COMMISSIONER OF SALES TAX, RAWALPIND ZONE Versus MESSRS POTHOWAR OIL MILLS, GOJJAR KHAN
MUHAMMAD AMIN BUTT, J. - On one application made by the Commissioner of Sales Tax, Rawalpindi under section 17(1) of the Sales Tax Act, 1951, the Income‑tax Appellate Tribunal has forward the following question of law for decision by this Court:‑‑
"Whether on the facts and in the circumstances of the Ease the Tribunal was justified in holding that taramira oil is mustard oil and hence liable to sales tax at the reduced rate?"
2. The respondent assessee was engaged in the business of manufacture of oil and oil taramira seeds during the year 1958‑59. The assessment ms originally completed on 12‑3‑1963 whereby the sales of taramira oil and oil-cakes were assessed at Rs. 72,000, and Rs. 48,000, respectively on the basis of the figure adopted in the income‑tax assessment. The sale of oil was charged to sales tax at the rats of 6% presumably under Item No. 11 of the rated 27‑6‑1951 issued by the Central Government under section 7 of the Sales Tax Act, 1951, which prescribed a reduced of 6% in respect of the sale of mustard oil manufactured in Pakistan,
3. Later proceedings under section 28 of the Sales Tax Act were initiated by the Sales Tax Officer on the ground that Taramira oil was taxable at the standard rate and was not liable to tax at the reduced rate of 6 % under Item No, 15 of Notification No. 11, dated 27‑6‑1951. In the re‑assessment the total sales of oil earlier determined at Rs. 72,000, were subjected to the standard rate of 10% instead of the reduced rate of 6 % as aforesaid.
4. On appeal before the Appellate Assistant Commissioner the assessee placed reliance on the views expressed by the Provincial Public Analyst in his letter No. M‑14‑4279, dated 7‑7‑1964 to contend that Taramira oil was mustard oil and, as such, liable to tax at the reduced rate of 6 %. The learned Appellate Assistant Commissioner refused to accept the plea and rejected the appeal in this behalf. On further appeal the Income-tax Appellate Tribunal referred to certain observations made by Shiv Ram Kashyap in his work Lahore District Flora where all the seeds falling under the mustard group are shown to belong to Brassica Juncea. In this genus are included Brassica Juncea (arhon), Brassica Campestris (sarson) and Brassica napus (torie). The learned author had further expressed the view that "besides the mustard described above, a number of common vegetables also belong to gnus Brassica: cauliflower (phool gobhi), Cabbage (band gobhi) or (pat‑gobhi) knol khol (ganth gob') are different varieties of Brassica." The Tribunal further observed that the botanical name of taramira on the other hand is given as Eruca sativa and it is shown to be a plant of Fruca genus under a head different from Brassica genus. It also referred to the book entitled "Vegetable Fats and Oils" by George S. Jamieson, Ph. D. (pp. 225 to 227) in which mustard oils are listed separately from jamba oil which is the common name of taramira, and observed that the latter was closely related to rape‑seed oil and had affinity with mustard oil. In this publication mustard again is shown in Brassica genus and the jamba (tararnira) in Eruca genus. The Tribunal expressed the view that the Brassica genus to which mustard belongs and Eruca genus to which taramira belongs are both shown to be falling in the same parent family "Eruciferae".
The Tribunal proceeded to examine the question whether taramira falls under the term "mustard" used in Item No. 15 of the aforesaid notification. In construing the expression "mustard" the Tribunal referred to two certificates. The first issued by the Botanist, Ayoob Agricultural Research Institute, Lyallpur, scientific term but a common term is used to indicate not only different seeds belonging to Eruca family but also includes taramira which belongs to Eurce family (Eruca sativa). The other certificate issued by the Government Public Analist, Lahore, stated mustard family included a large number of herbs including taramira and that the term "mustard" is loosely applied generally to oil‑seeds of sarson, taramira rai etc. The Tribunal came to the conclusion that although it is clear that scientifically and technically taramira belongs to a different sub group of the main family of plants, it does belong to the family which in ordinary usage is described as mustard.
We have gone through the two certificates carefully and have conic that the stand taken by the Government Public Analyst is diametrically opposed to the statement of the Botanist. While the Botanist that mustard is neither a scientific nor a technical term and is used in common Parlance to cover the Brassica tourneforti, Brassica Alba and Brassica Juncea (rai of different colours and rays) and added that cabbages, turnips and cauliflowers etc. are also said to be the mustards and further Eruca sativa (Taramira) is also included in the group comprising the Public Analyst described it as a different family which includes a large number of herbs, vegetables and seeds including Cabbage, Cauliflower Turnip, Radish, Sarson, Toria, Taramira, Rai and others. The Public Analyst also referred to the specifications for mustard oil framed by the Government of Pakistan under PSS 25: 1958, which reads as follows:‑
"The material shall be obtained by a process of expression or extraction of clean and sound seeds of Brassica Juncea (Lahi rai or lahs) of Z, mixture of these seeds. It shall be clear and free from rancidity. ,adulterates, sediments, suspended and other foreign matter, separated water and added colouring and favouring substances."
6. Interesting enough the definition of mustard oil in the Pakistan standard specification does not support the assertion that the seeds of Eruca sativa (Taramira) would also be categorised as mustard oil. The Botanist and the Public Analyst clearly refer to the broader botanical definition of the word "mustard" when they assert that cabbages, turnips, radish, anti cauliflowers apart from Sarson, Toria, Taramira and Rai etc. also fail within the definition of mustard. It may be stated that in fairness to the Public Analyst that he has stated that these agricultural products fall within "mustard family". There is little doubt that the Botanist and the Public Analyst were referring to the botanical definition of the word "mustard" when they stated that the expression would include cabbages, radish, cauliflowers turnips, etc. In Craies on Statute Law Seventh Edition pages 162 and 163 the learned author refers to the judgment of Lord Tenterden in Attorney‑General v. Winstanlay (1831) 2 D & C1. 302, in which at page 310 the learned Judge observed that the words of an Act of parliament which are not applied to any particular science or art "are to be construed" as they are understood in common language" The learned author also referred to Gren fell v. I. R. C. (1879) 1 Ex, D 240, at p. 248 in whip Lord Pollock stated that "if a statute contains language which is capable of being construed in popular sense, such statute is not to be construed according to the strict or technical meanings of the language contained in it but is to be construed in its popular sense, meaning of course, by the words popular sens that sense which people conversant with the subject‑matter with which the statute is dealing would attribute to it. In Rama‑Vatar Budhaipresad v. Assistant Sales Tax Officer A I R 1961 S C 1325, the Supreme Court of India had the occasion to interpret the word "vegetable" which the petitioner claimed included bet, leaves, the Court made the following observations:‑
"Reliance was placed on the dictionary meaning of the word "vegetable" as given in the shorter Oxford dictionary where the word is defined as of or derived or obtained from plant or their parts. But this word must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance. It has not be defined in the Act and being word of every day use it must construed in its popular sense meaning that sense which peon conversant with the subject‑matter with which the statute is dealing would attribute to it. It is to be construed in common language denoting class of vegetables which are grown in a kitchen Ear& or use for the table."
The Court quoted with approval the observations of the Calcutta High Court in Dharamdas Paul v. Commissioner of Commercial Taxes A I R 1958 Cal. 302, where for the like reasons Yield that the term "vegetable,' meant "Sabzi, Tarkari and Sak. In the King v. Planters Nut & Chocolate Co. Ltd. 51 D T C 54, the Crown sought to recover tax in respect of sales of salted peanuts and Cashew nuts in the period May 19, 1948, to September 30, 1949. The defendant claimed that it was no liable to the tax on the ground that peanuts and cashew nuts are vegetables, of alternatively, fruit, within the meaning of Schedule III of the Canadian Excise Tax Act, 1927, and are, therefore, exempt from tax. It also claimed that peanuts are used as food in the form of soups, and are, therefore, "foodstuffs" under Schedule III. The court after considering the definition of the words "fruit and vegetables" given by various dictionaries and encyclopaedias came to the conclusion that from the botanical point of view, the evidence indicates that both the peanut and the cashew nut are vegetables in the wider meaning of that word, that each is a "fruit", the former belonging to the same class as peas or beans and the latter to the dry drupe class like the account, and that neither is a "rout". However, the words fruit and vegetables are not defined in the Act they are ordinary words in every-day use and are, therefore, to be construed according to their popular sense and not to their scientific or technical sense. Even in dictionaries, the peanut is included in the definition of "nut". The Customs Act also lists peanuts ire the "nut" category, which indicates that in the minds of legislators, nuts were not included in the categories of fruits or vegetables, and also that peanuts fell within the category of nuts. Although peanuts rare used as food, and while the heading of Schedule III is "Foodstuff", a it is apparent that not all foodstuffs are included and that that exemption is confined to ordinary staple table foods.
7. Before us the learned counsel for the respondent attempted to argue that according to the dictionary meaning of the word "mustard" Toria, Sarson Raya fall within his category. The learned counsel contended that Toria is the same thing as Taramira. We regret our inability to accept this contention which cannot be supported even from the botanical point of view. The former fall in the family of Eruca Satia while the latter falls in Brassica family.
8. Upon a careful consideration of the order of the learned Appellate Tribunal we have come to the conclusion that although the Members intended to follow the common meanings they have failed to adopt the common meanings they have failed to adopt the popular meaning and have, in fact, adopted the broader botanical definition of the word "mustard" in coming to the conclusion that Taramira like cauliflower, Turnip and Radish falls in the same family of mustard.
9. We regret our inability to accept the contention for the simple reason that while Toria oil which like "Sarson Ka Tail" is commonly known as "Karwa Tail" and is sold as a substitute for Sarson oil, Taramira essentially a pungent, bitter and irritating oil. Even according to the definition is cited before us Taramira is not included in the expression Toria on son which is an entirely different substance. In the result we answer the question posed for our consideration in the negative.
10. Before we close we tray state that although before the Appellate Assistant Commissioner the argument was canvassed that Taramira is an edible oil used for human consumption, the plea appears to have been dropped before the Appellate Tribunal and wile we decide the question referred to us, we may not be understood to have agreed with the assertion of the Department before the Appellate Assistant Commissioner that Taramira is nut an edible oil. As this question does not arise, we refrain from expressing any view in this behalf.
11. Under these circumstances there shall be no order as to costs.
Order accordingly.