification, the restriction has been removed in the second notification and in fact "scientific instruments" have been included. The other thing, which comes to light is that even in the first notification the words used are for students. The word "student" is wide in sense, it includes students at all stages and at levels right from primary schools to research students. The interpretation as given by the tribunal that it confines students, is a limitation imposed by the tribunal. To my mind the very purpose of giving an exemption to apparatus and instruments used for educational and research purpose is to give impetus to education and to advance learning. When the words used by the legislature are to extend the benefit of this exemption in such a manner and this is clear from the plain words used in the notification, then to make unnecessarily limitations and restrictions by way of misconceived notion, would not doubt impinge on the very intention of the legislature and, thereby 5 unnecessarily create restrictions where there are none. As such the view as taken by the tribunal is narrow and restrictive and seeks to make qualifications on words, which are otherwise plain and commonly used. The tribunal has erred in adding a intendment to the words used by the legislature to confine it to students. This court is, thus, of the opinion that the assessee was entitled to the benefit of the notification no. 1166 dated 10.4.2000 in the category of biological instrument and scientific instrument. Other than this revision, five other revisions have been filed by the assessee against the same order dated 21.2.2007 passed by the tribunal. It is pointed out to the court that upto 30.11.1998 4% was to be charged from such students and upto 31.3.1999 5% goods have been made exempt with effect from 10.4.2000 and therefore the exemption on the goods will be granted to the assessee and in the manner as stated above. Trade Tax Revisions no.331, 332, 333,334, 330 and 329 of 2007 are allowed and decided accordingly. The order passed by the tribunal dated 21.2.2007 is set aside. It is made clear that the assessee is entitled to the benefit of notification no. 1166 dated 10.4.2000.;