Dismissed

The Commissioner of Sales -Tax,Mum v. M/S Inaid Gypsum Ltd.

Bombay HC17 Apr 2009STXA/4/2008

Case brief

AI extract

What is this about?

The Bombay High Court held that gypsum board, despite containing paper and additives, falls under Entry 41 of Schedule C of the M.V.A.T. Act. The court determined that the primary composition remains gypsum in a board form, rejecting the argument that it is a distinct product.

What did the court decide?

The appeal was dismissed, and the Tribunal's order finding gypsum board liable to tax at 4% under Entry 41 of Schedule C of the M.V.A.T. Act was upheld.

The Commissioner of Sales -Tax,Mum Vs M/S Inaid… — Writ and Judicial Review | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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SALES TAX APPEAL NO. 4 OF 2008

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The Commissioner of Sales Tax, Maharashtra State, 8^th Floor, Vikrikar Bhavan, Mazgaon, Sardar Balwantsingh Dhodi Marg, Mumbai 400 010. ... Appellant

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Versus

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M/s. India Gypsum Ltd. 349, Business Point, 7^th Floor, Western Express Highway, Andheri (E), Mumbai 400 069. ... Respondent

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Mr. V.A. Sonpal, A.G.P. For Appellant. Mr. P.C. Joshi for Respondents,

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CORAM : FERDINO I. REBELLO &

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J.H. BHATIA, JJ.

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DATED : 17TH APRIL, 2009.

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ORAL JUDGMENT (Per Ferdino I. Rebello, J.):

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Admit on the following question :

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“Whether in facts and circumstances of case, the Tribunal was right inholding that product “gypsum board” is covered by entry C-41 in respect of gypsum in all its forms?”

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The respondent herein vide letter dated 14.7.2005 had sought clarification from

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the appellant about the rate of tax on Gypsum Board covered by invoice No. 5190356 dated 21.4.2005. According to the Respondents gypsum board is a versatile building material which lends itself to application in the interior spaces of commercial and residential premises. The Respondents manufacture and market gypsum based products which are “Gypsum Board and Gypsum Plaster”. The basic ingredients of these products are industrial gypsum or synthetic gypsum which constitutes more than 97% of the final product. The respondent therefore, made an application for determination of

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rate of tax on Gypsum Board. The appellant by order dated 14.11.2005 determined that Gypsum Board covered by Invoice No. 5190356 dated 21.4.2005 falls under entry No. E-I taxable at 12.5%. Aggrieved by that order, the respondent herein preferred an appeal before the Maharashtra Sales Tax Tribunal. The tribunal by its order dated 30.10.2007 set aside the order of appellant dated 14.11.2005 and held that the Gypsum Board covered by invoice earlier referred to will be liable to sale tax at the rate of 4% under Entry 41 of Schedule C of M.V.A.T. Act. This appeal is preferred against the said order.

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At the hearing of this appeal, on behalf of the Appellant, the learned counsel submits that the expression “Forms of Gypsum” is not extensive enough to cover the products manufactured out of Gypsum. The Forms of Gypsum it is submitted would cover hydrated or dehydrated forms of gypsum and not the further articles which are produced out of hydrated and dehydrated gypsum. In the process of manufacturing Gypsum Board, paper is added to both surfaces for giving appearance of board. The Gypsum Board is commercially understood as a different product from gypsum and their uses are different. One is raw material and the other is finished product for altogether different uses. In manufacture, different processes are applied at different stages to prepare the board and the end product does not remain gypsum powder. The board therefore, cannot be called a form of gypsum as the term “form” does not cover the products manufactured out of it. The percentage of content of gypsum used in end

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product is not determinative factor for classification. The meaning of the word “form” only means its natural existence or manifested forms without altering its meaning in common trade parlance and common use. The words “Form” and “description” do not include in their ambit the articles and products of a commodity. The end product of gypsum board contains various ingredients to give it a character of board for altogether different use than that of gypsum. It is therefore, submitted that the tribunal erred in holding that he product Gypsum Board is a form of Gypsum within the meaning of Entry 41 of Schedule C of MVAT Act and thus liable for tax.

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It may be mentioned that in so far as Gypsum plaster is concerned, the Appellant accepts that it is covered under Entry C-41.

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The question therefore, that we are called upon to answer is whether the Gypsum Board falls under the expression “All forms and description”. The counsel for the Respondents have brought to our attention the the phrasology used in the schedules of the Maharashtra Value Added Tax Act. Under C-41 the expression used is “all forms and description”. Under Entry No. 91 it is all forms. Under A-31 it is in any form. In A-9 and 9A it is specified forms. In C-30 it is a single form, C-31 it is mixed form and C-67 it is primary form. So also the expression “of all types in A-16, A-41, C-01 and others. The words except appears in A-18 and others “other than” in A-17 and other

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entries. The other expressions used are “all kinds” in C-3. Other expressions used are “including”, “all varieties”, “excluding”, “that is to say”. The Legislature therefore,

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having used various phrasology and or terminology, the court will have to assign some meaning to the said words.

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Let us first note the composition of Gypsum Board and Gypsum Plaster as has been noted by the tribunal in its impugned order.

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Sr. No. Raw material Gypsum Board Gypsum Plaster % RM requirement % RM requirement by weight by weight

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Natural Gypsum/Synthetic 99% 96.8-97% 2. Paper for Boards and Vermiculite of Perliite for Plaster 0.5% 2-3% 3. Additives 0.5% 0.1-02%

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Thus in so far as Gypsum Board is concerned, the Gypsum content is to

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the extent of 99% whereas in case of Gypsum Plaster it is 96.8-97%. Similar gypsum

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Board has lessor percentage of paper and; vermiculite or Perliite and the additives.

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The tribunal has also noted the process of manufacture of Gypsum Board. We may gainfully refer to what has been set out by the tribunal :

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“Process of Manufacture of Gypsum Board - Gypsum Board is manufactured using the natural gypsum/synthetic gypsum, paper and additives. The manufacturing process is given below.

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“Gypsum is hydrated by calcination which results in the production of stucco. In other words, natural gypsum or synthetic gypsum is converted into hemihydrate gypsum through calcination. Calcination is the process of holding a material for prolonged periods at elevated temperatures to remove moisture. The stucco is cooled to be used for the manufacture of calcinate plasters. The bottom paper reel and the top paper reel are mounted on respective roll beds. The required quantity of additives are fed continuously to mixture. In the mixture of the stucco, additives, water, foam will be mixed and fed on the moving bottom paper continuously in the form or slurry. The slurry will be spread on the bottom paper. The top paper will be bud to the bottom paper through additives. The gypsum board will be conveyed onto the moving conveyor and cut to required length on the

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cutter. The board is then dried after which they become hard and handled without damage.”

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In so far as Gypsum Plaster is concerned, this is what the tribunal stated :

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“Process of manufacture of Gypsum Plaster : Dehydrate gypsum is converted

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into hemihydrate gypsum through calcination. The additives are mixed with hemidydrate gypsum. It is then cooled and bagged. At site, the hemihydrate gypsum is mixed with water and re-converted into dehydrate gypsum. The stucco is then ground and additives are mixed with it which results into gypsum plasters.”

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The entry itself reads as under :

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“C-41 – Gypsum of all forms and descriptions”.

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From Wikipedia, the free encyclopedia, some of the uses of Gypsum have been

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set out which includes “Blackboard chalk, Plaster of Paris. It is also used as plaster, wall board, some cements, fertilizers, paint filler, ornamental stone etc. Its chemical composition is CaSO4-2(H2O).

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Form in Black’s Law Dictionary, 8^th Edition is described as under :

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“The outer shape or structure of something, as distinguished from its

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substance or matter”.

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“Description” is defined as under:

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“A delineation or explanation of something by an account setting forth the subject’s characteristics or qualities ...”

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The expression “form” had come for consideration before the Supreme Court in State of Gujarat Vs. Sakharwala Brothers, 19 STC 21 (SC). In that case under Entry 47, the Legislature has used words “any form of sugar”,. Considering the expression the Supreme Court held that it is intended to include within its ambit all forms of sugar that is to say sugar of any type or texture, colour or density or whatever name by which it is called. In that case the issue was whether “Patasa”, Harda” and “Alchidana” are forms of sugar containing more than 90% of sugar and fall within the definition of entry 47 of schedule A of the Bombay Sales Tax Act. There was no dispute that they contain more than 90% of sugar. It was however, contended that “any form of sugar” refers to any variety of sugar and that the words do not mean sugar in any form. It was urged that the word “form” has not been used in the sense of shape or size but that it has been used to indicate varieties of sugar and as such did not fall within entry No. 47 of

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Schedule A. The court rejected the contention by holding that the chemical composition of Patasa, Harda and Alchidana is the same as that of sugar. The argument that they were sweets used on festive occasions, the court held has no relevance on the question of legal classification. In other words, considering the entry, the end user test was found to be irrelevant. Considering the expression “Form” the court held that Patasa, Harda and Alchidana are forms of sugar. Rejecting the argument that the phrase means only “variety of sugar”, the court observed that if the legislature had intended to refer to “any variety of sugar”, there is no reason why it should not have used that expression in item No. 47. The court noted that though in interpretation of revenue laws, words are to be taken in their commonly received and popular sense, or according to their commercial designation, if that differs from the ordinary understanding of the word.

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The expression “in all forms” had also come up for consideration before the Supreme Court in, Trutuf Safety Glass Industries Vs. Commissioner of Sales Tax, U.P. (2007) 8 VST 661 (SC). The court held that the expression in all its forms contained an expansive description and connoted a visible aspect such as shape or mode in which a thing existed or manifested itself, species, kind or variety. The expression “in all forms” was different from the expression “all kinds”. The conceptual difference between the words “all kinds” and “in all forms’ is that the former multiplies items of the same kind while the latter multiplies the same commodity in different forms. The use of the word

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“in all forms” widens the scope of the entry.

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The court then observed as under :

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“It is settled position in law that while interpreting the entry for the purpose of taxation recourse should not be made to the scientific meaning of the terms of expressions used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them.” and thus added :

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“It is well settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent.”

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Considering therefore, the tests applied by the Supreme Court, when the Legislature has used the expression “all forms and descriptions” that the court has to give meaning to the words used by the legislature. The expression “all Forms and description” therefore, will have to be assigned in the absence of being defined under ht Act, by the ordinary dictionary meaning. We have earlier referred to both the dictionary meanings and how the Supreme Court has itself understood the expression “form”. Therefore, the word form will include any shape whether it be rectangular or square. In

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the case of “Sakharwala Brothers” the chemical composition of the substance was considered as the sucrose content had to be above 90% for the product to fall within the expression “sugar”. Does then Gypsum in its natural or synthetic form converted into board cease to be “gypsum of all forms and description”. Gypsum Board commercially may be understood as a different product from gypsum. Does it however, cease to be “gypsum of all forms and description”. The main composition continues to be gypsum. The form is a board. It is described as a gypsum Board and not “gypsum”. Considering the entry and to give meaning to the legislative intent, gypsum Board, which is gypsum in board form and described as gypsum Board will have to be held to fall under entry “C-41”.

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Considering the facts of the present case, can it be said and as now emerges does Gypsum Board, ceases to be Gypsum. As the Tribunal noted the appellant had proceeded to hold that it is not covered by the entry purely based on the classification in the Customs Tariff Act. As the tribunal rightly noted this is irrelevant for the purpose of considering the entry in the Maharashtra Sales Tax Act or VAT Act. What has to be considered is the entry in the schedule. It may also be noted that in other states also similar expressions have been used in so far as Gypsum is concerned. In so far as State of West Bengal is concerned, the Gypsum Board and Gypsum Plaster are specifically excluded. Therefore, the expression forms and description will have to mean gypsum of

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any shape and whatever description it may have in the market as long as chemical composition remains the same. In our opinion, in so far as VAT is concerned, gypsum Board will be covered by the entry C-41. We therefore, find no fault in the judgment of the tribunal.

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In the light of the above, we find no merit in this appeal. The question is answered in the affirmative in favour of the respondents and against the appellant.

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(J.H. BHATIA,J.)

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(FERDINO I. REBELLO,J.)

The Commissioner of Sales -Tax,Mum v. M/S Inaid Gypsum Ltd.

Case brief

What is this about?

What did the court decide?

The Commissioner of Sales -Tax,Mum v. M/S Inaid Gypsum Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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