Triveni Glass Limited vs The Commissioner of Trade Tax

Prakash Krishna, J.—The only point mooted in the present revision is whether ''tinted glass sheets manufactured by the applicant is liable to be taxed as ''goods or wares'' made of glass under the notification No. 5784 dated 7.9.1981 being Entry No. 4 or as unclassified item.

The dispute relates to the assessment year 1996-97 under the U.P. Trade Tax Act. The facts of the case are not much in dispute and may be noted in brief.

The applicant is engaged in the manufacture and sale of sheet glass, figured glass, neutral glass tubes in its factory situate at Iradatganj, Allahabad. The Assessing Authority during the course of the assessment proceeding found that one of the items manufactured by it in furnace No. 4 is tinted sheet glass, which according to it is unclassified item taxable at the rate of 15 per cent. The case set out by the dealer applicant was that the tinted sheet glass is nothing but "glass" in its primary sense and as such it is covered by the notification No. 5784 dated 7.9.1981. The contention of the dealer has not found favour by any of the three authorities below including the tribunal. Challenging the order of the tribunal dated L''2nd August, 2003, the present revision has been filed u/s 11 of the U.P. Trade Tax Act. in the memo of revision the following six questions have been framed:

i. Whether the entry "All goods and wares made of glass", excludes plain glass panes and treated the same as unclassified item, the Trade Tax Tribunal and lower authorities were justified to tax tinted/plain glass panes as declared commodity?

ii. Whether in view of common parlance as well as user of the tinted/colon red glass panes and plain glass panes are identical, in spite of that the tax has been imposed on the coloured/tinted glass panes as declared commodity instead of unclassified item?

iii. Whether plain glass panes does not cover tinted/coloured glass panes?

iv. Whether once the entry plain glass panes is specifically excluded from the entry "All goods and wares made of glass" the authorities were not justified in imposing tax on plain glass panes (coloured and tinted glass panes) as goods made of glass wares?

v. Whether in view of the tact that by mixing tinch of colours no new commercial commodity comes into existence as tinted/coloured glass panes is a plain glass panes, still the tax can be imposed as declared commodity instead of unclassified item?

vi. Whether in any view of the matter, the order passed by the Trade lax Tribunal is justified?

Before proceeding further it is desirable to notice the relevant Entry No. 4 in the aforestated notification No. 5784 dated 7.9.81 which reads as follows:

All goods and wares made of glass but not including plain glass panes, optical lenses, hurricane lantern chimneys, bottles and phials, glass-beads, clinical syringes, thermometers and scientific apparatus and instruments made of glass.

It may be noted that the authorities below have also noticed the manufacturing process of tinted glass sheet. It has noticed that the manufacturing unit of the applicant was surveyed by the Special Investigation Branch Unit Allahabad, and in that survey it was found that the tinted glass sheet is being manufactured in a separate unit and in the raw material cobalt oxide, carbon oxide, iron oxide etc. are mixed to manufacture the tinted coloured glass sheet. A special manufacturing process is adopted. The density and transparency of the tinted coloured glass sheet is different from that of ordinary sheet glass. The solar absorption power of tinted coloured glass sheet is much more than plain sheet glass and in the market or in common parlance ''tinted glass sheet'' is not treated as ''plain sheet glass''.

The main thrust of the argument of the learned senior Counsel for the petitioner is that on a true and correct reading of the ulorestated notification, the tinted sheet glass does not fall in the category of "a goods and Wares made of glass" it being "plain glass panes" as provided for in the said Entry.

The argument is that tinted glass sheet manufactured by the dealer is nothing but a glass in its primary sense. Elaborating the argument he submits that since it is glass in its primary sense it cannot be said that the tinted glass sheet is "goods" "wares" made of glass. The learned standing Counsel, on the other hand, supports the order of the tribunal and submits that the findings recorded by the tribunal that the tinted sheet glass is goods and wares made of glass is correct and it is essentially a finding of fact and does not suffer from any error either of law or fact. The submission is that the controversy presently involved in the revision stands concluded by Division Bench decisions of this Court in U.P. Glass Works Limited v. C.S.T., U.P. Lucknow 1973 UPTC 352 and Tarkeshwar Nath Agrawal v. C.S.T. 1975 UPTC 343.

Considered the respective submission of the learned Counsel for the parties and perused the record. It will be of some use to notice the legislative history of the Entry as given in the revision, and reproduced below:

i) Glass wares 1.4.48 to 31.3.56

ii) Glasswares other than Hurricane 1.4.56 to 19.5.76 Lantern, chimneys, optical lenses and bottles,

iii) All the goods and wares made of glass but not including plain glass, panes, opticals lenses, Hurricane lantern, chimneys, bottles and phials glass beads, clinical syringes, thermometer and scientific apparatus and instruments made of glass.

iv) All the goods and wares made of 7.9.91 till date glass but not including plain glass, panes, opticals lenses, Hurricane lantern, chimneys, bottles and phials glass beads, clinical syringes, thermometer and scientific apparatus and instruments made of glass.

It may be noted that the earliest Entry was of "glasswares". On subsequent amendments in place of "glasswares" "all goods and wares made of glass were substituted". The said phrase is still continuing and relevant discussion shall be made1 thereto at the later part of this judgement.

The arguments of the learned Counsel for the dealer, is that tinted glass sheet itself is glass in its primary form. The glass sheet is essentially glass in primary form and the Articles and goods made of glass comes into existence thereafter. It was submitted that the glass sheet is neither glasswares nor goods of glass in this connection reliance was placed on CST, Delhi Administration v. Baluja Glass Co. (1980) 46 STC 17. In this case the following Entry came up for consideration:

Glassware, glazedware and china-ware including crockery.

The assessing authority treated the glass panes and glass sheets as tailing under the head glasswares in the above Entry. The High Court while interpreting the Entry held that glassware means containers or vessels or other item of use made of glass and would not include glass sheets or window panes, cut out of the glass sheets. It expressed its dissent with Commissioner of Sales Tax, Madhya Pradesh, Nagpur v. Mohanlal Ramkisan Nathani (1955) 6 STC 136 and Tribuwandas Gulabchand and Brothers, Nagpur v. State of Maharashtra (1965) 16 STC 452. While distinguishing the case of Tribuwandas Gulabchand of Bombay High Court it was said that whether the glassware is glass, as understood in the trade parlance, could be determined only on evidence, but if evidence was not available the question had to be decided on the consideration of the entry.

Then, reliance was placed on CST, Madhya Pradesh v. Triveni Sheet Glass Works Limited (1990) 76 STC 308, a full bench decision of the Madhya Pradesh High Court. Therein the question was with regard to the taxability of glass sheets. The relevant portion of the Entry was "goods made of glass and glasswares". The lull bench in para 7 noticed that undoubtedly there is distinction between glass, goods or Articles made of glass. After doing so, it quoted a passage from the order of the Board wherein it was held by the Board that glass sheet, is glass simplicitor. Glass sheet is, therefore, according to the Full Bench a primary product which can be used for producing the goods or Articles made of glass and it cannot be equivated with goods, or Articles made of glass. The Full Bench expressed its dissent with the decision reported in Commissioner of Sales Tax, Madhya Pradesh, Nagpur v. Mohanlal Ramkisan Nathani (1955) 6 STC 136 and Tribuwandas Gulabchand and Brothers, Nagpur Vs. The State of Maharashtra, and Commissioner of Sales Tax Vs. Bombay Glass House, The Full Bench was of the opinion that in these decisions, it was not taken "into account that the glass sheet in common parlance is glass simplicitor" and glass sheet is a primary product used for producing Articles or goods made of glass. Glass sheet is a primary product." This distinguishes the case from the facts of the present case.

Whether the glass sheet is a manufactured glass sheet in the shape of finished commodity, came up for consideration before a Division Bench of this Court in U.P. Glass Works Ltd. v. CST Lucknow 1973 U.P.T.C. 352. The Entry which fell for consideration before the bench was-

Glass-wares other than hurricane lantern, chimneys and bottles.

In para 4 of the report the Division Bench noticed the contention of the dealer therein that glass sheet is nor an articJe of the glass, but glass'' itself. The said plea was negatived by making an observation whether the assessee manufactures glass in the form of glass sheet or manufactures glass sheet in the shape of a finished commodity, is a question of fact to be determined on evidence. Since this question was not raised before the Sales Tax Authority there is no finding on the point. It was found that the assessee manufactures and sells glass sheet which are used as window and door panes. It may be noted that the Court has relied upon its earlier decision in CST v. Banaras Bead Manufacturing Co. Limited, Varanasi 25 STC 100 wherein it was held that the term "glassware" must be taken to refer to all Articles of glass except those specifically excluded or those separately listed in other Entries. On this finding it was held that glass beads were included in the terms of "glasswares".

In view of the aforesaid authoritative pronouncement of Division Bench of this Court, there is little scope for me to reconsider the matter. So far as the Allahabad High Court is concerned, the matter is no longer res Integra and it has been set at rest by a Division Bench decision given in U.P. Glass Works Limited (supra) that all Articles made of glass are glasswares. So far as the glass sheet is concerned, the matter also stands concluded specifically.

The facts of the present case are almost identical to the facts as they were in U.P. Glass Works. Therein as well as in the case on hand, there is no finding by any of the authorities below that the glass sheet manufactured by the dealer is in the shape of raw material rather it is in the shape1 of finished commodity. It is sold to the customers in the open market like any other finished article. It is almost admitted position that out of glass sheets manufactured by the dealer, window and door panes are being made out by cutting sheets in the required sizes.

In the present case as noticed above, the question is not with regard to the taxability of plain glass sheet but is with regard to the tinted glass sheet. It is still worst. A serious attempt was made by the learned senior Counsel on behalf of the dealer that so far as manufacturing process is concerned, there is no material difference in manufacture of plain sheet glass and that of ''coloured sheet glass''. By mixing (1) cobalt oxide (2) Nickel Oxide and Iron Oxide etc. in the manufacturing process of glass sheet, the tinted glass is produced. The commodity remains the same i.e. a plain glass sheet, submits the learned Counsel. In support of the above proposition, reliance was placed on. Gujrat Steel Tubes Limited and Ors. v. State of Kerala and Ors. 1999 UPTC 1072 and Maqsood Mohammad v. The State of U.P. and Anr. 1977 U.P.T.C. 518 and certain other decisions. These decisions have hardly any application to the controversy involved in the present case. In the case of Gujrat Steel Tubes Ltd. it was held that the purpose of galvanized pipe is merely to make it weather-proof. It remains a steel tube. By being put through the process of galvanising it is made rust proof. Neither its structure nor function is altered. As a commercial item it is not different from a steel tube. Merely because the steel tube has been galvanised does not mean that it ceases to be steel tube. The limited purpose of galvanisation does not bring a new commodity into existence. It was a case u/s 14(iv)(xi) of the Central Sales Tax Act. It was held that the process of galvanising a pipe is only to make it weather proof. Neither its structure nor function is altered. But that is no so in the case of tinted glass sheet. It has been found by the tribunal as a fact which was not disputed anywhere, that a tinted glass sheet has more radiation absorption capacity than a simple sheet glass. It is different in its transparency and density than a plain sheet glass. The assessing authority has also recorded a finding which is not challenged that in common parlance, tinted glass sheet is not treated as plain glass sheet. The principle as laid down in the case of Gujrat Steel Tube, therefore, is not at all attracted and it is besides the point.

So far as the decision in the case of Maqsood Mohammad (supra) is concerned, it is distinguishable on facts. The controversy involved therein was quite distinct. Salt is an exempted item u/s 4 of the U.P. Sales Tax Act. The State Government had issued a notification u/s 3A of the said Act wherein in the Entry of species, dry fruits and condiments, Kala Namak was included but salt was excluded. This Court took the view that ''Kala Namak'' is still a salt and salt being an exempted item u/s 4, could not have been taxed u/s 3-A of the Act. The Court was concerned more with regard to the interplay of notification issued under Sections 4 and 3 A of the U.P. Sales Tax Act. The court proceeded to decide the controversy that Kala Namak even if it is manufactured by the process as alleged by Sales Tax Authority, is a species of edible salt, it comes within the ambit of word ''salt'' in Section 4(1)(a) of the Act and cannot be taxed u/s 3 A of the Act. Held. Section 4 of the Act deals exemption from sales tax.

The notification which seeks to exclude Kala Namak from the exemption granted u/s 4 of the Act is clearly ultra-vires of the Act to that extent. Para 19 of the judgement is reproduced below:

Thus, it is clear that Kala Namak, even if it is manufactured by the process alleged by the Sales Tax Authorities, is a species of edible salt and comes within the ambit of the word ''salt'' occurring in Section 4(1)(a) of the Act. It follows that the impugned notification of the Government which seeks to exclude Kala Namak from the exemption granted u/s 4 of the Act is clearly ultra fires of the Act to that extent.

As is apparent, the observations made therein were made in a different factual set U.P. The controversy involved therein was totally different. Even otherwise also somewhat a different view has been taken by the Apex Court in the case of Commissioner, Sales Tax, U.P. Vs. Agra Belting Works, Agra, However, it is not necessary in this case to dwell upon any further.

Reference was also made to unreported judgement in Sales Tax Revision No. 1560 of 1991 CST v. Harakchand and Sons decided on 6th of April, 2004 wherein question of taxability of figured glass as a glass sheet was raised. The finding recorded by the tribunal was that the figured glass and glass sheet is produced by same process and from the same raw material. The only difference between the plain glass and figured glass as found by the tribunal is that in the plain glass sheet roller makes glass surface of both the side even. In the figured glass one surface is uneven. Since no illegality could be pointed in the order of the tribunal, the High Court without discussing anything further or recording its own finding dismissed the revision being concluded by findings of fact. There being no ratio in the judgement, it cannot be treated as a precedent. For the same reason, the judgement in TTR No. 732 of 1997, CTT v. Toughened Safety Glass Industry decided on 18.2.2008 is of no help to the applicant.

In Hindustan Safety Glass Works v. CST 1998 UPTC 1012. The question of toughened glass sheet was involved and it was held that it is a unclassified item and it does not fall under Item No. 39.

A bare look to the relevant notification would show that the Entry under consideration has been worded in its widest term. The use of the words "All goods and wares" are significant. The intention of the Legislature is clear to include in its ambit "any goods and wares made of glass. Earlier the Entry was of "glasswares" alone. Even then, this Court in U.P. Glass Works Ltd. (supra) held that glass sheet is included therein. The Entry was amended subsequently and by adding words "All goods" its scope and ambit has been widened further. These words are of great significance and do clearly demonstrate the intention of legislature to include all goods and wares of glass unless excluded as specified therein. When the Entry is in its widest term and also provides exclusion of specified articles, it means that Legislature intended to include all item in the Entry except specified items excluded therein. As held in the case of U.P. Glass Works, unless it is shown that the glass sheet is raw material, it is either good of glass or glassware cannot be disputed. In the present case, the glass sheets are being sole as finished item to the customers as found by all the authorities below, which is essentially a finding of fact. It follows that the commodity in question is "goods" or "wares" of glass and the contrary argument of the learned Counsel has got no substance.

The legislative history of the entry also supports the proposed view.

The meaning of the word "of" used in an item in a fiscal statute must be considered having regard to the intention of the maker thereof. The Court shall, for the said purpose, put itself in the chair of the legislature. It would presume the "legislation" to be reasonable. See Mauri Yeast India Pvt. Ltd. Vs. State of U.P. and Another, a case under the U.P. trade Tax Act, interpreting "chemicals of all kinds".

Then, contended that the tinted glass sheet is liable to be excluded as it is nothing but is plain glass panes. Reference was made to the Dictionary meaning of words "plain" and "panes" as given in Webester''s Encyclopaedic Unabridged Dictionary 1989 Edition.

Plain (plan) adj. 1. clear or distinct to the eye or ear: a plain trail to the river, to stand in plain view. 2. clear to the mind; evident, manifest, or obvious; to make one''s meaning plain; a dislike of the subject that was plain. 3. conveying the meaning clearly and simply; easily understood; plain . 4. downright; sheer; utter; plain folly; plain stupidly. 5. free from ambiguity or evasion; candid; outspoken; the plain truth of the matter. 6. without special pretensions, superiority, elegance, etc.; ordinary, plain people. 7. not beautiful; physically unattractive or undistinguished: a plain face; a childhood fear that she would be plain. 8. without intricates or difficulties. 9. ordinary, simple, or unostentatious: Although she was a duchess, her manners were attractively plain. 10. with little or no embellishment, decoration, or enhancing elaboration: a plain blue suit. 11. without a pattern, figure, or device: a plain fabric. 12. not rich, highly seasoned, or elaborately prepared, as food: plain, fresh, substantial fare; a plain diet. 13. flat or level: plain country. 14. unobstructed, clear, or open, as ground, a space, etc. 15. Cards, being other than a face card or a trump. - adv. 16. clearly and simply: He''s just plain stupid - n. 17. an area of and not significantly higher than adjacent areas and with relatively minor differences in elevation, commonly less than 500 feet, within the area. 18. the Plain, Fr.Hist. (in the National Assembly) the loosely organised party of moderate republicans: so called because its members occupied the lowest seats or benches. Cf. mountain (del. 4). 19 The plains. See Great Plains. [MH < OF < L plan (us)flat, level, plan (um) flat country] - plan ly, adv. - plain ness, n.

In the Compact Oxford Reference Dictionary audited by Catherine Soanes the word ''Plain'' means - "i. simple or ordinary 2. without a pattern 3. unmarked 4. easy to see or understand...."

In the Dictionary by Webster the word "plain" means as follows:

(plein) 1. adj. easy to see or understand simple, not embellished or complicated absolute, complete, plain madness (of food) unelaborate, not having unusual or spicy ingredients bluntly frank unsophisticated lacking physical beauty, but not ugly 2. n. a large expanse of level, open country 3. adv. manifestly, it''s just plain wrong clearly, candidly, she told him plain [O.F. fr. L.]

"Pane" by Webster''s Dictionary means as follows:

Pane - n. a single sheet of glass in a window, greenhouse etc. a division of a window etc. containing such a sheet of glass in a frame a flat side or edge of a many-sided object.

The learned standing Counsel, Shri B.K. Pandey, on the other hand, relied upon Oxford Dictionary for meaning of word "pane". It is reproduced below from the Concise Oxford Dictionary:

Pane - n. 1. A single sheet of glass in a window or door 2. a rectangular division of a chequered pattern etc.

The word ''plain'' has various shades of its meaning but here it has been used in the sense of uncoloured, clear, simple. Shri Bharatji Agrawal, the learned senior Counsel, on the other hand, submits that the word ''plain'' here means ''even surface''. According to him the adding of colour in the glass sheet will not take away the glass sheet out of the ambit of exclusion Clause of the aforesaid Entry.

The said issue can be resolved from the point of view as to how the persons who are in the business understands the meaning of ''plain glass sheets''. In commercial words, as noticed by the tribunal, plain glass sheets means colourless glass or having a colour of water. The tribunal has noticed that a dealer of glass sheet, is not required to exhibit all kinds of sheet glass including coloured one when a customer demands plain glass sheet. Unless a coloured glass is asked for, a dealer exhibits the (uncoloured) plain glass sheet. The said finding of the tribunal is essentially a finding of fact. In common parlance also, in window and doors, plain glass sheet i.e. uncoloured glass sheets are used generally. These glass sheets are also used as table top, in showcase and also as racks in Almirah. It may be noted that only plain glass sheets which is not coloured is used generally.

Neither the dictionary meaning nor the common parlance theory posits the dealer''s stand.

Viewed as above, it is difficult to agree with the submission of the learned senior Counsel for the applicant that the tinted glass sheets manufactured by it is "plain glass panes". Dictionary meaning of words ''panes'' means glass sheets in small sizes used in doors and windows but they cannot be treated as glass sheets as panes are made out of glass sheets by cutting it into sizes.

In Atul Glass Industries Pvt. Ltd. v. Collector of Central Excise (1986) 63 STC 322, a case under Central Excise and Salt Act wherein the Apex Court has held that a glass mirror is a different commodity than a glass bowl, a glass vase, a glass tumbler, a glass table-top etc. In such items, the primary component is glass. Glass mirror is manufactured from a glass sheet which passes through a detailed process. In glass mirror the word glass is descriptive of mirror and in that the glass has been used as medium for manufacturing the mirror. In this case, the judgement of this Court in CST v. Banaras Beads Manufacturing Co. has been noticed. The relevant portion is extracted below:

Reliance was placed by the Revenue on Commissioner, Sales Tax Vs. Banaras Bead Manufacturing Co., where the Allahabad High Court held that glass beads could be described as "glassware" for the purpose of notification issued under the U.P. Sales Tax Act. The decision of the High Court rested on the manner in which the contextual setting was altered in successive and different notifications promulgated under the U.P. Sales Tax Act, indicating the content of the expression as developed through successive notifications.

The learned senior Counsel placed before me the Indian Standard Specification for Flat Transparent Sheet Glass (Third Revision) of March 1988 with regard to the flat transparent sheet glass. "Glass" and "Glass sheet have been described in the following manner:

2.1 Glass - An inorganic product of fusion which has cooled to a rigid condition without crystallizing. It is typically hard and brittle and has a conchoidal fracture. It may be colourless or tinted and transparent to opaque. Masses or bodies of glass may be tinted, translucent or opaque by the presence of dissolved, morphous or crystalline material. Glass that does not contain such added materials is termed as ''clear'' glass, even though the finished product may not be transparent in the ordinary sense as a result of the pattern furnished (wired, corrugated, figured).

2.2 Sheet Glass - Transparent, flat glass having glossy, fire-finished, apparently plane and smooth surfaces, but having a characteristic waviness of surface.

The description of ''glass'' and ''glass sheets'' in the Indian Standard Specification supports the view which I am proposing to take rather advancing the case of the applicant. Sheet glass has been described as ''flat glass'' having glossary, fire finished, apparently plain and smooth surfacing. Evidently, it does not include tinted sheet glass.

A very interesting question arose before the Apex Court in Indo International Industries v. Commissioner of Sales Tax U.P. 1981 UPTC 481. The question was whether hypodermic clinical syringes, thermometers and lactometers are glasswares or are liable to be taxed as hospital equipments.

In this connection the Apex Court has held that it is true that the Dictionary meaning of the expression "glassware" is "article made of glass". However, in commercial sense glassware could never comprises of articles like clinical syringes, thermometers and lactometers and alike items which have specialized significance1 and the utility. In this very case the emphasis was laid by the Apex Court that the term which has not been defined in the Act, the meaning of the term in common parlance or commercial parlance has to be adopted. Relying upon its earlier decision in The Travancore Rubber and Tea Co. Ltd. Vs. The Commissioner of Agricultural Income Tax, Kerala, it was held that the betel leaves were not vegetable. In that very case question was whether ''betel leaves'' fell within item ''vegetable'' so as to earn exemption from sales tax and the Court held that word ''vegetable'' has not been defined in the Act, and that the same must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance and so construed it denoted those classes of vegetable matter which are grown in kitchen garden and are used lor the table and did not comprise betel leaves within it and , therefore, betel leaves were not exempt from taxation.

Lastly, by placing reliance upon a judgement of the Apex Court in Ponds India Ltd. (Merged with H.L. Ltd.) Vs. Commissioner of Trade Tax, Lucknow, it was submitted that the burden is upon the Revenue to show that the tinted glass sheet falls in the aforestated item of the notification. Advancing the argument further, the learned Counsel submits that the department having failed to show that the tinted glass sheet falls in the aforesaid Entry, it is liable to be taxed as unclassified item. The said question does not arise on the facts of the present case as it has been held to be glassware. In the assessment order it has been noticed by the assessing officer that the tinted sheet glass is different than the plain sheet glass and is understood in the commercial word, differently. The manufacturing process of the two are also different. The said findings were not challenged or even if challenged have attained finality as the tribunal, the last fact finding authority, has found that the tinted glass sheet does not fall in the plain glass sheet. According to the tribunal in the manufacture of tinted glass sheet a specific process is adopted and additional materials like cobalt oxide, nickel oxide, iron oxide etc. are also added to provide colour. In the commercial word also these commodities are not treated at par.

Another limb of the argument of Shri Bharatji Agrawal, learned senior Counsel for the applicant, is that burden is upon Revenue to show that a particular item falls in a particular Entry. In this connection, strong reliance was placed by him on Ponds India Limited (supra). He further submits that in the earlier assessment years the assessing authority had treated the "tinted glass sheet" as plain glass sheet, this year also, the commodity in question should be treated accordingly. It is difficult to agree with him. The cases are to the effect that recourse to a residuary Entry should be taken by way of last resort. In this connection, a recent judgement of Apex Court in Mauri Yeast India Pvt. Ltd. Vs. State of U.P. and Another, is useful. It reads as follows:

It is now well settled principle of law that in interpreting different Entries, attempts shall be made to find out as to whether the same answers the description of the contents of the basic Entry and only in the event if it is not possible to do so, recourse to the residuary Entry should be taken by way of a last resort.

More or less, similar observation can be found in H.P.L. Chemicals Limited Vs. Commissioner of Central Excise, Chandigarh, a case under the Central Excise Act wherein it was observed that heading 38.23 is only a residuary heading governing the residual product of chemical or allied industries nor elsewhere specified or included. It was held that in the residuary Entry only such acts, as cannot be brought under the various specific Entries in the tariff, should be attempted to be brought under the residuary Entry as held in M/s. Bharat Forge and Press Industries (P) Ltd. Vs. Collector of Central Excise, Baroda, Gujarat,

Coming to the facts of the case, it is applicant who submits that "tinted glass sheet" should be taxed under a residuary Entry i.e. as an unclassified item, while according to the department, it is a glassware. As herein noted above, the word "glassware" was interpreted by a Division Bench of this Court as far as back in the year 1970 in the case of Banaras Beads Manufacturing Co. (supra). The said item glassware continues till date meaning thereby the interpretation placed by this Court which is supposed to be known to the legislature has been accepted by them. So far as other part of tin1 argument is concerned, it is mentioned in the assessment order itself that in the relevant assessment year when the business premises of the dealer applicant were inspected by the Special Investigation Branch of the Department, it was revealed that "tinted sheet glass" is being manufactured through a different process. This being the position, the argument of the dealer applicant is meritless.

In view of the above discussion, I find no illegality in the order of the tribunal holding that the tinted glass sheets are liable to be taxed under notification No. 5784 dated 7.9.1981 as glassware it falls in Entry No. 4 and not as an unclassified item.

The revision is dismissed. No order as to costs.