P.C. Naik, J.
1. At the instance of the Revenue, the Orissa Sales Tax Tribunal has referred for the opinion of this Court, the following question of law :
“Whether in the facts and circumstances of the case the Hon’ble Sales Tax Tribunal is correct to hold that glass sheets do not fall under the entry 38 or 40 as the case may be of the schedule of goods taxable on the point of sale in view of the ratio of the Orissa High Court judgment rendered in Shantilal Kalidas case (42 STC P-9) ?’
2. The dispute relates to the assessment year 1984- 85. Admittedly, the dealer-opp. party carried on business in glass, mirror, straw board etc. at Puri. During the period in question the opp. party, who is a registered dealer had collected tax at 12% on the sale of glass sheets and paid tax at that rate on the turnover of glass sheet. However, in appeal before the Assistant Commissioner of Sales Tax, Puri the dealer contended that it had wrongly collected and paid tax at 12% on the sale of glass sheet which in fact ought to have been taxed at 8% as an unspecified item. The contention was accepted and the matter was remanded to the Assessing Officer for a fresh assessment and, it was also directed that action be taken against the dealer under Section 9-B(3)(a) (ii) of the Orissa Sales Act, 1947 (in short, ‘the Act’). Aggrieved with the said order, the Revenue went up on appeal before the Tribunal which was turned down. However, on an application under Section 24 (1) of the Act, the question, as stated above, has been referred to this Court for its opinion.
3. The entries relevant for the purpose of this case (as they stood at that time) read thus :
“40. Glassware and china clay goods excepting bottles, lamp and lantern chimney and earthen were pottery … 12%
101. All other articles … 8%
The question for determination, therefore, is whether ‘glass sheet’ is ‘glassware’ so as to fall within entry 40 or whether it falls under entry 101 being an unspecified item.
4. The learned counsel for the Revenue made a reference to the decision of this Court in the case of Shantilal Kalidas v. State of Orissa, (1978) 42 S.T.C. 9 wherein the question for consideration was whether “glass bangles” are covered by the term “glassware” . Therein, it was observed that since glassware has no statutory definition, but in view of the definition given in the dictionary, glassware would mean articles made of glass. The Court further observed that in construing entry 38, (at the relevant time) the common parlance theory is to be invoked and since in popular sense glassware would ordinarily refer to articles made of glass, the internal indication in the said entry by excluding certain class of articles made of glass from the ambit of glassware coupled with the popular sense establishes that all articles made of glass would be glassware for the purpose of that entry. Accordingly, glass bangles were held to be covered by the term ‘glassware’ in entry 38.
5. In the case at hand, however, we are not dealing with any ‘article’ made of glass but with glass simpliciter. It will be stretching the expression ‘glassware’ too far if one were to say that ‘glass sheet’ is glassware. In fact, Glass is the raw material which is used for making glassware. At this stage reference may be made to a decision of the Apex Court in Indo International Industries v. Commissioner of Sales Tax, Uttar Pradesh, (1981) 47 STC 359 wherein the question for determination was whether hypodermic clinical syringes were glassware. The Apex Court observed,
“It is well-settled that in interpreting 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 and technical meaning of the terms or expressions 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 enactment then it must be 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 the light of the settled position the Court further observed :
“…….it is true that the dictionary meaning of the expression “glassware” is “articles made of glass” (see Webster’s New World Dictionary). However, in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in ‘glassware’ does not ordinarily deal in articles like clinical syringes, thermometers, lactometers etc. which articles though made of glass are normally available in medical stores or with the manufacturers thereof like the assessee. It is equally unlikely that a consumer would ask for such articles from a glassware shop. In popular sense when one talks of glassware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come upto one’s mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be considered as ‘glassware” falling within entry 39 of the First Schedule to the Act.”
6. On behalf of the Revenue, reference was also made to a decision of the Allahabad High Court in the case of Tarkeshwarnath Agarwal v. Commissioner of Sales Tax, (1974) 34 S.T.C. 497 where relying on a decision in the case of U.P. Glass Works Ltd. v. Commissioner of Sales Tax, U.P. (1973) 32 S.T.C. 252, it was held that imported glass sheets sold as window-glasses would be taxed as glassware. We may, however, refer to a decision of the Madhya Pradesh High Court in Commissioner of Sales Tax, Madhya Pradesh v. Glass and Tiles House (1989) 74 S.T.C. 26 wherein it has been laid down that glassware does not include glass sheet and accordingly, glass sheets are taxable under the residuary entry.
7. Having considered the matter in all its aspects, and the authorities cited, we do not find ourselves in agreement that the view expressed by the Allahabad .High Court in the case of Tarkeshwarnath Agarwal and U.P. Glass Works Ltd. (supra). It cannot be denied that a glass sheet is glass simpliciter and it is a primary product which is used for producing goods or articles made of glass. In other words, it is glass simpliciter which is used for making or manufacturing ‘glassware’. If one were to go for purchasing ‘glassware’ one would definitely not accept or purchase a ‘glass sheet’ and for the like reason, if one were to go for purchasing glass sheet one would not accept glassware if that was offered by the seller. Therefore, though a glass sheet is glass, it cannot be equated with nor can it be termed as glassware or an article made of glass.
8. In the above view of the matter, we are of the opinion that glass sheets do not fall under entry 38 or 40 as the case may be of the schedule of goods taxable on the point of sale. However, we may observe, that since admittedly, the dealer in question had recovered tax at 12% from the customers, he shall not be entitled to any refund. Reference is answered accordingly.
P.K. Patra, J.