Kishorilal Radheysham vs Deputy Commissioner of Commercial Taxes, Bangalore.

Rama Jois, J.-In these three writ petitions presented by the same petitioner who is a dealer registered under the provisions of the Karnataka Sales Tax Act, 1957, (hereinafter referred to as the ''Act''), the following question of law arises for consideration.

"Whether the ''glass marbles'' are liable to be taxed only under Entry 109 of the II Schedule to the Act, treating it ''as glassware'' at 6 per cent or it could be treated as unspecified goods on the ground that though it is made of glass, at common parlance it is treated as an article of sport and plaything and therefore liable to fax at 3 per cent under Section 5(1) of the Act?

The brief facts in these three petitions are as follows:

(i) W.P. No. 7290 of 1975: For the assessment year 1972-73, the assessment was concluded on 25th January 1974 by the Commercial Tax Officer, 3rd Circle, Bangalore. Out of the various goods which the petitioner is dealing, one of them is glass marbles (tisco) which is used as ''play thing'' by children. The assessment was completed levying fax at 3 per cent under Section 5(1) of the Act. Thereafter, the Deputy Commissioner issued notice dated 24.12.75 under Section 21(4) of the Act proposing to revise the order of the assessing authority and to bring the turnover of glass marbles to tax at the rate of 6 per cent on the ground that it was glass ware falling under Entry No 109 of the II Schedule. Aggrieved by that notice dated 24.12.75 (Exhibit-A) the petitioner has presented W.P. No. 7290 of 1975.

(ii) Writ Petition No. 7291 of 1975: This petition is also presented under similar circumstances, as stated above, but the order of assessment is dated 26.10.72 for the assessment year 1971-72. The notice of the Deputy Commissioner in this case was also issued on 24.12.75 and is marked as Exhibit-A.

(iii) Writ Petition No. 7300 of 1975: For the assessment year 1973-74 the assessing authority itself assessed the turnover of glass-marbles at 6 per cent on the view that it came under Entry 109 of the II Schedule. The petitioner has prayed for quashing the order of the assessing authority.

We shall first take up writ petition No. 7300 of 1975 for consideration. During the earlier years, the assessing authority had levied tax on the turnover of ''glass-marbles under Section 5(1) of the Act. Similar claim was made by the assesses for the assessment year 1973-74. But the assessing authority was of the view that ''glass marble" fell within the expression ''glass ware'' used in Entry 109 of the II Schedule to the Act and therefore, higher rate of tax at 6 per cent should be levied, as against the levy of tax at 3 per cent under Section 5(1) of the Act during the earlier years. Therefore, the assessing authority proposed to levy tax on the, turnover of ''glass marbles'' at the rate of 6 per cent. Objecting to the said proposal, a detailed objection was filed on behalf of the petitioner which is set out in the order of the assessing authority. The main grounds taken before the assessing authority were as follows:

(1) Though marbles are made, of glass at common parlance they are understood and treated as sport and play thing, and not as ''glass-ware''.

(2) ''Glass marbles'' are not sold generally by any dealer dealing in ''glass-ware, but are sold by the Stationery and general merchants.

In support of the above points urged for the assessee, reliance was placed on an order made by the Uttar Pradesh sales Tax Authority holding that ''glass marbles'' did not fall within the entry of ''glass-ware''. The petitioner had also relied on a Magazine published under the title ''Toys & Plaything'' published from Washington (U.S.A.) in which the marbles were classified under the heading ''Toys and Playthings''. The petitioner pleaded that under the provisions of Sales Tax Laws, ''doctrine of common parlance'' was applicable to decide the nomenclature of the goods in a given case in the absence of any specific definitions given in the relevant sales tax law.

The assessing authority rejected the claim of the petitioner. The relevant portion of the order reads as follows:

"The main question is whether glass balls or glass marbles are glass-ware. When the Sales Tax Tribunal has interpreted glass sheets as glassware, it would not be correct to hold that glass marbles are not glass ware. The Advocate has argued'' at length about the common parlance theory. The theory of common parlance would come when there is any ambiguity with regard to the interpretation of law or statute. When the facts of the case are quite obvious and glaring, theory of common parlance has no weight.

In the last paragraph of the objection filed by Advocate he has argued that previous officers and, superior officers have not taken up this objection and have appreciated the common parlance theory and it would therefore not be just to raise this issue at this point of time. It can be said that there was no decision by any Appellate Court previously and it is only in the case of Jaya Frame Works, Davangere v. State of Karnataka (STA 408 dated 3-1-1974) the Tribunal has held the articles made of glass are glass ware. When once it is held that glass sheets made of glass are glassware, it can be interpreted glass marbles as glassware. Considering the objections filed and also after examining the issue, I finally hold that the glass marbles are glass ware and would be taxed under Entry No. 109 of the II Schedule of K.S.T. Act 1957...."

As can be seen from the aforesaid portions of the order, the assessing authority proceeded on the basis that when glass marbles are made up of glass, the question of application of doctrine of common parlance theory did not arise. It also referred to the decision of the appellate tribunal in the case of Jaya Frame Works, Davanagere v. State of Karnataka, STA 4087/73 dt. 3-1-74, in which the Tribunal had held that the articles made up of glass sheets were liable to be taxed under Entry 109 of the II Schedule and not under Section 5(1) of the Act.

The relevant entry 109 of the II Schedule reads as follows:

"glass-ware and glass bottles."

The word ''glassware'' is not defined. In the absence of the definition of the word ''glassware'' the principle of common parlance'' theory would be applicable i.e., as to whether in the market, the goods is treated by the dealers and customers as glassware or as play thing as pleaded by the assessee. In fact, the wording of the very entry in which ''glass bottles'' is specifically incorporated shows that the Legislature considered that it would not have fallen within the expression ''glassware.''Similarly there could be several articles made of glass which at common parlance are not considered as ''glassware''. In order to come to the conclusion whether at common parlance the ''glass marbles'' were considered as ''glassware'' or as play things, it was necessary for the assessing authority to consider as to whether the dealers dealing in ''glassware'' and the customers considered glass marbles as ''glass-ware''.

Learned counsel for the petitioner submitted that the glass marbles were being generally sold only by stationery and general merchants and it is treated by the business community and customers throughout the world, as a plaything. In support of his submission, the learned counsel also produced 1971 Directory, an American Publication issued under the heading ''Toys''. At page 422 thereof marble is listed as one of the ''playthings''. He also produced another similar American Publication under the title ''play things'', in which also marbles have been included as one of the ''play things''. He also relied on a publication of Government of India by the Development Commissioner, Small Scale Industries in which the scheme for manufacture of glass marbles has been incorporated and it is stated as follows-

"Glass marbles are being used for playing purposes throughout the world by children."

He further relied on the Goods Tariff 1965 prescribed by Railway Department in which separate tariff has been prescribed for ''glass ware'' and ''glass marbles'' at pages 240 and 293 respectively.

The applicability of ''doctrine of common parlance'' to find out as to whether any particular goods belongs to any particular category or answers any particular description is well settled. In this behalf, it is sufficient to refer to a decision of this court in Soundarapandian v. Commissioner of Commercial Taxes, 46 STC 211. In the said case, the question for consideration was as to whether water colour, poster colour and oil colour sold ordinarily in stationery shops or book shops and generally used by engineering and drawing students fell under the category of ''paints, colours, dyes and varnish'' under entry 97 of the II Schedule to the Act. The case of the department was that the items, water colour, poster colour and oil colour were also colours and therefore fell within the category of ''colours and paints'' used in entry 97 of the II Schedule to the Act and therefore were liable to be taxed at the rate fixed for the goods mentioned at entry 97. Rejecting the said contention, it was held that in common parlance paints, colours dyes and varnish set out at entry 97 were those sold by hard-ware merchants and were meant to be used for surface paintings of walls, doors, etc., and did not comprehend water-colour or poster colour or oil colour sold ordinarily by stationery merchants and book sellers and used by the students. In coming to that conclusion this court placed reliance on the decision in Commissioner of Sales Tax v. S.N. Brothers, 31 STC 302, SC, in which the Supreme Court pointed out that the meaning given to the words in the dictionary should not be taken as conclusive for the purpose of levy of tax. In the said case, applying the principle of common parlance the Supreme Court concluded that where a word not defined had been used in an entry, it should be treated as an article as understood is common use. The counsel for the petitioner also relied on the decision of Orissa High Court in State of Orissa v. Janata Medical Stores, 37 STC 33, in which that High Court held that thermometers, lactometers, syringes, eyewash glasses and measuring glasses did not fall within the meaning of the expression ''glass-ware'' as used in the relevant entry in the schedule to the Orissa Sales Tax Act. The assessing authority had referred to the order of the Appellate Tribunal in the case of M/s. Jaya Frame Works. It should be pointed out that the said decision was the subject matter of revision before this court in S.T.R.P. 67 of 1975 and this court by order dated 18-7-1978 set aside the order of the Tribunal and remitted the matter to the Commercial Tax Officer to decide as to whether the goods constituted ''glass-ware'' or not after recording the necessary evidence, following an earlier decision to the same effect in the case of M/s. Donoare & Co. v. Commissioner of Commercial Taxes, STA 1/74, decided on 9-3-1978. The ratio of the above decision is equally applicable to the instant case. Therefore, in the present case also, in the absence of a definition of the expression ''glass-ware'' in the Act ''doctrine of common parlance'' was attracted and it was open for the petitioner to prove that at common parlance it was only considered as plaything and therefore the assessing authority was not right in rejecting the plea put forth by the petitioner and not considering the evidence adduced by the petitioner in that be- half. Therefore, the order of the assessing authority impugned in writ petition No. 7300 of 1975 is liable to be set aside.

However, as regards the notices issued by the Deputy Commissioner against which the writ petition No. 7290 of 1975 and writ petition No. 7291 of 1975 have been prescribed, it was open for the petitioner to furnish its reply and to place material before the Deputy Commissioner in the same manner it had done before the assessing authority and if it had done so it was obligatory for the Deputy Commissioner to decide the question applying the principle of common parlance. But the petitioner has approached this Court even before showing cause against the said notice. It cannot be said that the notice; issued by the Deputy Commissioner itself was without jurisdiction. Therefore, there is no ground to interfere with the notice impugned in these petitions.

For the reasons aforesaid, we make the following order:

(1) In W.P. No. 7300 of 1975.

(i) Rule made absolute.

(ii) The impugned order of the Commercial Tax Officer, 3rd Circle, Bangalore, dated 29-11-1975 (Exhibit-A) in so far as it relates to the turnover of the glass marbles is quashed.

(iii) The assessing authority shall, after giving an opportunity to the petitioner make a fresh assessment on the turnover relating to glass marbles in the light of this order.

(iv) It is open for the petitioner to aduce any further evidence, if the petitioner so chooses.

(2) In W.P. Nos. 7210 and 7291 of 1975:

(i) Rule discharged.

(ii) Petitions dismissed.

(iii) The petitioner shall be at liberty to show cause against the notices and the Deputy Commissioner shall pass orders in the light of this order. did not lay down in Shylaja''s. case that the enquiry regarding the truth of an applicant''s claim to belong to a particular category of Backward Class, cannot be done at the interview by the Selection Committee. Nor did we lay down that the Selection Committee is not the sole arbiter of such question. Much less did we hold that whenever such dispute arises, the Selection Committee should refer such dispute to the Deputy Commissioner, the Superintendent of Police or the Officer of the Social Welfare Department.

Sub rule (2) of Rule 10 of the Rules reads:

(2) The Selection Committee shall (a) call for interview such number of the applicants required to select the required number on the date, time and place as it may be determine.

(b) interview the applicants referred to in clause (a) for verifying the particulars furnished by the applicants or to obtain any clarifications which the Selection Committee may need.

(c) have power to make such enquiry as it deems fit to verify the particulars, furnished by the applicant.

(d) have power to reject any application for reasons to be recorded in writing.

(e) The interview shall be construed to be an opportunity given to applicants of being heard in case of rejection of applications.

It is seen from the above sub-rule that it confers power on the Selection Committee to verify the particulars furnished by applicants, to make such enquiry as it deems fit to verify such particulars and to reject any application for reasons to be recorded in writing. Clause (e) of that sub-rule expressly declares that the interview shall be construed as an opportunity given to applicants, of being heard in case of rejection of applications. In the face of these express provisions, how can it be said that the Selection Committee has no power to ascertain the caste or community of the candidate at the interview and to decide at such interview whether to accept or to reject the claim of an applicant that he belongs to a particular category of Backward Class?

Rule 16 of the Rules is an enabling provision which empowers the Selection Committee to make a reference, if it considers necessary, to authorities like the Deputy. Commissioner the Superintendent of Police and Officers of the Social Welfare Department whose opinion, though entitled to due consideration, is not binding on the Selection Committee. Even if such reference is made, it is the Selection Committee and that Committee alone which should decide whether or not an applicant belongs to any category of Backward Classes as claimed by him. We are wholly unable to agree with the view of the learned single Judge that the Selection Committee is not the sole arbiter of the question as to whether an applicant belongs to any particular category of backward Classes. Nor can we agree with the view of the learned single Judge that if Rule 10 is held to confer on the Selection Committee the power to decide such question, Rule 16 would become redundant. As seen earlier, Rule 16 merely enables the Selection Committee to take the assistance of authorities like the Deputy Commissioner, without abdicating its ultimate power to decide such question.

We are unable to see how Rule 10 (2) (c), if construed as conferring power on the Selection Committee to decide whether or not an applicant belongs to any particular category of Backward Classes, is liable to be struck down as suffering from the vice of excessive, unguided and arbitrary delegation of power. Some authority or the other has to be conferred the ultimate power to decide such question. Such conferment of power does not amount to excessive or arbitrary delegation of power. If the authority entrusted with such power to decide acts arbitrarily or does not provide reasonable opportunity to an applicant to substantiate his claim to belong to a particular category of Backward Classes, what will be struck down, will be such decision and not the conferment of such power to decide

As held by us in Shylaja''s case, before rejecting the claim of an applicant that he belongs to a particular category of Backward Classes, there should be a satisfactory enquiry in which such applicant is given full opportunity to establish his claim.

in the present case, the petitioner had specifically averred in para 9 of the writ petition that when the Chairman of the Selection Committee asked her as to the caste to which she belonged she mentioned the name of her caste, that he told her that Salia Community was not a backward Caste, that she tried to point out the original certificate issued to her for the purpose of her application to the Dental College and tried to explain to him that there was only one Malayam, speaking community, viz, Challiya in Mangalore, but the Chairman indicated that he could not accept that she belonged to a Backward Caste.

In the statement of objections flied on behalf of the Selection Committee, all that was said in traversal of the above averments, was that the petitioner did not produce at the interview the certificate said to have been issued by the Tahsildar on 22.7.81. There was no specific denial of her averments that in reply to the question put by the Chairman of the Selection Committee she mentioned the name of her community (which obviously, must nave been Challiyan) and tried to explain that in Mangalore there was only one Malayalam speaking community, i.e., Challiyan.

When the petitioner claimed at the interview by the Selection Committee that she belonged to Challiyan or Challiya caste, the Selection Committee should have given her a reasonable opportunity to substantiate her claim. As the Selection Committee did not do so, the learned single Judge was justified in quashing the decision of the Selection Committee and directing it to give her a reasonable opportunity to substantiate her claim and if her claim is accepted, to consider her case on the basis of her marks, for a seat among the seats reserved for Backward Castes.

In the event of the petitioner''s claim being accepted by the Selection Committee and her being selected, there will be no difficulty in admitting her to the I Year Class of the M.B.B.S. Course in one of the Medical Colleges, because we were informed by the learned Counsel for the writ petitioner (the respondent herein) on 22.10.81 that there was one vacancy in the category of seats reserved for Backward Classes in the I Year Class of one of the Medical Colleges and we made an interim order on that da directing the Selection Committee to keep that seat vacant so that the petitioner may be accommodated in the event of this appeal being dismissed.

In the result, we dismiss this appeal though we have disagreed with a part of the reasoning of the learned single judge.

In this appeal, we direct the parties to bear their own costs.