Commissioner Sales Tax vs M/S Jabalpur Aerated Water Factory

P.V. Dixit, C.J.—This is a reference u/s 44 of the Madhya Pradeh General Sales Tax Act, 1958, at the instance of the Commissioner of Sales Tax. The question propounded for our decision is:

Whether the word ''drinks'' in item No. 49 of Part II of Schedule II to the Act includes aerated water?

The material facts are that the assessee M/s Jabalpur Aerated Water Factory, Jabalpur, manufactured and deals in aerated waters. During the course of assessment proceedings for the period 1st April 1959 to 31st March 1960, the assessee raised the contantion that the tax payable by it on sales of aerated water was 4 percent according to Part VI of schedule II to the Act, and not at 7 percent according to entry no. 49 of Part II of Schedule II. This contention was rejected by the Sales Tax Officer as well as by the first appellate authority. It was however, accepted by the Tribunal holding that the word "drinks" in item no. 49 of Part II of Schedule II did not include aerated water.

Entry No. 49 of Part II of Schedule II is as follows:

All kinds of eatables and drinks parked in time or bottles such as syrups, distilled juices (ark), jams (chatni and murabbas), fruit juices, essences and gulkand, etc.

The only entry in Part VI of the Second Schedule in with regard to the taxability at the rate of 4 per cent of all other poods not included in Schedule I or any other part of this Schedule (that is Schedule II). Thus if any article does not fall in the list of goods exempted from tax enumerated in Schedule I and is not covered by any item in Parts I to V of Schedule II, then the sale tax payable on that article is at the rate of 4 per cent. Now, the aforesaid entry no. 49 no doubt begins with general words, namely "All kinds of eatables and drinks packed in tins or bottles". But these general, words do not stand by themselves. They are immetiately followed by an expression which beings with the words "such as" interposes specific kinds of goods and then ends with the phrase "etc." The words "such as" and "etc." are words of limitation in regard to the meaning of the general words "all kinds of eatables and drinks". The words "suchas" mean having that particular quality or characteristic specified. So also the word "etc." means "the rest", that is to say, other things of the kind specified. In our opinion, the rule of ejusdem generis must be applied for the construction of the initial general words "All kinds of entables and drinks packed in tins or bottles" in entry No. 49. In this view we are fortified by a decision of the Madras High Court in Rajagopala Vandarahar Vs. T. Pillai, AIR 1923 Mad 511 where the description of a mortgage property given in a deed contained the expression, all kind of trees, topes, wells, ponds, tank-bunds, fruit trees, wood trees, foot paths, elevated and low portions etc.," On the construction of these words the Madras High Court observed:

Turing to the words ''etc'' they follow on enumeration of specific things beginning with ''all'' kinds of trees'' having some characteristic, and the words should be restricted to thing of the same nature as those which have been already mentioned. In such a case the rule of ejusdem generis will apply and the residential building cannot be ejusdem generis with the things already enumerated.

It is clear enough that aerated waters; charged with carbolic acid gas, coloured or plain and with a dash of some essence, cannot in any sense be regarded as ejusdem generis with syrups, or distilled juices, or jams, ors fruit juices, or essences and gulkand. What is inter alia taxable under entry No. 49 is drink of the kind specified in that entry and not aerated waters. If aerated waters do not fall under item no. 49 of Part If, Schedule II, then clearly the tax payable on the sale of aerated waters would be according to item no. 1 of Part VI, Schedule II.

For these reasons, our answer to the question posed for our decision is that the word "drinks" in item no. 49 of Part II, Schedule II, does not include aerated waters. In the circumstance of the case, we leave the parties, to bear their own costs of this reference.