JUDGMENT
A. Pasayat, J.
1. On being moved by the Revenue under Section 24(2) of the Orissa Sales Tax Act, 1947 (in short, the ‘Act’), this Court directed the Orissa Sales-tax Tribunal (in short, the ‘Tribunal’) to refer the following question for opinion.
“Whether on the facts and in the circumstances of the case the Sales-tax Tribunal is justified to hold that lime is not a paint and the same is taxable as an unspecified commodity @7%, though lime-stone out of which lime is produced is taxable @ 10% ?”
Pursuant to that direction a reference has been made.
2. Facts on record, necessary to be recapitulated for disposal of the reference are as follows :
M/s. Konaik Hardware Mart (hereinafter referred to as the ‘assesses’) deals with hardware, paints, lime etc. During assessment for the assessment year 1980-81, the assessing officer found that assessee had paid tax @ 7% of the sales of time. He did not accept the assessee’s plea that it was an unspecified item. He was of the view that lime comes out of limestone which is taxable @10%. But lime produced out of limestone is generally used for painting of buildings. It can be used as a paint, but not as mineral, which is also taxable @ 10% as per serial No. 66 of list of taxable goods. In appeal, the Assistant Commissioner of Sales-tax, Appellate Unit, Rourkela (in short, the ‘ACST’) observed that although lime was manufactured out of limestone is a chemical used in pulp and paper industry. Bleaching powder is also manufactured out of lime. It is also mostly used in white-washing or painting the wall. Accordingly it was held that assessing officer was justified in levying tax@10%. In second appeal, Tribunal held that the forums below had erred in their conclusion. It did not agree with the view of forums below that lime is nothing but paint. It was not denied before the Tribunal that lime is mostly used for white-washing of building and as a chemical in paper industries. It. was observed that when lime mixed with water is applied to wall it cannot be said that walls are painted thereby. Further, lime is never used for painting of any other articles such as furniture and other goods.. For the earlier years (i. e., 1977-78, 1978-79 and 1979-80) also similar view was taken in respect of the assessee, and there was no reason to take a different view. An appli cation for reference was filed under Section 24(1) of the Act to refer the question indicated above for opinion of this Court. The Tribunal with reference to the conclusions arrived at by it rejected the application. This Court has been moved under Section 24(2) of the Act and pursuant to the direction given, a question has been referred for opinion.
3. There is no appearance on behalf of the assessee in spite of notice. Learned counsel for the revenue submitted as follows :
(i) Lime and lime-stone are one and the samething and there is no perceptible difference between the two.
(ii) Under the generic entry ‘minerals’ against serial No. 63 of the list of goods liable to salss-tax, lime-stone does appear like Manganese, Dolomite, Fire-clay etc.
(iii) When it has to be taxed under a specified item, there is no good ground to tax it under unclassified item.
(iv) Lime-stone is included in mineral as stated in Stroud’s Judicial Dictionary.
4. The question referred to this Court consists of two parts. The first relates to whether lime is taxable under Entry 6S as paint and the second relates to whether it can be taxed under Entry 63 as lime-stone which is taxable at the rate of 10%. The second point does not appear to have been considered by the Tribunal as if it was not urged before the Tribunal. The parties proceeded on the basis as if the dispute was whether lima was a paint or not. Reference was made to Entry 66 of the list of the taxable goods.
5. We shall first deal with the question whether lime can be said to be paint in order to be covered by Entry 66 of the list of taxable goods. Entry 66 reads as follows :
“66. Paints and varnishss, acids, dyes lacquers, enamels, glue paints, turpentine oil, duplicating ink, polish, boot-polish.”
Originally the Entry was “Paints and Varnishes”, as per Entry 54 from 1-1-1958 to 30-4-1976, With effect from 1-5-1976 the Entery was amended, and Entry 63 which read as follows came into existence.
“63. Paints and varnishes, acids, dyes, lacquers, enamels, glue paints, turpentine oil, duplicating ink, polish and boot- polish.”
The Entry continued as such, but was numbered as Entry 66 with effect from 1-1-1978 up to 31-3-1982. This is the period with which we are concerned. It is clear that right from 1-1-1958 the expression “Paints and Varnishes” continues. The term “paints” occurring in the Entry is, therefore, to be construed ejusdem genesis with the word ‘Varnishes” occurring in the Entry.
6. In Deputy Commissioner of Sales-tax v. Haji V. K. Hameed and Co. (1981) 47 STC 238, it was observed white cosidering the question whether turpentine can be said to fail within the entry ‘paints, colours, lacquers and varnishes’ that turpentine is, no doubt, used as a solvent thinner or dissolvent in paints and varnishes but it cannot by itself be applied to other substances for the purposes of imparting colour or shine. In Commissioner of Sales-tax v. Colour Chem. Limited :.(1968) 22 STC 90, the Bombay High Court observed that the term ‘paints’ occurring in Entry 39 of the Bombay Sales-tax Act, 1959, should be construed ejusdem generis with the words lacquers and varnishes’ occurring in the said entry. So construed, the entry was intended to apply to liquid substances, which are capable of being used by themselves for applying to other substances for the purpose of imparting colour or shine, as the case may be. in common parlance, it is a solid colouring material, pigment, mixed with oil or liquid and used to give colour to a substance. According to Corpus Juris Secundum, Volume LXVII, ‘paint’ is a preparation of a pigment or coloring substance made by mixing with some suitable vehicle, as oil, water, or varnish, and forming, when applied to a surface, an adhesive coating ; also the pigment or solid coloring matter alone, or a cake of it. ‘Varnish ‘when used as a vero, means ‘to cover with a liquid which produces, when dry, a hard glossy surface’. The word ‘varnish’ when used as a noun means a liquid preparation. There are to classes of varnishes; one class is ‘oil varnishes’ which are essentially solutions of resins (natural or artificial) or of asphalt in dying oils, and the other class is ‘spirit varnishes’ which are solutions of resins (natural or artificial), asphalt, cellulose, esters, etc. in volatile solvents, as alchohol, spirits or turpentine or amyl acetate. A common spirit varnish is a solution of shell aoe in alchohol {vide Websters’ New International Dictionary, Second Edition, Volume 2, page 2820).
7. Lime is slimy or gluey material ; the white caustic earth (calcium oxide, quick lime, caustic lime ) got by calcining calcium carbonate (as limestone), calcium hydro-oxide (slaked lime) got by adding water to quick-lime (loosely) limestone or calcium carbonate. It is a sticky substance made from a bark for catching small birds; white caustic alkaline earth (calcium oxide) got by burning limestone; kinds of rock, chiefly carbonate of calcium and used for making mortar, round fruit smaller and more acid than lemon, ornamental tree with heart shaped leaves and small fragrant yellowish blossom. It is a white substance, calcium oxide, CaO obtained by the action of heat on limestone, shells and other material containing calcium carbonate and used in making mortar and cement and in neutral zing acid soil, also, called quick-lime, burnt-lime, caustic- lime.
8. In common parlance lime is not considered to be paint, and is treated and considered to be different. The Tribunal’s conclusions therefore are irreversible. We answer the question by observing that the Tribunal was justified in holding that lime was not a paint and was to be taxed as an unspecified commodity @ 7%. So far as the question whether lime can be taxed at the rate applicable to lime stone, is concerned, we decline to answer the question as it does not flow from the order of the Tribunal.
The reference application is accordingly disposed of. No. costs.