judgement:
Appeal No. 4474 of 1992.
From the Judgment and order dated 28.7.1992 of the Andhra Pradesh High Court in W.P. No. 9315 of 1992.
WITH WRIT PETITION (CIVIL) NO. 763 OF 1992.
(Under Article 32 of the Constitution of India) A.K. Ganguli, Rakesh K. Khanna for R.P. Singh for the Appellant/ Petitioners.
C. Sitaramiah, Ms. Pushpa Reddy and Mrs. T.V.S. Narasimhachari for the Respondents.
J. CIVIL APPEAL NO.
4474 OF 1992.
The appellant is engaged in the manufacture and sale of products like cast iron pipes, man hole covers, bends etc.
For the assessment year 1989 90, the Commercial Tax Officer, Narayanguda Circle, Hyderabad levied sales tax upon the turn over relating to said products treating them as general goods.
He overruled the petitioner 's contention that the said products are declared goods liable to tax at the rate of 4% only.
The assessees ' appeal preferred before the Appellate Deputy Commissioner is still pending.
Evidently because no stay was granted pending the said appeal, a notice was issued to the appellant calling upon him to pay the tax assessed, against which notice he preferred a writ petition, being W.P. No. 9315 of 1992, in the High Court of Andhra Pradesh.
His main contention in the writ petition was that by virtue of G.O.Ms.
No. 383 Revenue (S) Department dated 17.4.1985, his products are 'declared goods ' and are, therefore, liable to tax only @4%.
The Division Bench of the High Court dismissed the writ petition following its earlier decision in Deccan Engineers vs State of Andhra Pradesh (reported in 1991, Vol.
12 A.P. Sales Tax Generals, 138: 84 STC 92).
In Deccan Engineers, it was held by the A.P. High Court that the expression ' cast iron ' in item(2)(i)of the Third Schedule to the Andhra Pradesh General Sales Tax Act does not include cast iron pipes, man hole covers and bends etc.
In this appeal, the correctness of the said view is questioned.
Third Schedule to the Andhra Pradesh General Sales Tax Act pertains to 436 "declared goods in respect of which a single point tax only is leviable under section 6".
Section 6 was enacted by the A.P. Legislature.to accord with sections 14 and 15 of the .
Item(2) of the third Schedule to the A.P. Act reads as follows: THIRD SCHEDULE (As amended upto 15th August 1987) Declared goods in respect of which a single point tax only is leviable under Section 6.
Description of goods Points of levy Rate of Tax (1) (2) (3) (4) (1) . . . . (2) Iron and steel, that is do *4 do to say; (3002) (i) pig iron and cast iron including ingot moulds, bottom plates, iron scrap, cast iron scrap, runner scrap and iron skill scrap; (ii) steel sends (ingots, slabs, blooms and billets of all qualities, shapes and sizes); (iii)skelp bars, tin bars, sheet bars, hoe bars and sleeper bars; (iv) steel bars (rounds, rods, squares, flats, octagons and hexagons; plain and ribbed or twisted; in coil form as well as straight length); (v) steel structurals (angles, joints, channels, tees, sheet pilling sections.
Z sections or any other rolled sections); (vi) sheets, hoops, strips and skelp, both black and galvanised, hot and cold rolled, plain and corrugated in all qualities, in straight lengths and in coil form, as rolled and in revitted condition; (vii)plates both plain and chequered in all qualities; (viii)discs, rings, forgoings and steel castings; (ix) tool, alloy and special steels of any of the above categories; (x) steel melting scrap in all forms including steel skull, turnings and borings, (xi) steel tubes, both welded and seamless, of all diameters and lengths,including tube fittings; (xii)tin plates, both not dipped and electrolytic and tin free plates; (xiii)fish plate bars, bearing plate bars,crossing sleeper bars, fish plates, bearing plates, crossing sleepers and pressed steel sleepers, rails heavy and light crane rails; (xiv)wheels, tyres, axles and wheel sets; (xv) wire rods and wires rolled, drawn, galvanised, aluminised, tinned or coated such as by copper; (xvi)defectives, rejects, cuttings or end pieces of any of the above categories.
Item (2) of the Third Schedule to the A.P. Act is an exact replica of item (iv) of section 14 of the .
According to section 15 of the Central Act, 'declared goods ' cannot be taxed at a rate exceeding 4% or at more than one stage.
The pracise question that was considered in Deccan Engineering (followed in the judgment under appeal) was whether the 'cast iron castings ' manufactured by the petitioner in that case are cast iron 'within the meaning of item (2) (i) of the Third Schedule to the A.P. Act/ Item (iv) (i) of section 14 of the C.S.T. Act.
At this stage, it is necessary to a certain precisely what does 'cast iron ' mean and how are the products of the appellant manufactured. 'Cast iron ' is defined in the Concise Oxford Dictionary as "a hard alloy of iron, carbon and silicon cast in a mould".
According to New Lexicon Webster 's dictionary of English language, the word ,cast iron ' means "an iron carbon alloy produced in a blast furnace.
It contains upto 4% carbon, and is more brittle, but more easily fused, than steel.
" According to Van Nostrand 's Scientific encyclopedia, 'cast iron ' is "primarily the product of remelting and casting pig iron".
(Interestingly, the expression 'cast iron ' with a hyphen between 'cast ' and 'iron ' has been defined separately as meaning "made of cast iron".
So far as item (iv) of section 14 is concerned, the official publication spells the expression cast iron ' without a hyphen.
Though an authorised publication of the A.P. Act is not placed before us, we presume that the printing of the said expression in the private publication placed before us represents the correct rendering it is without a hyphen.) That 'cast iron ' is different from 'cast iron 438 castings ' is brought out in the following extract from the Judgment in 'Deccan Engineering ', which is equally true in the case of the appellant as well: .LM15 "The assessee manufacturers and sells various goods mentioned earlier made from cast iron which has suffered sales tax.
The controversy is whether these several goods sold by the petitioners continue to be the same declared goods covered by the aforesaid entry or are different commercial commodity liable to levy of State Sales Tax.
The case of the Revenue is that, items sold by the petitioner are, therefore, exigible to tax as a distinct commercial commodity.
It is contended by the learned counsel for the assessee that the relevant entry in section 14 of the Central Act also IIIrd Schedule of the State Act speak of cast iron including ingots, moulds and bottom plates, iron scrap etc.
which indicates that any casting made out of cast iron also should be treated as included in the entry because of the word used 'including ' in the entry.
It is further contended that the Government of India in their letters have clarified that cast iron castings are covered by cast iron and the State Government has also issued the aforesaid G.O. subsequently under Section 42(2) of the State Act clarifying that the cast iron castings are covered within the term cast iron.
" It is thus clear that 'cast iron ' is different from 'cast iron castings ' manufactured by the appellant. 'Cast iron ' is purchased by the appellant and from that ' cast iron ', he manufactures several goods, like manhole covers, bends, cast iron pipes, etc.
In other words, 'cast iron ' used in item (iv) of section 14 of the Central Act is the material out of which the petitioner 's products are manufactured.
Position remains the same, even if the appellant purchases iron and mixes it with carbon and silicon thereby deriving 'cast iron ' and then pours it into different moulds.
In sum, 1 cast iron ' is different from the cast iron pipes, manhole covers, bends etc, manufactured and sold by the appellant.
It cannot be denied, in such a situation that the products manufactured by the appellant are, in commercial parlance, different and distinct goods from the cast iron.
Indeed this aspect is not seriously disputed by Shri Ganguli, the learned counsel for the appellant.
His case is entirely based upon certain clarifications and circulars issued both by the Central and State Governments and in particular upon an order issued by the Andhra Pradesh Government under section 42(2) of the A.P. Act namely viz., G.O. Ms. No. 383 dated 17.4.1985.
It is, therefore, necessary to refer to them.
The earliest clarification is the one contained in the latter dated 28th February, 1977 from the Department of Revenue and Banking (Revenue Wing) 439 Government of India addressed to the Finance/Revenue Secretaries of all State Governments and Union Tarritories.
It reads thus: "Subject:Clarification as to whether the term ' Cast Iron ' mentioned in section 14(iv) (i) of the would cover cast Iron casting.
In continuation of the marginally noted communications and with reference to this Department 's letter No. 24/3n3 ST.
20.11.1973, I am directed to say that the question whether the expression 'cast iron ' used in Section (iv) (i) of the will include ' Cast iron casting ' has been re examined in consultation with the Directorate General of Technical Development, Chief Chemist and the Ministry of Law, Justice & Company Affairs.
This Department has been advised that the existing expression 'cast iron ' in the aforesaid section will cover 'cast iron casting also Yours faithfully, Sd/ Deputy Secretary,to the Govt.
of India.
" Pursuant to the above clarification by the Central Government, the Commissioner of Commercial Taxes, Government of Andhra Pradesh intimated all the Deputy commissioners of commercial Taxes of the State that "Cast Iron Pipes and specials should be subjected to tax as falling under "Cast Iron" liable to tax @4% at the point of first sale in the State under entry 2 of the III Schedule of A.P.G.S.T. Act.
" To the same effect is another clarification issued by the Commissioner of Commercial Taxes, Government of Andhra Pradesh to his subordinate officials on 12.3.1982.
The next clarification from the Government of India was on 3 1st January, 1984.
It appears that the Government of Haryana had written to the Central Government stating that 'cast iron castings ' cannot be treated as declared goods and requested the Ministry of Finance, Government of India to examine the same.
It was in reply to the said query that the letter dated 3 1st January, 1984 was written by the Government of India, Ministry of Finance, Department of Revenue to the Financial Commissioner and Secretary, Government of Haryana, Excise and Taxation Department.
The letter says that the matter has been considered carefully by the Department in consultation with the Ministry of Law and the Director 440 General of Technical Development.
It set out the opinion of the Ministry of Law as also the opinion of the Director General of technical Development.
The latter 's opinion reads: "Cast iron is an alloy iron of Carbon silicon and other alloying elements if required i.e. Cast Iron Castings are covered under the term Cast Iron '.
It may also be clarified that ' cast Iron ' include Gray Iron, Chilled Malleable and Nodular Iron.
Ingot Moulds and Bottom Plates are nothing but Cast Iron Castings".
After setting out the said two opinions, the Government of India expressed its opinion in the following words: "In accordance with the above advice, cast iron castings are covered under the term "Cast Iron. . . .
State Government may kindly bring this position to the notice of Sales Tax authorities of the State.
If considered necessary this may be placed before the Committee of Commissioners of Sales Tax Commercial Tax set up under this Ministry 's letter No. Receipt of this letter may please be acknowledged.
Copies of this letter were communicated to all the State Governments and Admissions of Union Territories.
On 20th July, 1984 the Government of Andhra Pradesh, Revenue (S) Department issued a memorandum referring to the aforesaid letter of the Central Government dated 31st January, 1984 and reaffirming that " 'Cast Iron Castings ' are covered within the item Cast Iron including ingot ' in sub item (i) of item No. 2 of the Third Schedule to the Andhra Pradesh General Sales Tax Act".
On the same day the Principal Secretary,to the Government, Revenue Department addressed a letter to the Secretary, Andhra Pradesh Small Scale Industries Association, Vijayawada informing the Association that "a clarification has been issued to the Commissioner of Commercial Taxes to the effect that "cast iron castings" are covered within the term "cast iron including ingot" in sub item (i) of item No. 2 of the Third Schedule to the Andhra Pradesh General Sales Tax Act, 1957.
" On 27th March, 1984, however, the Commissioner of commercial Taxes, Government of Andhra Pradesh addressed a letter to all his subordinate officers stating that the question whether 'cast iron castings ' fall within the expression, 441 `cast iron ' is pending before the High Court of Andhra Pradesh and, therefore, the collection of arrears of tax due on 'raw castings ' is stayed for a period of one year.
At the end of one year, he said, the matter will be reexamined.
On 17th April, 1985 the Government of Andhra Pradesh issued a clarification contained in G.O.Ms.
No. 383 under sub section (2) of section 42 of the A.P. Act.
It will be appropriate to set out the G.O. in full: "GOVERNMENT OF ANDHRA PRADESH ABSTRACT Andhra Pradesh General Sales Tax Act, 1957 Levy, of Sales Tat on 'Cast Iron Casting ' Clarification issued.
REVENUE (S) DEPARTMENT.
G. O. Ms. No. 383.
Dated 17.04.1985 Read the followings: 1.
2216/SI/83 4.
20.7.84, 2.
No. 2216/83 4, dt.
20.7.84 addressed to Secretary A.P. Small Scale Industries Association, Vijayawada 3.
From the CCT 's Ref.
D.O.FE.Lr.
III (3) /1490/84, dt.
24.7.1984.
Government Memo 3166/SI/84 4, dt.
13.11.1984.
From the CCT.D.O. on CCT 'section Ref.
LI/(i) /1063/82 6.
Memo No. 3166/SI/84 5, dt.
22.2.1985.
From the commissioner of Commercial Taxes, Ref.
A3/LI/1093/82 dt.
19.3.1983.
ORDER: The Andhra Pradesh Small Scale Industries Association Vijayawada requested the Government to clarify whether 'cast iron ' and 'cast iron castings ' are one and the same commercial commodity.
442 2.
This matter was examined at length by the Government of India in consultation with Ministry of Law, (Department of legal Affairs) and Director General of Techinical Development.
The Ministry of Finance, Department of Revenue, Government of India clarified, in their letter F.No.
24/10/80/ ST.
dt. 31.1.1984.
to the effect that "cast iron castings" are covered within the term "cast iron".
Government have examined in detail the legal aspects of the issue and observe that the term "cast iron including ingot, moulds, bottom plates" as in sub item (i) of item 2 in the Third Schedule to the Andhra Pradesh Central Sales Tax covers "cast iron casting" and as such "cast iron castings" is not a different commercial commodity from the commodity "cast iron including ingot, moulds, bottom plates.
Under sub section (2) of section 42 of the Andhra Pradesh General Seles Tax Act, 1957 the Government hereby clarify that the "cast castings" are covered within the term "cast iron including ingot, moulds, bottom plates" occurred in sub item (i) of item 2 of this Third Schedule to the Andhra Pradesh General Sales Tax Act, 1957.
(emphasis added) (BY ORDER IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) C.R. NAIR, PRINCIPAL SECRETARY TO GOVERNMENT." Section 42 of the A.P. Act confers upon the State Government the power to remove difficulties.
Sub section (i) confers the said power to meet the problems arising from transition from the previous Sales Tax Act to the present Sales Tax Act.
An order under sub section (1) is required to be published in the A.P. Gazette.
Sub section (2) is general in nature.
An order under sub section (2) is not required to be published in the A.P. Gazette.
Section 42 reads: "42 Power to remove difficulties: (1) If any difficulty arises in giving effect to the provisions of this Act in consequence of the transition to the said provisions from the 443 corresponding provisions of the Acts in force immediately before the commencement of this Act, the State Government may, by order in the Andhra Pradesh Gazettle, make such provisions as appear to them to be neccessary or expedient for removing the difficulty.
(2) If any difficulty arises in giving effect to the provisions of this Act (otherwise than in relation to the transition from the provisions of the corresponding Act in force before the commencement of this Act), the State Government may, by order make such provisions, not inconsistent with the purposes of this Act, as appear to them to be necessary or expedient for removing the difficulty.
" An order issued under section 42, is undoubtedly statutory in character.
A word about the validity of section 42 of the A.P.Act.
Section 37 of the Payment of Bonus Act conferred a similar power upon the Central Government; it further declared that any such order would be final.
It was truck down by a Constitution Bench of this Court in Jalan Trading Co. vs Mill Mazdoor Sabha ; as amounting to excessive delegation of legislative power.
However.
in a subsequent decision in Gammon India Limited etc.
vs Union of India & Ors. etc.
; , it has been explained by another Constitution Bench that the decision in Jalan Trading was influenced by the words occuring at the end of section 37 of the Payment of Bonus Act to the effect that the direction of the Government issued thereunder was final.
Inasmuch as the said words are not there in section 34 of the , it was held, section 34 cannot be said to suffer from the vice of excessive delegation of legislative power.
It is meant "for giving effect to the provisions of the Act," it was held.
Sub section (2) of section 42 of the A.P. Act does no doubt not contain the aforesaid offending words, and can not therefore be characterised as invalid.
Yet, it must be remembered that the said power can be exercised "for giving effect to the provisions of the Act", and not in derogation thereof.
As we shall presently indicate it is necessary to bear this limitation in mind while examining the effect of G.O.Ms. 3,83.
So far as clarifications kirculars issued by the Central Government and/or State Government are concerned, they represent merely their understanding of the statutory provisions.
They are not binding upon the Courts.
IT is true that those clarifications and circulars were communicated to the concerned dealers but even so nothing prevents the State from recovering the tax, if in truth such tax was leviable according to law.
, There can be no estoppel against the statute.
the understanding of the Government, whether in favour or against the assessee, is 444 nothing more than its understanding and opinion.
It is doubtful whether such clarifications and circulars bind the quasi judicial functioning of the authorities under the Act.
While acting in quasi judicial capacity, they are bound by law and not by any administrative instructions, opinions, clarifications or circulars.
Law is what is declared by this Court and the High Court to wit, it is for this Court and the High Court to declare what does a particular provision of statute say, and not for the executive.
of course, the Parliament/Legislature never speaks or explains what does a provision enacted by it mean.
(See Sanjeev Coke Manufacturing Company vs Mls.
Bharat Coking Coal Ltd. and another; , Now coming to G.O. Ms. 383, it is undoubtedly of a statutorily characterbut, as explained hereinbefore the power under section 42 cannot be utilised for altering the provisions of the Act but only for giving effect to the provisions of the Act.
Since the goods manufactured by the appellant are different and distinct goods from cast iron, their sale attracts the levy created by the Act.
In such a case, the government can not say, in exercise of its power under section 42 (2) that the levy created by the Act shall not be effective or operative.
In other words, the said power cannot be utilised for dispensing with the levy created by the Act, over a class of goods or a class of persons, as the case may be.
For doing that, the power of exemption conferred by section 9 of the A.P. Act has to be exercised.
Though it is not argued before us, we tried to see the possibility but we find it difficult to relate the order in G.O. Ms. 383 to the power of the Government under section 9, apart from the fact that the nature and character of the power under section 42 is different from the one conferred by Section 9.
As exemption under section 9 has to be granted not only by a notification, it is also required to be published in the Andhra Pradesh Gazette.
It is not suggested, nor is it brought to our notice, that G.O. Ms. 383 was published in the Andhra Pradesh Gazette.
This does not, however, preclude the Government of Andhra Pradesh from exercising the said power of exemption, in accordance with law, if it is so advised.
We need express no opinion on that score.
The learned counsel for the appellant brought to our notice that the very same Division Bench which rendered the decision in Deccan Engineers had rendered another decision in Tax Revision Case No. 93 of 1990 (The State of A.P. vs Pratap Steel) applying G.O. Ms. 383 and giving relief to the dealer.
It is argued that the Division Bench ought to have taken the same view in Deccan Engineers as well.
We have perused the decision in Pratap Steel.
It is a short judgment dismissing the Revision applying G.O.Ms. 383.
It does not appear that the matter was argued in the manner it was in Deccan Engineers.
The said argument, therefore, cannot advance the case of the appellant.
445 In this view of the matter in is not necessary for us to go into the question wether the word including in section 14 (iv) (i) of and item (2) (i) of the Third Schedule to the A.P. Act has the effect of making the said subclause exhaustive or otherwise.
Accordingly, we bold that the cast iron castings manufactured by the appellants do not fall within the expression 'cast iron ' in Entry 2(i) of the Third Schedule of the Andhra Pradesh General Sales Tax Act or within Section 14 (iv)(i) of the .
The appeal accordingly fails and is dismissed.
No order as to costs.
W. P. No.763 OF 1992 This writ petition preferred under Article 32 of the Constitution is directed against the notices issued by the assessing authority proposing to reopen the assessments of the petitioner/appellant with respect to earlier assessment years and also seeking to apply the principle of Deccan Engineers to the pending assessments.
For the reasons stated hereinabove this writ petition fails and is accordingly dismissed.
No costs.
G.S.B. Appeal and petition dismissed.

summary:
Section 6 of Andhra Pradesh General Sales Tax Act, 1957 provides a single point tax @ 4 % on declared goods, mentioned in the Third Schedule to that Act.
Item (2) of the Third Schedule describes the articles made of Iron & steel which fall in the category of 'declared goods '; sub item (i) of Item (2) pertains to "pig iron and cast iron including ingot moulds, bottom plates, iron scrap, cast iron scrap, runner scrap and iron skill scrap". 'Cast iron ' is defined in the Concise Oxford Dictionary as "a hard alloy of iron, carbon and silicon cast in a mould".
On February 28,1977 the Department of Revenue & Banking (Revenue Wing) Government of India issued a letter to all Finance/ Revenue Secretaries of all State Governments and Union Territories, explaining the term 'Cast Iron ' mentioned in section 14 (iv) (i) of the .
This letter said to have been issued in consultation with the Directorate General of Technical Development,_Chief Chemist and the Ministry of Law, Justice & Company Affairs, extended the scope of the expression 'cast iron ' to "cover 'cast iron casting ' also".
Based on similar clarifications, the Department of Revenue (S) Department of the Government of Andhra Pradesh issued a clarificatory order under section 42(2) of the Act vide GOMs No. 383 dated April 17,1985 extending the scope of the expression 'cast iron ' to include "cast iron castings".
This order was also published in the State 's official Gazette.
Section 42 (2) of A.P. General Sales Tax Act empowers the State Government to make, by an order, such provisions as appear to them necessary & expedient to remove difficulty in the implementation of this Act, provided that these are not inconsistent with the provisions of the Act.
The appellant manufactures and sells products like cast iron pipes,man 434 hole covers, etc.
He claims that read with the above clarificatory orders, he is liable to pay only 4% sales Tax under Section 6 of the A.P. General Sales Tax ct But, for the assessment year 1989 90 the Commercial Tax Officer C.T.O.) Narayanaguda Circle, Hyderabad levied Sales Tax on the said products at the rate applicable to general goods.
The C.T.O. having overruled the appellant 's contentions, the.
latter appealed to the Appellate Deputy Commissioner.
During the pendency of appeal a notice was issued to the appellant calling upon him to pay the tax assessed, since no stay has been granted in appeal.
Against this notice the appellant filed a writ petition No. 9315 of 1992 in the High Court of Andhra Pradesh.
The Division Bench of the High Court rejected the appellant 's main contention that his products were covered by Item (2) (i)of the Third Schedule to the A.P. General Sales Tax Act, and dismissed the writ petition.
Vide Civil Appeal No. 4474 of 1992 (with Writ Petition(Civil) No. 763 of 1992).
The appellant questions before this Court the above view of the High Court.
Rejecting the appellant 's contentions and upholding the judgment and order of the High Court, this Court, HELD: Law is what is declared by this Court and the High Court.
An executive authority can, at best, only opine its own understanding of the statute; such opinion is not binding upon the quasi judicial functioning of the authorities under the Act.
(444 B) Sanjeev Coke Manufacturing Company vs M/s Bharat Cooking Coal lid.
and another; , , referred to.
The Government cannot use the powers, conferred by section 42 (2) of the A.P. General Sales Tax Act, to dispense with a levy created by the Act.
(444D) The Van Nostrand 's Scientific Encyclopaedia treats 'cast iron ' 'and cast iron ' (with a hyphen) as two different words.
The Act speaks of 'cast iron ' (that is without a hyphen between the two words) (437 G H) Hence, the expression 'castiron 'in Item (2) (i) of A.P. General Sales Tax Act does not include the products cast iron pipes, man hole covers, bends etc.
(437 F) Deccan Engineers vs State of Andhra Pradesh.
1991 Vo. 12 A.P. Sales Tax Journal 138 referred to.


judgement:
l Appeal Nos.
335 342/1982.
From the Judgment and Order dated 18.8.1981 of the Punjab and Haryana High Court in Regular First Appeal Nos.
2605, 2604,2606,2610,306,308, 10 and 11 of 1980.
D.V. Sehgal, L.R. Singh and Yunus Malik for the Appellants.
Ranjit Kumar and G.K. Bansal (NP) for the Respondents.
J.: By Notification published in the Haryana State Gazette on October 12,1976, under section4(1) of Land Acquisition Act 1 of 1894 for short 'the Act ', the respondent Union Territory of Chandigarh acquired a total extent of 70.09 acres of land situated in Manimajra near Chandigarh for a public purpose, namely, to set up Brick Kilns therein.
The lands comprised in different Khasra numbers within H.B. No. 375, out of which 63.09 acres are Abi cultivated lands, the rest are Barani (rainfed land) and, ghair munkin (waste land) bouldars, trenches etc.
By award dated January II, 1977, the Collector fixed a sum of Rs. 23,600 as market value of Abi, Rs. 17,000 per acre to Barani and Rs. 12,000 to Ghair Munkin lands.
On reference under section 18, the Civil Court enhanced the compensation to Rs. 33,600 per acre to Abi lands and no enhancement to other categories with solatium at 15 per cent and interest at 6 percent per annum on the 374 enhanced compensation from the date of taking possession till date of payment.
On appeal the learned Single Judge in R.F.A. No. 2605 of 1980 etc, by judgment dated August 18, 1981 confirmed the same.
Thus these appeals by special leave.
As common questions of law arise for decision, they are disposed of by common judgment.
Appellants ' contentions is that the acquired lands possessed of potential value for residential and commercial purposes and there is no justification for classification of the lands and all the lands are entitled to parity to determine the market value.
By notification dated June 30, 1976 in the same village under the same H.B. No. 375, 54.37 acres were acquired for construction of Motor Market Complex.
The Collector and the Civil Court awarded the same market values as were fixed in these appeals but the learned Single judge denied parity of market value to these lands while enhancing the market value at Rs. 75,000 per acre to the similar lands in belting No. 2 and awarded @Rs. 3, 72,200 to the lands abutting the main road upto a depth of 140 feet in other case.
Therein the Single Judge relied upon exhibit P28 of the year 1972 in which 17 marlas of land was sold @Rs. 75,000 per acre, Having relied upon the same and having enhanced the market value, the same yardstick should have been applied in awarding market value to the lands under acquisition.
The learned counsel also placed strong reliance on 6 mutation entries which would show that the market value of the lands ranges between Rs. 1,16,000 to 1,60,000 per acre and the appellants, therefore, are entitled to compensation at least @ Rs. 75,000 as claimed by them.
He also contended that having found that the lands are possessed of potential value being similar to the lands in other appeal, the appellants are entitled to parity in determination of the market value as well.
The Haryana Govt, acquired by notification dated January 8,1971 vast extent of lands in Judian Village for Mansa Housing and Commercial Complex and thereunder Abi/irrigated lands were awarded at a sum of Rs. 28,800 per acre which was confirmed by the High Court.
After five years the notification was issued on October 12, 1976, the Court should have taken note of steady rise in prices and have suitably enhanced the market value.
Since no one was appearing for the respondent, we sent for Mr. Ranjit Kumar, the previous standing counsel for the Union Territory, Chandigarh and requested him to assist the court.
Accordingly he has meticulously analysed the entire evidence and rendered valuable assistance.
He contended that the lands are situated beyond railway line on North West and 1/2 k.m.
to the motor market on the other side of the road.
The lands are nearer to Sukhna Choe (lake) at a distance of one furlong.
The mutation record is not admissible as none, connected with the sale transactions, were examined to prove the documents; the grounds for sales, comparative advantages and their respective situation.
The motor market is situated in a developed area on the Eastern side of the road and the lands in these cases are 375 located away from those lands.
Shri Ranjit also contended that lands in Judian Village for Mansa Housing and Commercial Complex were nearer to abadi possessing better amenities and they do not afford any comparable grounds.
He contended that the lands for canalisation of Sukhna Choe was acquired by notification dated March 21, 1972 and the Reference Court upheld the award of the Collector at Rs. 15,525 for Abi lands which was confirmed by the High Court.
The location being very near to the lands under requisition, they offer reasonable base to fix market value.
Notification was issued under s.6 of the Punjab New Capital (Perefery) Control Act, 1952, freezing development of the lands situated within a radious of 10 miles from Chandigarh boundary for any residential and commercial purposes.
Therefore, they are not possessed of any potential value.
The learned Judge on the same day decided both the cases upholding the award of the Civil Court in these cases while enhancing the market value in motor market cases relied on by the appellants.
He was aware of the location and differential value between two types of land.
Therefore, he was not inclined to enhance the market value of the land under acquisition.
The first question that arises for consideration is whether the High Court has committed any legal error in affirming the market value determined by the Reference Court.
The Dist, Judge, Chandigarh in L.P.J. No. 105/70 and batch, found that the total extent of the land acquired is 70.09 acres, 560 Kanal 15 mawla, out of which 63.91 (51 i Kanal) 6 Marla are Abi land and 4.22 (33 Kanal 15 Marla) is Barani land and the rest are Ghair Munkin lands.
It is admitted by the witnesses that the acquired land is nearer to the railway track and also situated at a distance of 1 1/2 k.m.
from timber and motor market.
They are situated in wide area with the population of about 3000 3500.
There are about 200 shops situated in Manimazra town.
The acquired land is towards north western side of Manimazra.
The railway line is 2 to 3 furlong from Manimaira on the northwestern side.
They are also situated near the boundary of Chandigarh and one furlong from Sukhna Choe.
It was also admitted that part of the land is situated in Sector 26.
Thus it could be seen that the lands are situated very near to Chandigarh.
Neither the appellants nor the Land Acquisition Officer had examined witnesses in proof of the sale transactions referred in mutation entries exhibit P4 to P8 on behalf of the appellants and R1 and R2 on behalf of the respondent.
It is settled law that claimant is entitled to just and reasonable compensation and under section 23 to determine the market value of the lands the prevailing prices as on the date of the publication of the notification under section 4(1), the sale transaction of the same lands or sales of lands situated in the neighbourhood would furnish as evidence of comparable sales.
The price which a hypothetical willing vendor might reasonably expects to obtain from a willing purchaser would form the basis to fix the market 376 value.
It would be possible to have reliable evidence when sale transactions are proved by either the vendor or the vendee and if either of them was not available, the attesting witness who had personal knowledge of the transaction is to be examined by producing either the original sale deed or certified copies thereof as evidence.
Under section 5 1A of the Act as amended in 1984 the certified copies have been permitted to be brought on record as evidence of sale transaction recorded therein.
The examination of the witnesses is to find that the sale transactions are bonafide and genuine transactions between willing vendor and willing vendee as reasonable prudent men and the price mentioned is not throw away price at arms length or depressed sales or brought into existence to inflate market value ,of the lands under acquisition and the sales are accommodating one.
Equally it must be brought on record the comparative nature of the lands covered under the sale deed and the acquired lands whether adjacent or actual distance or possessed of similar advantages and whether transactions themselves are genuine and bonafide trans actions.
This proposition of law, since settled law, in fairness, has not been disputed across the bar.
The contention is that at the relevant time it was not being insisted upon.
Therefore, none of the witnesses were called to prove the sale deeds or to prove the sale transactions.
Therefore , when evidence of potential value is available, the same could be considered.
We find merit in the contention.
At one time we thought of remanding the cases but we find that it would be needless prologation and the complexion on ground by now would have been completely changed.
In view of the above settled legal position and the circumstances, the documentary evidence of sale transactions or in the mutation entries on either side are clearly not admissible and therefore, they cannot be looked into, and are accordingly excluded from consideration.
The only question, therefore, is whether the lands are possessed of potential value and whether the same treatment could be meted out to Abi and Barani lands.
Ghair Munkin land stands on a different footing and, therefore, they cannot be equated with the Abi and Barani lands.
The situation of the lands as extracted here in before clearly shows that the lands are situated very close to developed Chandigarh planned city and are very near to Sukhna Lake and are also nearer to railway track.
They are situated within the freezed zone for future potential development of the city.
Thereby, it is clear that though the acquisition was for establishment of Brick Kilns, by its very nature may not immediately be capable of being used for residential or commercial purposes, but certainly possessed of potential value for future development as residential and commercial purposes.
Then what would be the reasonable market value prevailing as on the date of notification.
As rightly contended by Shri Ranjit Kumar that there is a distinction between the lands acquired for motor market or Mansa Housing Complex on one hand and the lands under acquisition on the other hand, though the lands are Abi 377 lands.
The acquired lands are situated on the western side of Manimazra Panchkula road and the motor market was situated on the other side of the road.
Therefore, the market value of the land acquired for motor market do not tender any assistance as comparable prices.
Obviously for that reason the same learned Single Judge while deciding both the appeals on the same day declined to enhance the market value to these lands while he awarded to lands in 2nd belt at Rs. 75,000 per acre.
We have no information whether any appeal was filed against that judgment.
But certainly the facts of these cases would assist us to assess a fair and reasonable compensation in fixing the market value though an amount of guess work is involved.
We are conscious of the fact that it should not be founded on feats of imagination hedged with undue emphasis of compulsory deprivation of the possession of the land of the appellants, for the exercise of State 's power of eminent domain, statutory solatium is the premium the state pays.
Therefore, the approach should be pragmatic to recompense the appellants to secure alternative lands or to invest in profitable business for rehabilitation.
It is seen that the Reference Court awarded a sum of Rs.33,600 per acre to Abi land.
There is a steady rise in prices as reflected in the judgment in the other appeals relied on by the learned counsel for appellants.
The High Court also recorded a.finding in that behalf in those appeals.
The lands are situated in the same H.B. No. 375, though at different places and distance having future potential development.
Considering the totality of the facts and circumstances we find that market value @ Rs. 42,000 per acre would be just and fair.
This value should be for Abi and for Barani lands at Rs. 38,000 per acre and the market value to ghair munkin land at Rs. 12,000 per acre awarded by the Civil Court is confirmed.
The appellants are entitle to Solatium and interest on the enhanced market value at 15 per cent and 6 per cent respectively from the date of taking possession till the date of payment as the award and the order of the Civil Court are prior to the periods mentioned in the Amendment Act 1984 came into force.
In the circumstances parties are directed to bear their own costs.
G.N. Appeals Partly allowed.

dataset_name: IN-Abs

summary:
The Respondents acquired some lands for setting up Brick Kilns.
The lands consisted of Abi (cultivated land), Barani (rainfed land) and ghair munkin (waste land) and the Collector fixed the compensation @ at Rs. 23,600, Rs. 17,000 and Rs. 12,000 per acre of the respective lands.
On a reference the Civil Court enhanced the compensation to Rs.33,600 per acre for Abi lands.
No enhancement was allowed in respect of the other categories of land.
It however allowed solatium at 15 % and interest at 6 % p.a. on the enhanced compensation.
On appeal, a Single Judge of the High Court confirmed the same.
These appeals were filed against the said Judgment of the High Court.
The appellants contended that the acquired lands had the potential value for residential and commercial purposes and there was no justification for classification of the lands and all the lands shall be treated at party in determination of market value; that in a similar case, the market value was enhanced to Rs. 75,000 per acre and in view of the fact that certain mutation entries showed a market value of similar lands ranging from Rs. 1,16,000 to Rs. 1,60,000, per acre the appellants claimed for compensation of at least at Rs. 75,000 per acre.
On behalf of the Respondents it was contended that the mutation record was not admissible as no one connected with the sale transactions was examined to prove the documents, the ground for sales, comparative advantages and their respective situation; that the lands possessed comparable or better amenities and whether the lands are very near to the lands under 372 acquisition.
The compensation awarded by the Collector at the rate of Rs. 15,525 per acre was upheld by the Reference Court, and this offered ' a reasonable base to fix the market value of the lands under acquisition.
Partly allowing the appeals, this Court, HELD: 1.
Neither the appellants nor the Land Acquisition Officer had examined witnesses in proof of the sale transactions referred in the mutation entries.
It is settled law that a claimant is entitled to just and reasonable compensation under section 23, To determine the market value of the lands, it is necessary to examine witnesses to prove the prevailing prices as on the date of publication of the notification under section 4(1).
The sale transaction of the same Lands or sales of lands situated in the neighbourhood possessed of same or similar advantages would furnish as evidence of comparable sales.
It would be possible to have reliable evidence when sale transactions are proved by either the vendor or the vendee and if either of them was not available, the attesting witness who had personal knowledge of the transactions is to be examined by producing either the original sale deed or certified copies thereof as evidence.
Since at the relevant time it was not being insisted upon, none of the witnesses were called to prove the sale deeds or to prove the sale transactions.
Thus, the documentary evidence of sale transactions or the mutation entries on either side are clearly not admissible and therefore, they cannot be looked into, and are accordingly excluded from consideration.
(375 GH, 376 (H E) 2.
The situation of the lands dearly shows that the lands are situated very dose to developed Chandigarh planned city and are very near to Sukha Lake and the railway track.
They are situated within the freezed zone for future potential development of the city.
Though the acquisition was for establishment of Brick Kilns, by its very nature the lands may not immediately be capable of being used for residential or commercial purposes, but certainly possessed of potential value for future development as residential and commercial purposes.
There is a distinction between the lands acquired for Motor Market or Mansa Housing Complex on the one hand and the lands under acquisition on the other hand, though the lands are Abi lands going by the situation of the lands, the market value of the land acquired for motor market do not render any assistance as a comparable price.
This would be of assistance to assess a fair and reasonable compensation in fixing the market value though an amount of guess work is involved.
This Court is conscious of the fact that it should not be founded on feats of imagination hedged with 373 undue emphasis of compulsory deprivation of the possession of the lands of the appellant.
For the exercise of State 's power of eminent domain statutory solatium is the premium the State pays.
Therefore, the approach should he pragmatic to recompense the appellants to secure alternative lands or to invest in profitable business for rehabilitation.
It is seen that the Reference Court awarded a sum of Rs. 33,600 per acre to Abi land.
No doubt there is a steady rise in prices of lands.
Considering the totality of the facts and circumstances, the market value @ Rs. 42,000 per acre would be just and fair for Abi lands and at Rs. 38,000 per acre for Barani lands.
The market value of ghair munkin land at Rs. 12,000 per acre awarded by the Civil Court is confirmed.
The appellants are entitled to solatium and interest on the inhanced market value at 15 per cent and 6 per cent respectively from the date of taking possession till the date of payment as the award and the order of the Civil Court are prior to the periods mentioned in the Amendment Act 1984 came into force,.
(376G,H, 371 A F))


judgement:
Appeal No. 2348 of 1993.
From the Judgment and Order dated 13.7.1992 of the Central Administrative Tribunal, Guahati in O.A. No. 33/91.
Ms. K. Amareswari, B.P. Sarathy and C.V. Subba Rao for the Appellants.
P.K. Goswami, Kailash Vasdev, Ms. Lira Goswami and Ms. Alpana Poddar for the Respondent.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.
Heard counsel for the parties.
Leave granted.
Respondent is a Garden Curator in the Office of the Scientist SE, Botanical Survey of India, Eastern Circle, Shillong.
By order dated January 29, 1991 he was transferred from Shillong to Pauri (Uttar Pradesh) by the Senior Administrative Officer, office of the Director, Botanical Survey of India, (Ministry of Environment and Forests, Government of India).
As many as 19 persons were transferred under the said order including the respondent.
The respondent has been working in Shillong since the year 1979.
The respondent approached the Gauhati Bench of the Central Administrative Tribunal (Original Application No. 33 of 1991) questioning the order of his transfer.
He submitted that his wife is also employed at Shillong in and off ice of the Central Government, that his children are studying at Shillong and further that he himself had suffered back bone fracture injuries some time ago.
He submitted that the guidelines contained in Government of India O.M. dated 3.4.1986 have not been kept in mind while ordering his transfer.
tie complained that some other officials who have been serving at Shillong for a longer period, have been allowed to continue at Shillong.
He attributed 'mischief ' to his Controller Officer, Shri B.M. Wadhwa (third respondent in the O.M.).
In the counter affidavit filed by the respondents, they submitted that the transfer was ordered on administrative grounds and is unexceptionable.
The learned Single Member of the Central Administrative Tribunal quashed the order of transfer on the following reasoning: the decisions of the Courts establish that the power of transfer is not an unfettered one but is circumscribed by various circulars/guidelines contained in the administrative instructions issued 430 by the Government.
An order of transfer can be interdicted if it is discriminatory.
The said principles are applicable to the case of the respondent.
Further "in the matter of considering transfer of an individual officer, the Office Memorandum dated 3.4.1986, educational dislocation of the children and health ground, if all present, deserve special consideration not to pass the order." Having said so the learned Member recorded the following finding: "In view of the above facts and circumstances and findings it is held unhesitatingly that the transfer order No. BSI.
80/5/80 Estt.
dated 29.1.1991 in respect of applicant S.L.Abbas was malafide and liable to be quashed.
" The Union of India has preferred this appeal.
An order of transfer is an incident of Government Service.
Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority".
Fundemental Rule 15 says that "the President may transfer a government servant from one post to another".
That the respondent is liable to transfer anywhere in India is not in dispute.
It is not the case of the respondent that order of his transfer is vitiated by mala fides on the part of the authority making the order, though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later.
The respondent attributed"mischief"to his immediate superior who had nothing to do with his transfer.
All he says is that he should not be transferred because his wife is working at shillong, his children are studying there and also because his health had suffered a set back some time ago.
He relies upon certain executive instructions issued by the Government in that behalf.
Those instructions are in the nature of guidelines.
They do not have statutory force.
Who should be transferred where, is a matter for the appropriate authority to decide.
Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it.
While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject.
Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration.
The guidelines say that as far as possible, husband and wife must be posted at the same place.
The said guideline however does not confer upon the government employee a legally enforceable right.
The jurisdication of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the constitution of India in service matters.
This is evident from a persual of Article 323 A of the constitution.
The constraints and norms which the High Court observes while exercising the 431 said jurisdiction apply equally to the Tribunal created under Article 323 A. (We find it all the more surprising that the learned Single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction.) The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer.
It cannot substitute its own judgment for that of the authority competent to transfer.
In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer.
The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority).
Shri Goswami, learned counsel for the respondent relies upon the decision of this Court in Bank of India vs Jagjit Singh Mehta [1992] 1 S.C.C.306 rendered by a Bench of which one of us (J.S. VermaJ.) was a member.
On a perusal of the judgment, we do not think it supports the respondent in any manner.
It is observed therein: "There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different.
The desirability of such a course is obvious.
However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs.
In the case of all India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other 's posting.
While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees.
In such a case the couple have to make their choice at the threshold between career prospects and family life.
After giving preference to the career prospects by accepting such a promotion or any appointment in an all India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, 'they cannot as of right claim to be relieved of the ordinary incidents of all India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. . . . . . . .
No doubt 432 the guidelines requires the two spouses to he posted at one pi" as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible.
The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees." (emphasis added) The said observations in fact tend to negative the respondent 's contentions instead of supporting them.
The judgment also does not support the Respondents ' contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor.
It does not also say that the Court or the Tribunal can quash the order of transfer, if any of the administrative instructions/guidelines are not followed, much less can it be charactrised as malafide for that reason.
To reiterate, the order of transfer can be questioned in a court or Tribunal only where it is passed malafide or where it is made in violation of the statutory provisions.
For the above reasons, the appeal is allowed.
The judgment under appeal is set aside.
There shall be no order as to costs.
N.P.V. Appeal Allowed.

summary:
The respondent, a Central Government employee, who was transferred from one place to another, challenged the order of transfer on the grounds that: his wife was also employed at the same place in a Central Government office; his children were also studying there; he himself had suffered backbone fracture injuries some time ago; the guidelines contained in Government of India O.M. dated 3.4.1986 had not been kept in mind while ordering his transfer; some other officials, who had been serving at the same place for a longer period than the respondent had been allowed to continue and his transfer was due to the mischief of his Controlling Officer.
In the counter affidavit filed by the appellants, it was submitted that the transfer was ordered on administrative grounds and was unexceptionable.
, A Single Member of the Central Administrative Tribunal quashed the order of transfer on the ground that the power of transfer was not an unfettered one, but was circumscribed by various circulars/ guidelines contained in the administrative instructions issued by the Government and an order of transfer could be interdicted if it was discriminatory, that in the matter of considering transfer of an individual officer, the Office Memorandum dated 3.4.1986, educational dislocation of the children and health ground,if present deserved special consideration and that in view of the facts and circumstances of the case the transfer order in question in respect of the respondent was mala fide.
428 Allowing the appeal, preferred by the Union of India and others, this Court, HELD: 1.1 An order of transfer is an incidence of Government servie.
Who should be transferred where is a matter for the appropriate authority to decide.
Unless the order of transfer is vitiated by malafides or is made in violation of statutory provisions, the Court cannot interfere with it.
There is no doubt that, while ordering the transfer the authority must keep in mind the guidelines issued by the Government on the subject.
Similarly, if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration.
The guidelines say that as far as possible, the husband and the wife must be posted at the same place.
The said guideline, however, does not confer upon the government employee a legally enforceable right.
Executive instructions issued by the Government are in the nature of guidelines.
They do not have statutory force.
[430 C E] 1.2.
There is no dispute that the respondent is liable to transfer anywhere in India.
It is not the case of the respondent that the order of his transfer was vitiated by mala fides on the part of the authority making the order, though the Tribunal says so, merely because certain guidelines issued by the Central Government were not followed.
The immediate superior of unit, against whom mischief had been attributed by the respondent, has nothing to do with his transfer.
[430 F] 2.1.
The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution of India in service matters, as is evident from Article 323 A of the Constitution.
The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323A.
The Administrative Tribunal is not an Appellate Authority sitting in judgment over the order; of transfer.
It cannot substitute its own judgment for that of the authority competent to transfer.
[430 H,431 A] 2.2.
In the instant case, the Tribunal has dearly exceeded its jurisdiction in interfering with the order of transfer.
The order of the Tribunal reads as if it were sifting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority).
[431 B] Bank of India vs Jagjit Singh Mehta, ; , explained.


judgement:
Appeal No. 2702 of 1984.
From the Judgment and Order dated 20.6.1984 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. ED (SB) 2714/83 C. Harish N. Salve, Ashok H. Desai, Miss Meenakshi Grover, Rajiv Dutta, Ravinder Narain, Miss Amrit and Miss Punita Singh for JBD & Co. for the Appellants.
A.K. Ganguli, k.
Swami, Dilip Tandon and P. Parameshwaran for the Respondents.
J.: Common questions of law arose for decision in these 8 appeals need disposal by this judgment.
The question relates to classification of "toilet soap" in Excise item 15 of the First Schedule to the Central Excise and Salt Act 1 of 1944 as amended in 1964 for short the Act '.
In addition, in C.A. Nos. 81 3/86, 3632 34/88 and 1 102/89 sequal to its finding, they claim refund of excess excise duty.
The facts in C.A. Nos. 2702/84 and 2785/84 are sufficient for disposal.
The appellants laid before Assiatant Collect or classification list claiming "toilet soaps" Kalpa and Oasis, in other appeals Jai, O.K. Moti, Rain drop, Gold and Ria as bath soaps under Tariff item 15 (1) of the First Schedule (Household).
By notice dated August 31, 1982, the Assistant Collector called upon the appellants to show cause as to why they cannot be classified under tariff item 15(2) other sorts and to levy excise duty at 15 per cent ad valorem (as then stood).
The appellants after filing their reply thereto and having had personal hearing, by proceeding dated November 27, 1982, the Asstt.
Collector classified toilet soaps as "other sorts" under tariff item 15(2) of the Schedule.
On appeal the Collector by Order dated January 21, 1983 classified them under tariff item No. 15(1) "household" On second appeal, the CEGAT by its order dated June 20, 1984 reversed the appellate order and upheld the Asstt.
Collector 's order, Same is the case with regard to all other appeals except resultant claim for refund.
In 1954 tariff item No. 15A was introduced in the First Schedule of the Act thus: "15(A) 'Soap ' all varieties of the product known commercially as soap 1.
Soap, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power or of steam for heating: (1) Soap, household and laundry: (a) Plain bars of not less than Rupees one pound in weight fives & annas four per cwt.
(b) ther sorts Rupees six & annas 382 two per cwt.
(2) Soap toilet Rupees fourteen per cwt.
(3) Soap, other then household Rupees and laundry or toilet.
fourteen per cwt.
This entry as amended in 1964 reads thus " 15 'Soap ' means all varieties of product known commercially as soap : (1)Soap, household and 20 per cent Laundary ad valorem (2) Other sorts 20 per cent ad valorem (Ad valorem rate of tarrif varies from time to time as per amendments).
Later it was amended in the year 1979 empowering the Govt.
to grant exemption under section 8 of the Act.
The details thereof are not material for the purpose of these cases.
It is seen that in 1954 in Tariff entry 15A "soap" means all varieties of the product known commercially as soap.
Item 1 provided that soap in relation to its manufacture with the aid of power or of steam for heating, they were classified as Plain bars, other sorts, toilet soaps and soap, other then husehold or laundry or toilet.
While amending the entry in 1964 the language couched therein as seen earliar is thus: 'soap ' means all varities of products known commercially as soap.
1) Soap, household and Laundry 2) "Other sorts" and graded ad valorem tariff has been prescribed.
It is seen that household and laundry soap was subjected to levy of tariff at a lesser rate than other sorts" ad valorem.
The contention of Sri Ganguli, the learned Senior counsel for the union is that statute always kept distinction between soap "household and laundry" and "other sorts".
Toilet soap was kept in the packet of other sorts.
Household and laundry soaps are being used for cleaning household articles and utensils and washing the clothes while toilet soaps are for bathing purpose.
The latter compose of diverse varieties, based on personal liking and 383 taste, are being used.
They are commercially known as other sorts but not household.
The legislative history furnishes unimpeachable evidence that soaps used for household and laundry are compendiously treated as a class and are subjected to imposition of lesser tariff.
They receive their colour from each other as compendiously known in the commercial parlance that the former are meant for use for household purposes while toilet soap are for use for bath and are subject to higher rate of tariff at par with soap for commercial and industrial purposes.
They bear higher rate of tariff.
The explanatory note appended to the Finance Bill 1964 would furnish the legislative intendment to amend the tariff item and the treatment meted out to toilet soap for tariff purpose.
It is accordingly understood by the department and also by the trade circles.
The appellants too intially treated toilet soap as other sorts but later, on legal opinion, they claimed them as household soaps.
The construction adopted by the tribunal is consistent with the standard works on soaps.
M/s Harish Salve and Ashok Desai, contended that in 1954 toilet soap was treated as an independent tariff sub item and household and laundry soaps were treated as separate entity and separately subjected to varied rates of tariff.
On amendment in 1964 toilet soap was omitted as a separate entity and brought toilet soap as part of genus, namely, soap "house hold", as a toilet soap is always a household soap.
Therefore, the reliance by revenue on varied rates of duty or departmental contemporenia expositio have no bearing.
The object of classification does not show that toilet soap is not part of the genus, "soap household" unless it is established otherwise.
The question, therefore, emerges whether "toilet soap" would be household soap within the meaning of Tariff item 15(1) of the Schedule.
Undoubtedly true, as contended by Sri Ganguli, that preceding amendment toilet soap was classified separately under sub item 2 and assessed to duty accordingly.
But by amendment the distinction was wiped out and toilet soap was brought into common hotchpoch.
So the contention that the variety of products known commercially as soaps have been enumerated or included compendiously, retaining their original colour even after the amendment made in the Finance Act, 1964 and falls into "other sorts" same genus, prima facie, though attractive, on consideration from proper perspective and in its setting in common commercial parlance, soap "toilet" appears to fall in household in sub item 1 of tariff item 15 of the Schedule.
It is true that the heading "soaps" are commercially known to be of diverse variety.
The provisions of the Tariff do not determine the relevant entity ofthe goods.
They deal whether and under what entry, the indentified entity attracts duty.
The goods are to be identified and then to find the appropriate heading, sub heading under which the identified goods/products would be classified.
To find the appropriate classification description employed in the tariff nomenclature should 384 be appreciated having regard to the terms of the headings read with the relevant provisions or statutory rules or interpretation put up thereon.
For exigibility ' to excise duty the entity must be specified in positive terms under a particular tariff entry.
In its absence be deduced from a proper construction of the tariff entry.
There is neither intendment nor equity in a taxing statute.
Nothing is implied.
Neither can we insert nor anything can we delete but it should be interpreted and construed as per the words the legislature has chosen to employ.
in the Act or Rules.
There is no room for assumption or presumptions.
The object of the parliament has to be gathered from the language used in the statute.
The contention that toilet soap is commercially different from household and laundry soaps, as could be seen from the opening words of entry 15, needs careful analysis.
It is well, at the outset, to guard against confusion between the meaning and the legal effect of an expression used in a statute.
Where the words of the statute are plain and clear, there is no room for applying any of the principles of interpretation which are merely presumption in cases of ambiguity in the statute.
The court would interpret them as they stand.
The object and purpose has to be gathered from such word themselves.
Words should not be regarded as being surplus nor be rendered Otiose.
Strictly speaking there is no place in such cases for interpretation or construction except where the words of statute admit of two meanings.
The safer and more correct course to deal with a question of construction of statute is to take the words themselves and arrive, if possible, at their meaning, without, in the first place, reference to cases for theories of construction.
Let us, therefore, consider the meaning of the word soap "household".
The word household signifies a family living together.
In the simplistic language toilet soap being used by the family as household soap is too simplification to reach a conclusion.
Therefore, one has to gather its meaning in the legal setting to discover the object which the Act seeks to serve and the purpose of the amendment brought about.
The task of interpretation of the statute is not a mechanical one.
It is more than mere reading of mathametical formula.
It is an attempt to discover the intention of the legislature from the language used by it, keeping always in mind, that the language is at best an imperfect instrument for the expression of actual human thoughts.
it is also idle to expect that the draftman drafted it with divine prescience and perfect and unequivocal clarity.
Therefore, court would endeavour to eschew literal construction if it produces manifest absurdity or unjust result.
In Manmohad Das vs Vishnu Das; , a Constitution bench held as follows: "The ordinary rule of construction is the provision of a statute must be construed in accordance with the language used therein unless there are compelling reasons, such as, where a leteral construction would reduce the provision to absurdity or prevent manifest intention of the legislature from being carried out".
385 In Ramavatar Budhaiprasad etc.
vs Assit.
Sales Tax Officer, Akola and Anr. ; , another Constitution Bench was to consider whether "betal leaves" are "vegetable" within the meaning of item 6 of the 11 Schedule to the M.P. Sales Tax Act.
It was contended that betal leaves are vegetable and, therefore, they are exempted from the payment of sales tax.
While construing item 6, this court held that the words must be construed not in any technical sense nor from the botanical point of view but as, understood in common parlance.
It has not been defined in the Act and being a word of every day use it must be construed in its popular sense meaning "that sense which people conversant with the subject matter with which the statute is dealing would attribute.
to it".
It is to be construed as understood in common language.
Therefore, betal leaves were held to be not vegetable.
The term 'vegetables ' is to be understood as commonly understood denoting those classes of vegetable matter which are grown in kitchen gardens and are used for the table.
The same view was reiterated in Motipur Zamindari Co. (Pvt.) Ltd. vs State of Bihar [1962] Supp. 1 SCR 498 and State of West Bengal and Ors.
vs Washi Alumed etc.
[1977]3 SCR 149.
In Washi Ahmed 's case green ginger was held to be vegetable within the meaning of the word used in common parlance.
In Motipur Zaminadari 's case it was held that sugarcane was not vegetable.
In Porritts & Spencer (Asia) Lid.
vs State of Haryana, ; this Court held that Dryer felts ' are not textiles.
In that context the principle of understanding the meaning of the word in common parlance was adopted.
In Indo International Industries vs Commissioner of Sales Tax.
U. P., ; at 297C this Court held that "it is well settled that in interpreating items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances resort should be had not to "the scientific anti technical ' meaning of the terms or expression used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them.
If any term or expression has been defined in the (emphasis supplied) enactment then it must he understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted.
In that case the clinical syringes manufactured and sold by the assessee were not considered as glassware ' falling within entry 39 of the First Schedule of the Act.
In commercial sense Glassware would never comprise of articles like clinical syringes etc., or specialised significance and utility.
Same view was reiterated in P.A. Chillai Chidambara Nadar vs Addl.
Appellate Asst.
Commissioner.
Madurai and Anr.
; that coconut is neither a fresh fruit nor a vegetable.
In khandelwal Metal Works vs Union of India, [1985] Supp. 1 SCR 750 at 774 B C this Court held that court cannot decide classification 386 of goods under Import Tariff by implication.
If rules of interpretation are made in the Act, they should be applied and interpretation would be made with their aid for classification.
The court held that brass scrap is not metal alloy.
Craises on Statute Law (7th Edition) at pace 164 specified one of the Rules of Interpretation of Statutes as extracted below: "The second Rule is that if the statute is passed with reference to a particular trade, business or transaction and, words are used therein which everybody conversent with that trade, business or transaction knows and understands to have a particular meaning in it, then the words are to be construed as having that particular meaning" In Shri Bharuch Coconut Trading Co. and Ors.
vs Municipal Corporation of the city of Ahemdabad and Ors., [1992] Suppl.
1 SCC 298 this Court applied the test as "would a householder when asked to bring some fresh fruits or some vegetable for the evening meal bring Coconut too as vegetable? Obviously the answer is in the negative".
Again when a person goes to a commercial market ask for coconuts, "no one will consider brown coconut to be vegetable or fresh fruit, no householder would purchase it as a fruit.
Therefore, the meaning of the word brown coconut, whether it is a green fruit has to be understood in its ordinary commercial parlance".
Accordingly it was held that brown coconut was not green fruit.
In interpreting the statute the individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Legislature is to be put aisde.
In Hansraj Gordhan Das vs H.H. Dave.
Collector of Central Excise & Customs and Ors., [ 3 this court held that the operation of the statutory notification had to be judged not by the object which authority had in mind but by the words it had employed to effectuate the legislative interest.
The question whether the cotton textiles manufactured by handlooms are entitled to exemption, this court held to be positive.
It may be noted that marketability of the product is an essential facet to attract dutiability of the goods under the Act.
The general purpose or common use of the product though may not be conclusive but may be relevant to classify it in a tariff entry when it was not specifically enumerated in a particular entry or sub entry.
The construction of the word must yield in favour of promoting and effectuating the object and purpose of the Act.
In Dunlop India Ltd. vs Union of India & Ors. ; this Court found the entry not in residuary but placed in the parentage and relieved it from orphanage.
in Anant B. Timbodia vs Union of India, ; , this Court was to consider whether imported cloves fell with item 169 in List 8 of Appendix 6 or para 167 of chapter 8 of import and export policy 1990 93.
Para 167 of Chapter 8 of import policy clearly provided the heading Import of Spices includes cloves, cinnamon/ cassia, nupneg and Mace.
Therefore, it was held that import permit is necessary.
The doctrine of popular sense or trade or its use in making medicine as crude drug 387 was not accepted.
Dictionary meaning or meaning given in Indian Pharmaceutical Codex was not accepted as given in in view of specific enumeration.
In Superintendent of central Excise, Surat vs Vac Metal Corporaion Ltd. AIR 1986 SC 1167 when the revenue contended that metalised yarn fell within general Tariff entry 18 yarn and synthetic fibres", this court held that entry 15A (2) first schedule of Central Excise & Salt Act 's specific entry relating to articles made of plastics of "all sorts" and metalised yam wax exigible to lessor tariff duty.
In Spaco Carburettors (India) Ltd. vs Collector of Customs.
Bombay ; whether special purpose complex machine tool fell in entry 84 89 or 84,45/48, this court held, after taking into account the purpose and use of it, that it is a multipurpose machine tool and fell in item 84, 45/48 of 1st Schedule.
The contention of the Revenue which finds favour with the tribunal that the legislative history and memorandum appended to the Finance Bill would furnish aid to the construction of the word "household" soap is not apposite to the fact situation.
When there is ambiguity in the word, statement and objects the legislative history, the memorandum appended to the Bill and the speech of the mover of the Bill are relevant material to discover the intention intention of the legislature.
In Shashikant Laxman Kale and Anr.
vs Union of India and Anr.
, ; at 376 para 17 this Court held that "for determining the purpose or object of the legislation, it is permissible to look into the circumstances which prevailed at the time when _the law was made, the Statement of Objects and, Reasons of the Bill which actuated the step to provide a remedy for the then existing malady can be used for the limited purpose of appreciating the background and the antecedent state of affairs leading to the legislation.
The memorandum explaining the provisions in the Finance Bill which were not part of the 'Notes on Clauses ' appended to the Statement of Objects and Reasons of the Bill cannot be used to draw support therefrom as it is not an accurate guide of the final Act.
In that behalf this Court relied on the statement of law profounded by Francis Bennion in his Statuitory Interpretation, Second Edition, 1984 at p. 529 relied on by the appellants in this case too.
In Ajoy Kumar Bannerjee and Ors.
vs Union of India and ors.
relied on by Sri Ganguli in this behalf renders no assistance to the Revenue.
Therein the question was the object of delegated legislation.
Therein the memorandum appended to the Bill incorporating section 16 of the was considered in the context of fixation of the pay scales of the employees.
The doctrine of reading down, placing reliance on Utkal contranctors and Joinery Pvt.
and Ors.
vs State of Orissa and Ors.
; also is of no assistance to the Revenue.
The doctrine of reading down has been applied only to sustain the constitutionality of the statute which question is not before us.
There is no quarrel with the proposition that in ascertaining the meaning of the word or a clause or 388 sentence in the statute in its interpretation, everything which is logically relevant should be admissible.
It is no doubt true that the doctrine of Noscitur A Sociis, meaning thereby, that it is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them i.e. when two or more words which are susceptible of analogous meaning are clubbed together, they are understood to be used in their cognate sense.
They take, as it were, their colour from each other, the meaning of the more general is restricted to a sense analogous to a less general.
The philosophy behind it is that the meaning of doubtful words may be ascertained by reference to the meaning of words associated with it.
This doctrine is broader than the doctrine of ejusdem generis.
This doctrine was accepted by this Court in catina of cases but its application is to be made to be context and the setting in which the words came to be used or associated in the statute or the statutory rule.
Equally the doctrine of ' contemporanea erpositio is also being invoked to cull out the intendment by removing ambiguity in its understanding of the statute by the executive.
This Court in a latest case Indian metals & Ferro Alloys Lid.
vs Collector of central Excise cited all the decisions upto date and applied the doctrine to the understanding by the revenue of the provisions in income tax Act ' In Desh Bandhu Gupta and Ors vs Delhi Stock Exchange ; this Court held that this principle can be invoked, though the same will not always be decisive on the question of construction.
But the contemporaneous construction placed by administrative or executive officers charged with executing the statute, although not controlling, is nevertheless entitled to considerable weight as highly persuasive.
We may also add that if the interpretation is erroneous, court would without hesitation refuse to follow such construction.
This Court also equally expressed the view that its application was in restricted sense to ancient legislation in J. K. Cotton Spinning and Weaving Mills Ltd. and Anr.
vs Union of India and Ors.
[1987] Supp.
SCC 350 and in Doypack Systems Pvt.
case ; at 1000 F to H. In State of Madhya Pradesh vs M/s. G.S. Dall and Flour Mills, [1992] Supp.
1 SCC 150 at 153 para 18, this Court doubted the application of the doctrine of contemporanea exposito as given to the construction or its applicability to a recent statute that too in the first few years of its enforcement.
In this case also the question whether toilet soap is a household soap had arisen within a short period after the Amendment Act, 1964 came into force, Therefore the understanding by the executive and its interpretation in bringing toilet soap in sub item (2) "other sorts" instead of item (1) "household" being of formative period of statutory operation the doctrine became inapplicable.
The ratio in Indo Metal case, therefore, is inapplicable.
As rightly contended by Sri Ganguli that the doctrine of placement of a particular goods in a particular tariff item or residuary i.e. parentage or orphanage i.e. in placement of toilet soaps 389 in either sub items is not attracted to the facts as it is not a case of residuary items but of sub classification within the same item.
Thus considered in the legal setting and commercial parlance we are of the considered view that "toilet soap" being of everyday household use for the purpose of the bath and having removed its separate identity which it enjoyed preceding amendment and having been not specifically included in "other sorts", it took its shelter in commercial parlance under "household".
As stated if any body goes to the market and asks for toilet soap he must ask only for household bathing purpose and not for industrial or other sorts.
Even the people dealing with it would supply it only for houshold purpose.
It may be true that Household consists of soap used for cleaning utensils, laundry used for cleaning soiled clothes and soap toilet is used for bathing but household is compendiously used, toilet soap is used only by the family for bathing purpose.
Individual preference or choice or teste of a particular soap for bath is not relevant.
The soap "toilet" would, therefore fall, within the meaning the word of "household" in sub item (1) of item 15 of the Schedule.
The classification shall accordingly be adopted.
The appeals are accordingly allowed.
the cases are remitted to the primary authority to deal with the matters accordingly.
We do not propose to go into the question of refund as it is a matter to be dealt with by the authorities concerned in accordance with the law.
, The appellants shall have to apply for refund and the authorities shall be required to deal with it in accordance with law.
It is for the authority, therefore, to decide the question as per law.
In the circumstances parties are directed to bear their own costs.
V.M. Appeal allowed.

summary:
The appellant Mills claimed that the "toilet soaps" produced by them were bath soaps failing under tariff item 15 (1) of the First Schedule (Household) to the , but the Assistant Collector classified the same as "other sorts" under tariff item 15(2) of the schedule attracting higher levy of excise duty.
On appeal, the Collector held that they fell under tariff item No. 15 (1) "household".
On second appeal, the Tribunal reversed the appellate order, against which the appellant Mills preferred the instant appeals.
The appellants contended that in 1954 toilet soap was treated as an independent tariff sub item and household and laundry soaps were treated as separate entity and separately subjected to varied rates of tariff , that on amendment in 1964 toilet soap was omitted as a separate entity and brought toilet soap as part of genus, namely, soap "household", as toilet soap has always been a household soap.
The respondents contended that statute always kept distinction between soap "household and laundry" and "other sorts" and that toilet soap was kept in the packet of other sorts; that household and laundry soaps were being used for cleaning household articles and utensils and washing the clothes, while toilet soaps are for bathing purpose.
The latter, composed of diverse varieties based on personal liking and taste, are being used; and that they are commercially known as other sorts but not household.
379 Allowing the appeals, and remitting the matter to primary authority, this Court, HELD:1.1 The provisions of the Tariff do not determine the relevant entity of the goods.
They deal whether and under what entry, the identified entity attracts duty.
The goods are to be identified and then to find the appropriate heading, sub heading under which the identified goods/prod ucts would be classified.
To find the appropriate classification the description employed in the tariff nomenclature should he appreciated having regard to the terms of the headings read with the relevant provisions or statutory rules or interpretation put up thereon.
For exigibility to excise duty the entity must he specified in positive terms under a particular tariff entry.
In its absence it has to be deducted from a proper construction of the tariff entry.
There is neither intendment nor equity in a taxing statute.
Nothing is implied.
It should be interpreted and construed as per the words the legislature has chosen to employ in the Act or Rules.
There is no room for assumptions or presumptions.
The object of Parliament has to be gathered from the language used in the statute.
(383 H, 384 A B) 1.2"toilet soap" being of everyday household use for the purpose of the bath and having removed its sperate identity which it enjoyed preceding amendment and having been not specifically included in 'other sorts ', it took its shelter In commercial parlance under household '.
If any body goes to the market and asked for toilet soap, he must asked any for household bathing purpose and not for industrial or other sorts.
Even the people dealing with it would supply it only for household purpose.
It may be true that household consists of soap used for cleaning utensils, laundry used for cleaning soiled clothes and soap toilet is used for bathing but house hold is compendiously used, toilet soap is used only by the family for bathing purpose.
Individual preference or choice or taste of a particular soap for bath is not relevant.
The soap "toilet" would, therefore, fall within the meaning the word of "household" in sub item (1) of item 15 of the Schedule.
(384 B C,) Ajoy kumar Bannerjee and Ors.
vs Union of India and Ors.
, ; and Urkal Contractors and Joinery Pvt. Ltd. and Ors.
vs State of Orissa and Ors.
: ; , distinguished Manmohan Das v Vishnu Das; , ; Ramavatar Budhaipasad etc.
vs Asstt.
Sales Tax Officer, Akola and Anr, ; Motipur Zamindari Co. (Pvt. ) Ltd. vs State of Bihar: 380 [1962] Supp. 1 SCR 498; State of West Bengal and Ors.
vs Washi Ahmed etc.
; , ; Porritts & Spencer (Asia) Ltd. vs State of Haryana, ; ; Indo International Industries vs Commissioner of Sales Tax, U.P., ; at 297 C; P.A. Chillai Chidambara Nadar vs Addl.
Appellate Asstt.
Commissioner, Madurai and Anr., ; ; Khandelwal Metal Works vs Union of India, [1985] Supp.
1 SCR 750 at 774 B C; Shri Bharuch Coconut Trading Co. and Ors.
vs Municipal Corporation of the city of Ahmedabad and Ors., [1992] Supp. 1 SCC 298; Hansraj Gordhan Das vs H.H. Dave Assti.
Collector of Central Excise & Customs and Ors.
, ; Dunlop India Ltd. vs Union of India & Ors. ; ; Anant B. Timbodia vs Union of India; , ; Superintendent of Central Excise, Surat vs Vac Metal Corporation Ltd., AIR 1986 SC 1167; Spaco Carburettors (India) Ltd. vs Collector of Customs, Bombay, ; ; Shashikant Laxman Kale and Anr.
vs Union of India and Anr.
, ; at 376 Para 17; Mitra Prakashan Pvt. Ltd. vs Collector of Customs, para 15; Desh Bandhu Gupta and Ors.
vs Delhi Stock Exchange: ; ; J.K. Coton Spinning and Weaving Mills Ltd. and Anr.
vs Union of India and Ors., [1987] Supp.
SCC 350; Dovack Systems Pvt. Ltd. etc.
vs Union of India & Ors.
etc.[1988] 2 SCR %2 at 1000 F to H and State of Madhya Pradesh vs M/s G. section Dall and Flour Mills:, [1992] Supp.
1 SCC 150 at 153 para 18, referred to, Craises on Statute Law (7th Edition) at Page 164, referred to.