BENGAL IRON CORPORATION AND ANR. v. COMMERCIAL TAX OFFIC£R AND ORS.

The Judgment of the Court was delivered by

B.P. JEEVAN REDDY. J. CNILAPPEALNO. 4474 OF 1992. D 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 ~ general goods. He over- ruled 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 E Deputy Corrunissioner 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.0.Ms. No. 383 Revenue (S) Department dated 17.4.1985, his products are 'declared goods' and are, therefore, liable to tax F only @4%.

Third Schedule to the Andhra Pradesh General Sales Tax Act pertains to H

p. 436 Copy page pinpoint

A "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 Central Selas Tax Act. Item(2) of the Third Schedule to theA.P. Act reads as follows:

B THIRD SCHEDULE (As amended upto 15th August 1987)

Declared goods in respect of which a single point tax only is leviable under Section 6. ·

c S.No. 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 D ingot moulds, bottom plates, iron scrap, cast iron scrap, runner scrap and iron skill scrap; (ii) steel semis (ingots, slabs, blooms and billets of all qualities, shapes and sizes); E (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); F (v) steel structurals (angles, joints, channels, tees, sheet pilling s~tions. 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, forgings and steel castings; (ix) tool, alloy and special steels of any of the above categories;

BENGAL IRON CORPN. v. COMMERCIAL TAX OFFICER [B.P. JEEWAN REDDY,J.) 437

(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; B (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, ailes and wheel sets; c (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. D Item (2) of the Third Schedule to the A.P. Act is an exact replica ofitem (iv) of section 14 of the Central Sales Tax Act. According to section 15 of the Central Act, 'declared goods' cannot be taxed at a rate exceeding 4% or at more than one stage. E 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 ofitem(2) (ij of the Third Schedule to the A.P. Act/ltem(iv) (i) of section 14 of the C.S.T. Act. At this stage, it is necessary to acertain precisely what does 'cast iron' mean and how are the products of the appellant manufactured. 'Cast iron' is defined in the Concise F 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 upto4% carbon, and is more brittle, but more easily fused, than steel." According to Van Nostrand's Scientific encyclopedia, 'cast iron' is "primarily the produc~ of remelting and casting pig iron". (Interestingly, the expression 'cast-iron'-with a G hyphen between 'cast' and 'iron' -has been defined separately as meariing "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 publica- tion 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 ff rendering - it is without a hyphen.) That 'cast iron' is different from 'cast iron

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A 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:

"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 B 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 c that the relevant entry in section 14 of the Central Act also Hird 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 D 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."

E It is thus clear that 'cast iron' is different from 'cast iron castings' manufac- tured 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 -F silicon thereby deriving 'cast iron' and then pours it into different moulds. In sum, '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 G 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 H February, 1977 from the Department of Revenue and Banking (Revenue Wing)

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Government of India addressed to the Finance/Revenue Secretaries of all State A Govern·ments and Union Tarritories. It reads thus:

"Subject: Clarification as to whether the term 'Cast Iron' mentioned in section 14(iv) (i) of the Central Sales Tax Act, 1956 would cover cast Iron casting. B ' In continuation of the marginally noted communications and with refere.nce to this Department's letter No. 24/3n3-ST. dt. 20.11.1973, I am directed to say that the question whether the expression 'cast iron' used in Section (iv) (i) of the Central Sales Tax.Act, 1956 will include 'Cast iron casting' has been re-examined in consultation with the Directorate General of Technical Develop- c ment, Chief Chemist a~q the Ministry of Law, Justice & Company Affairs. This Department has been advised that the existing expres- sion 'cast iron' in the aforesaid section will cover 'cast iron casting· also. Yours faithfully, D

Deputy Secretacy.,to the '. Govt. ofIndia." E Pursuant to the above clarification by the Central Government, the Commis- sioner 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 offirst 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 F Commiercial Taxes, Government of Andhra Pradesh to his subordinate officials on 12.3.1982. The next clarification from the Government of India was on 31st 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 G and requested the Ministry of Finance, Government of India to examine the same. It was in reply to the said query that the letterdated3 lstJanuary, 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 H

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A General of Techinical Development. It set out the opinion of the Minis~ of Law as also the opinion of the Director General ofTechinical 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 Com- D mittee 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 Gov~rnments and E Administrations 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. F 2 of the Third Schedule to the Andhra Pradesh General Sales Tax Act". On the ' same- day the Principal Secretary .Jo the Governipent, 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 inclucling 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 suberdinate officers stating that the question whether 'cast iron castings' fall within the expression

BENGAL IRON CORPN. v. COMMERCIAL TAX OFFICER [B.P. JEEWAN REDDY,J.) 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 re-examined.

On 17th April, 1985 the Government of Andhra Pradesh issued a clarifica- tion contained in G.O.Ms. No. 383 under sub-section (2) of section 42 of the A.P. B 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 Tax c -- ... on 'Cast Iron Casting' Clarification issued.

REVENUE (S) DEPARTMENT . ....

G.O. Ms. No. 383. Dated 17.()4..1985 Read the followings:- D

· 1. Govt. Memo. 2216/SI/83-4, dt. 20.7.84,

2Copy pinpoint2. Lr. No. 2216/83-4, dt. 20.7.84 addressed to Secretary A.P. Small Scale Industries Association, Vijayawada E 3, From the CCT's Ref. D.O.FE.Lr. III (3) (1490184, dt. 24.7.1984.

4Copy pinpoint4. Government Memo 3166/SI/84-4, dt. 13 .11.1984.

5Copy pinpoint5. From the CCT.D.O. on CCT's. Ref. Ll/(i) /1063/82 F

6Copy pinpoint6. Govt. Memo No. 3166/Sl/84-5, dt. 22.2.1985.

7Copy pinpoint7. From the CommissionerofCommercial Taxes, Ref. A3/Ll/1093/ 82 dt. 19.3.1983. G ORDER:

. TheAndhra 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. H

442 SUPREME COURT REPORTS · [1993) 3 S.C.R.

A 2. This matter was examined at length by the Government of India in consultation with Ministry of Law, (Department oflegal Aff$rs) and Director General ofTechinical Development. The Ministry of Finance, Department of Revenue, Government oflndiaclarijied, 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". B

3. 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 c such "cast iron castings" is not a different commercial commodity from the commodity "cast iron including ingot, moulds, bottom plates."

4. Unde~ sub-section (2) of section 42 of the Andhra Pradesh General Seles Tax Act, 1957 the Government hereby clari/)'that the D "cast ca§tings" 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 Prades.h General Sales Tax Act, 1957. (emphasis added)

E (BY ORD~R IN THE NAME OF THE GQVERNOR OF

- ANDHRA PRADESH)

C.R. NAIR,

F 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 t(} the present Sales Tax ' Act. An orderunder sub-section (I) is required to be published in the A.P. Gazette. G Sub-section (2) is general in nature. An order under sub-s~ction (2) is not required to be published in the A.P. Gazette. Section 42 reads:

"42 Power to remove difficuities:-

(1) If any difflculty arises in giving effect to the provisions of this H Act in 1::onsequence of the transition to the said provisions from the

BENGAL IRON CROPN. , .. COMMERCIAL TAX OFFlCER [B.P. JEEWAN REDDYJ.) 443

corresponding provisions of the Acts in force immediately before A 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 difficuf,ty.

(2) If any difficulty arises in giving effect to the provisions of this B 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." c An order issued under section 42, is undoubtedly statutory in character.

. So far as clarifications/circulars issued by the Central Government and/or G State Government are concerned, they representmerely their understanding of the statutory provisions. They are not binding upon the Courts. Iris true that those clarifications and circulars were communicmed 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 H

444 SUPREME COURT REPORTS [1993] 3 S.C.R.

A 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 B 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 v. Mis. Bharat Coking Coal Ltd. and another, A.l.R. 1983 SC 239.

Now coming to G.o: Ms. 383, it is undoubtedly ofa statutorily character but, c 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 i::Jass of goods or a class of persons, as the case may be. For doing that, the power of exemptionconferredby section 9 of the A.P. Act has to be exercised. Though ~t.is-tfot 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 fromexercisingthe 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 ou~ notice that the very same Division Bench which rendered the decision in Deccan Engineers had rendered another decision in Tax Revision Case No. 93of1990 (The State ofA.P. v. Pratap G 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 decisio~ ui 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. 8

BENGAL IRON CROPN. v. COMMERCIAL TAX OFFICER [B.P. JEEWAN REDDY.I.) 445

In this view of the matter in is not neces~ for us to go into the question A wether the word 'including' in section 14 (iv) (i) of Central Sales Tax.Act and item (2) (i) of the Third Schedule to the A.P. Act has the effect of making the said sub- clause exhaustive or otherwise.

Accordingly, w~ hold that the cast-iron castings manufactured by the appellants do not fall within the expression 'cast iron' in Entry 2(i) of the Third B Schedule of the Andhra Pradesh General Sales Tax Act or within Section 14 (iv) (i) of the Central Sales Tax Act.

The appeal accordingly fails and is dismissed. No order as to costs. c W.P. "fo...163QF1992

This writ petition preferred under Article 32 of the Constitution is directed against the notices issued by the assessing authority proposing to reopen the ai;sessments of the petitioner/appellant with respect to earlier assessment years · D and aJso seeking to apply the principle of _Deccan Engineers to the pending assessments. r·'or the reasons stated hereinabove this writ petition fails and is accordingly dismissed. No costs.

G.S.B. Appeal and petition dismissed.