K.J. Joshi and Co. vs Joint Commercial Tax Officer, Rattan Bazaar Division

Ramaprasada Rao, J.—For the year 1961-62, the petitioner was assessed to sales tax by a final order of assessment dated 4th January,

1963. A portion of the turnover which was included in the aforesaid order of assessment related to sales of polishing compositions or polishing

bars, which had all the shape of a bar soap, but according to the petitioner, did not have any intrinsic quality which is comparable to a soap as is

popularly understood. The original assessing authority assessed it as an article which has to be taxed at the multi-point level the same not being

provided for specifically in Schedule I to the Madras General Sales Tax Act, 1959. But in 1967 the respondent in the purported exercise of power

u/s 16 of the Act sought to reopen the assessment on the ground that the assessee was dealing in metal polishing soaps and such soaps or bars

were taxable at 5 per cent, single point under item 37 of the First Schedule to the Act and in this respect there was an escapement. He, therefore,

made a proposal to revise the assessment and ultimately revised it under his order dated 31st March, 1967. As, according to the petitioner, the

respondent, had no jurisdiction to assess the products in question under item 37 of Schedule I of the Act, he has come up to this court questioning

the revised order of assessment dated 31st March, 1967, in so far as the turnover related to metal polishing compositions.

The petitioner produced the products manufactured by him and the learned Assistant Government Pleader had occasion to examine the same.

For all outward purpose the shape of a big bar soap is maintained as regards the polishing compositions, but their utility is unique and bears no

comparison to the ordinary and normal uses of a soap. The dictionary meaning of soap indicates that it is a composition of various oils and fats

used in washing. The essential popular purpose for which the soaps are used are to wash or to cleanse, but the metal polishing compositions of

which samples have been produced are intended mainly for polishing stainless steel and other such hard surfaces. They are extensively used in all

branches of polishing and metal finishing trades. In fact, the composition gets itself inhered into the other surfaces to which it is applied, and

incidentally makes that other surface more smooth and polished, but in the process it exhausts itself. This is the main and the only purpose for

which these bars are used. This user has nothing to do with the use to which soaps are normally or popularly put. In my view, the exercise of

jurisdiction u/s 16 of the Act appears to be not warranted in law. It is not a mere change of opinion which has prompted the assessing authority to

reopen the assessment u/s 16 of the Act, but the basis of revision appears to be that the later authority was of the view that the user to which the

articles in question are normally put were misunderstood by the earlier authority. He explained these articles as articles which come under the

category or class of soaps. I have already expressed the view that soap has a distinct purpose to serve which is far different from the purpose for

which the metal polishing bars or metal polishing compositions, with which we are concerned, can be used or are used.

In fact, the occasion, for the substitution of this item in or about July, 1967, is also significant. Originally item 37 included only soaps. Later by

Madras Act 5 of 1967, the item was substituted by the words all kinds of soaps and soap powder including metal polishing bars. This inclusive

expansion of the item itself makes it clear that the metal polishing bars do not belong to the genus of soap, but it has been brought into the compass

of the entry by legislation. The purpose for the substitution or modification of the entry is stated to be that it was so made in order to make it clear

that the metal polishing bars would fall under this item. This explanation by itself suggests that the position before the 1st of July, 1967, was not

clear. If that were so, there was an ambiguity at or about the time when the impugned order was passed, whether metal polishing bars or metal

polishing compositions could come within the purview of item 37. As there can be no tax by an intendment and in the absence of an express item

including metal polishing bars prior to 1st of July, 1967, the attempted revision of the original order as undertaken by the respondent in exercise of

its power u/s 16 of the Act is not legal and is not one which could normally be said to flow from the power contemplated in Section 16 of the Act.

In the above view, there was no jurisdiction for the respondent to revise the order u/s 16 of the Act and even otherwise it would be perverse to

hold that the metal polishing composition or bar used in polishing and metal finishing activities is equitable to soaps which are primarily intended to

wash and clean. In this view of the matter, the rule nisi has to be made absolute. Accordingly, the writ petition is allowed, There will be no order as

to costs.