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Judgment
Abdul Hadi, J.—T.C. Nos. 302 of 1981, 303 of 1981 and T.C. No. 250 of 1990 are all by the same assessee, Southern Refractories and
Minerals, while T.C. No. 187 of 1986 is by the assessee, Carborandum Universal Limited. All these four revision cases are u/s 38 of the Tamil
Nadu General Sales Tax Act, 1959 (hereinafter called ""the Act""). The common question involved in the tax revision cases filed by the assessee,
Southern Refractories and Minerals is whether the ""castable refracting binding materials"" sold by the assessee would fall under item 34 of the First
Schedule to the Act and consequently be subject to single point tax, as per section 3(2) of the Act, or would not fall so and be subject to multi-
point tax u/s 3(1) of the Act. These three tax revision cases deal with assessment years 1974-75, 1975-76 and 1984-85, respectively. Tax Case
No.187 of 1986 also deals with the question, ""whether the refractory materials called cumicrete sold by the petitioner/assessment therein would fall
under the abovesaid item 34"". The relevant assessment year in this case is 1983-84. The said item 34 stood with effect from February 26, 1970,
as follows :
Cement. At the point of first sale 8 per cent.
In the State.
So, for the above referred assessment years 1974-75 and 1975-76 the rate of tax was 8 per cent. But with effect from February 21,1978, it
was increased to 10 per cent and with effect from March 1, 1982, it was increased to 12 per cent. So, for the above referred to assessment years
1983-84 and 1984-85, the rate was 12 per cent.
Apart from the abovesaid changes in the rate of tax, the said item 34, suffered a change in the description of the goods also, with effect from
July 1, 1982, in that the original term ""cement"" was substituted by the term ""cement including its substitutes"". So, while in T.C. Nos. 302 of 1981
and 303 of 1981 it has to be seen whether the assessee''s product is ""cement"", in T.C. Nos. 187 of 1986 and 250 of 1990 it has to be seen
whether the assessee''s product would come under the term ""cement including its substitutes"".
So, in all these cases, if the respective assessee''s product does not fall under said item 34 at all, it cannot be subject to the abovesaid higher
rates of tax of 8 per cent or 12 per cent, as the case may be, but can be subject to tax only at the lower multi-point rate of tax u/s 3(1) of the Act.
All the authorities below including the Tribunal have concurrently held that the respective disputed turnovers relating to the abovesaid product of
the two assessees are exigible to tax u/s 3(2) of the Act read with the abovesaid item 34 of the First Schedule to the Act. In other words,
according to them the goods in each of these cases fall under the item 34, both before the amendment of the description of the goods in the said
item 34 and after. With reference to the Tax Case Nos. 302 of 1981 and 303 of 1981, the Tribunal has passed a common order dated October
1, 1980, in T.A. Nos. 114 and 115 of 1980 on its file and the disputed turnover amounts are respectively Rs. 79,763 and Rs. 1,62,448. With
reference to Tax Case No. 250 of 1990, the discussion in the said decision runs as follows :
The word ''cement'' not having been defined in the Act or in the Rules, it has to be understood as in common parlance. Cement is a commodity of
everyday use. White cement is only a special variety of ordinary cement which is grey in colour. Ordinary cement is most extensively used as a
building material. The white cement or refractory cement is also used as a building material, but sparingly because of its high price. White cement is
ordinarily used in flooring and other decorative cement works.
Our attention has been drawn to a booklet relating to A.C. white cement. We find that the process of manufacture of white cement and the
ordinary cement is the same except that in the white cement certain ingredients are mixed in small quantities which give it whitish colour. In that
booklet it is also mentioned that white cement can be used for the same purpose as the ordinary grey cement.
From the above observation, it will be seen, excepting the statement ""white cement or refractory cement is also used as building material, but
sparingly because of its high price"", the other discussion is only with reference to white cement. Even in a later passage in the judgment there is
reference only to white cement as follows :
White cement, as we have already observed, is only a variety of cement. It was pointed out to us that under the U.P. Sales Tax (Amendment)
Act, 1973, the entry ''white cement'' has specifically been included in the cement. This does not show that white cement was not covered by that
entry. The Government has clarified the position which was previously implicit, may be because of the contrary view taken by the sales tax
authorities.
So, we can take it that really there is no discussion regarding rafractory cement in the abovesaid decision. Perhaps, the decision went on the
assumption that refractory cement and white cement are similar.
In this connection, the learned counsel drew our attention to an extract from the book ""Roger''s Manual of Industrial Chemistry"" which was filed
before the Tribunal. According to the said extract, fire clays which are the goods sold by the assessee, Southern Refractories and Minerals, will
stand a high degree of heat to the extent above 1,600 Degree C and are thus highly refractory. The basic everyday encyclopaedia also describes
fire clay as one which will not melt, burn or combine with the substances being heat-treated. The Tribunal also extracts in its order the submission
of the learned counsel for the assessee regarding what is contained in the abovesaid ""Roger''s Manual"" relating to the said refractory material or fire
clay.
No doubt in the said extract of ""Roger''s Manual"" the term ""cement"" is also used in describing the said refractory material. The relevant passage
therein runs as follows :
A refractory cement called ''luminite'' consisting essentially of calcium aluminate, has many of the properties of a portland cement (calcium silicate)
and in addition is refractory. It can be mixed with a refractory aggregate such as old fire bricks or a variety of other materials ground to proper size
to make a refractory concrete that can be placed in the same manner as ordinary concrete, and has similar air setting properties.
But simply because the word cement is used in the abovesaid extract in describing the abovesaid refractory material or fire clay it cannot be
termed as cement within the meaning of the abovesaid item 34.
The learned counsel points out, as already stated, what actually to be seen is whether the abovesaid refractory material or fire clay could be
called cement under item 34, in the above referred to popular sense in the trade in question. It is in this context the learned counsel submits that
according to Indian Standards Institute-classification the abovesaid refractory materials or fire clay do not fall under any category of cement. The
different categories of cement as found in Indian Standards Institute-specifications, have also been extracted in the order of the Tribunal as follows
:
269-1976 - Ordinary and low heat portland cement (third
revision).
455-1976 - Portland slag cement (third revision).
1989-1976 - Portland Pozzolana cement (second revision).
2645-1975 - Integral cement waterproofing compounds (first revision).
3466-1967 - Masonry cement (first revision).
3535-1966 - Methods of sampling hydraulic cements.
4031-1968 - Methods of physical tests for hydraulic cement.
4032-1968 - Methods of Chemical analysis of hydraulic cement.
6452-1972 - High alumina cement of structural use.
6909-1978 - Supersulphate cement.
8041-1978 - Rapid hardening portland cement.
8043-1978 - Hydrophobic portland cement.
8112-1978 - High strength ordinary portland cement.
8229E-1976 - Oil-well cement.
8042-1978 - White portland.
The assessee''s material does not come under any one of the above extracted items. The learned counsel submits that the classification by the
Indian Standards Institute is, prima facie a classification conforming to trade and industrial usage and binding on the sales tax authorities.
The learned counsel also points out that the same question also arose under the law relating to excise duty and the matter was duly reported to
the Central Board of Excise and Customs (Ministry of Evidence) in September/October 1980 and, after the consideration of the technical
applications the Central Board of Excise and Customs was pleased to issue Tariff Advice No. 75/80, dated November 25, 1980, stating that fire
clay/refractory mortars and ramming masses are correctly classifiable under item 68 and not under item 23 of the Central Excise Tariff. The said
item 23 runs as follows :
Item No. 23 : CEMENT
------------------------------------------------------------------------
Item Tariff Description Rate of duty
No.
------------------------------------------------------------------------
Cement, all varieties -
(1) Grey portland cement (including ordinary Two hundred
portland cement, portland-pozzolana and fifty
cement and portland slag cement, masonry rupees per
cement, rapid hardening cement, low heat metric tonne.
cement and waterproof (hydrophobic
cement).
(2) All others. Forty per
cent ad
valorem.
-----------------------------------------------------------------------
The abovesaid item 68, as residuary entry runs as follows :
All other goods, not elsewhere specified, Twelve per cent but excluding - ad valorem.
So, according to the counsel, from the above tariff advice it is also seen that the trade in question has treated the abovesaid refractory materials
or fire clay not as ""cement"".
Even with reference to T.C. No. 187 of 1986, the learned counsel also rightly points out that the abovesaid cumicrete is only a refractory
mortar and is not popularly or commercially known as cement falling under item 34. Cumicrete are nothing but monolithic refractory which covers
castables, ramming masses and plastics. The learned counsel also brought to our notice section 15 of ""1987 Annual book of ASTM Standards"" of
ASTM, Philadelphia containing standard definition of term relating to refractories, including castable, fire clay, monolithic refractory, heat setting
mortar and refractory mortar. So, this product is also a refractory material as is the case with the produce under the other tax cases.
Though the products under these four revision cases have the property of cement in being a bonding material, their main property is their fire-
resistant or refractory feature. At any rate in trade, as shown by the above referred to India Standards Institute''s classifications and how they are
treated under the law relating to excise, they are popularly or commercially not known as cement though some dictionary meanings may bring the
refractory materials also within the word ""cement"". But we have to go only by the popular or commercial meaning of the term as enjoyed in the
above referred to decisions. Thus, rightly contending, the learned counsel for the assessee also brought to our notice 1986 Tax LR 1960
(Purbanchal International in re :) where the Calcutta High Court has held as follows, in the context of Import Cement (Control) Order, 1978 :
The important test for determining whether white cement and ordinary cement are one commercial commodity or not, is that if a customer asks for
cement from a cement dealer, whether, the cement dealer will give him or offer white cement or not. Certainly, a cement dealer will not offer white
cement in such a case. The values of the two commodities are different, their chemical composition, and uses are quite different. In commercial
world they are treated as two different commercial commodities. Even the Central Government treated the same as two different commodities. It is
also well-established principle of law that in interpreting a particular commodity the dictionary meaning and the technical meaning should not be
adhered to and that in a taxing statute words of everyday use must be construed not in their scientific or technical sense, but as understood in
commercial parlance. Reference may be made in this connection to the decisions of the Supreme Court of India in Ramavatar Budhaiprasad Etc.
Vs. Assistant Sales Tax Officer, Akola, ; Motipur Zamindary Co. (P) Ltd. Vs. The State of Bihar, and State of West Bengal and Others Vs.
Washi Ahmed and Others, and Porritts and Spencer (Asia) Ltd. Vs. State of Haryana, . In view of the decisions of the Supreme Court and in view
of the statutory definition of ""cement"" under the Imported Cement (Control) Order, 1978 and the booklets issued by the Indian Standard
Institution, it is no longer open for the Collector of Customs to ignore such definition and to contend that the cement in the market parlance also
includes white cement. Such a view taken by the Collector of Customs is without any basis or materials or record and as such a finding on the fact
of it is perverse.
No doubt in the above case the question there was whether the product was white cement or ordinary cement, in the context of the definition
of ""cement"" as provided in para 2(a) of the Import Cement (Control) Order, 1978. No doubt there is no definition of ""cement"" in the present case.
But the principles enunciated there, that the popular meaning should be given to such terms and that the classifications made by the Indian
Standards Institute regarding the goods in question could be made use of in determining the said popular or commercial meaning.
The learned counsel for the assessee also brought to our notice the decision of this Court dated June 29, 1971 in Tax Case No. 155 of 1971,
where this Court confirmed that the Tribunal was right in its view that the product in question was not cement but hydraulic semi-fused lime
powder. The learned counsel also submits that the Import Cement (Control) Order also does not cover the above referred refractory materials
sold by the assessees in the present case, as born out from the letter received by the assessee from the Associated Cement Corporation Limited.
Even with reference to the petition after the above referred to amendment of item 34 with effect from July 1, 1982, substituting the term
cement including its substitutes"" for the original terms ""cement"", the learned counsel for the assessee contends that the same argument would apply
there too, since the above referred to refractory materials of the assessee could not be termed ""substitutes"" in the above referred to popular or
commercial sense, because nobody would use such refractory materials which are much costlier than the ordinary portland cement, for the purpose
for which normally the portland cement is used, namely, building purpose and that hence materials would not come under the term ""substitutes
also.
On the other hand, the Additional Government Pleader appearing for Revenue, contends that the term cement in entry 34 is used only in a
broader sense to include all binding materials and that the dictionary meaning also is to the same effect. Further he also points out that even the
above referred to extract of ""Roger''s Manual"" used the word ""cement"" in describing the abovesaid refractory materials. Further he contents that
there is a stronger reason for including the abovesaid refractory materials in the abovesaid item 34 after its above referred to amendment, since
according to him, these materials could be ""substitutes"" for cement.
Having carefully considered the above referred to arguments of both the counsel and going through the relevant documents filed by the
assessee and the above referred to Supreme Court and High Court decisions, we hold that, taking into account the popular commercial meaning of
the term ""cement"", the above referred to refractory materials of the two assessees in these four revisions cases cannot fall under the abovesaid item
34 both before the above referred to amendment and after. The Tribunal''s decision rested on Commissioner of Sales Tax Vs. Mango Mal Nanak
Ram, . But though Commissioner of Sales Tax Vs. Mango Mal Nanak Ram, generally deals with both ""white cement"" and ""refractory cement"", it
actually discussed only about white cement and not refractory materials. So Commissioner of Sales Tax Vs. Mango Mal Nanak Ram, cannot be
relied on, with reference to the refractory materials of the assessees in the present case.
Therefore, these revision petitions are allowed in favour of the assessees and the orders of the authorities below including the Tribunal are
modified, holding that the above referred to disputed turnovers are exigible to tax only at multi-point rate u/s 3(1) of the Act in the respective
assessment years in question and not under single point rate as per item 34 of the First Schedule to the Act read with section 3(2) of the Act.
However in the circumstances of the case, no costs.
Revision petition allowed.