P.A. THLLLAL CHIDAMBARA NADARversusTHE ADDL. APPELLATE ASSTT. COMMISSIONER, MADURAI & ANR.

                                                              339


                   P.A. THlLLAl ClilDAllBARA NADAR                   A
                                 v.
                  THE ADDL. APPELLATE ASSTI •
                  COMMISSIONER, MADURA! & ANR.

                          JULY 29, 1985
                                                                     B
[V.D. TULZAPURKAR, SABYASACHl MIJKHARJl AND RANGANATH MISRA, JJ.]

      Tamil Nadu General Sales Tax Act, 1959
      'Coconut' - Whether 'fresh fruit' or 'vegetable' - Whether
exempt from levy of sales ·tax.
      Words & Phrases                                                C
      'Coconut' - Whether 'fruit' or 'vegetable' - Tamil Nadu
General Sales Tax Act 1959.

      Under G.P. No. 1764 dated 5.4.1960 as amended on 22.12.1960
issued under the Tamil Nadu General Sales Tax Act, 1959 the
Government had exempted "all sales of vegetables (other than the     ])
dried awl. dehydrated vegetables) fresh fruits, betal awl plantain
leaves, flowers, eggs, meat awl fish (other than canned meat awl
fish) from the levy of sales tax under the Act."

     The High Court, held that since ripened coconut in which the
appellant was dealing as a grocer, could not be regarded as a
"fresh fruit" or a "vegetable", the appellant's sales tum-over       E
in coconut in each of the Assessment Years 1967-68, 1968-69 awl
1969-70 was liable to sales tax awl includible in its taxable
turn-over.

      Dismissing the Appeals
                                                                     F
      lllWl: ·(by the Court-per Tulzapurkar, Sabyasachi Mukharji
awl Ranga:nth Misra JJ.)

      1. The High Court was right in its conclusion that the
appellant's sales turnover in coconut was not exempt from the
levy of sales tax. [343 E, 344 G]                                    G

      2. ln interpreting items in statutes like the Excise Tax
Acts or Sales Tax Acts, whose primary object is to raise revenue
awl for which purpose they classify diverse products articles awl
substances resort should be had not to the scientific awl techni-
cal meaning of the terms or expressions used but to their popular    H
meaning, that is to say, the meaning attached to them by those
dealing in them. [342 C, 343 HJ
"
     340               SUPREME COURT REPORTS       [1985] SUPP.2 s.c.R.


           lndo International Industries v. Commissioner of Sales Tai,
     Uttar Pradesh [1981] 3 s.c.R. 294 referred to.
                                                                           '
           (Per i'ubapurkar, .J.)

            l• It cannot be disputed that a cocollllt would be a 'fruit'
B     in the botanical sense but unless it can be said to be a 'fresh
      fruit' it will not fall within the exemption notification. Simi-
      larly a coconut may be available in ·a vegetable market but
      because'cif that it does not become a 'vegetable. It is well-known
      that the kamel of the coconut is used as an igredient in the
      culinery preparations for adding taste to the food on the table
    · but it is hardly used as a substantial article of food on the
c     table. ·'Fresh fruits' and 'vegetables' being household articles
      of everyday use will have to be construed in their popular sense,
      meaning the sense in which every householder will understand
      them. A householder when asked to bring some 'fresh fruit' and
      some 'vegetable' for the evening meal would obviously not bring
      coconut. [342 F-343 A]
             '
D           His Majesty the King v. Planters Nut and Chocolate Company
     Limited. [1951] C.L.R. (Ex.) 122 and Commissioner of Sales Tax v,
     Jaswant Singh Cham Singh [1967] 2 s.c.R. 720 referred to.

            2, The legislative history ·of the earlier exemption noti-
     fications issued by the State Government are of no assistance to
E    the appellant. All these earlier notifications clearly show that
     coconut .JiSS always subject to sales tax till G.P. No. 1764 dated
     April 5; 1960 was issued under the 1959 '\ct. There is no material
     to show that the Government had changed its view and exempted
     coconut from taxation under the 1959 Act. Under the .·earlier
     notifications merely 'fruits' had been exempted from levy of
F    sales tax and since coconut would have come"within the category
     of fruits, the same was expressly excluded from the exemption
     thereby making the sale thereof liable to tax. [343 B-D]

           (Per Sabyasacbi llukharji, .J.)

G          l. It cannot be disputed that ripened coconut will not be
     a "fresh fruit" in terms of the said notification; One cannot be
     sure on the aspect, that ripened coconut cannot be considered to
     be vegetable. Whether ripened coconut can be considered to be
     'vegetable' or 'fruit' in any part of India will depend upon the
     evidence available. Tastes vary, habits differ, and food served,
H
 P.A.THIUAL v. THE ADDL. ASSTI. COMMNR. [TULZAPURKAR, J,]        341

                                                                       A
prepared and cons.m.e.i at the tables in different parts of the
COlllltry alao. vary. Therefore, it is safer not to rest the deci-
sion on ~ubjective ideas if possible. [344 B-Cj

      2, It is for the asses see who claims exemption to adduce
evidence that a particular article is an exempted item, and if he
                                                                       B
cannot or if he fails to do so, the revenue may proceed on its
basis. In such a situation, the assessee should have. such an
opportullity. That opportunity cannot be foreclosed. It cannot
categorically be said that ripened coconut colild never be
considered to be 'veget!f,ble' • In this case the asses see has
adduced no evidence. [344 I>-E]
                                                                       c
      CIVIL APPELLATE JURISDICTION       Civil   Appeal Nos. 1434-35
of 1973.

      From the Judgment and Order dated 20.12.1972 of the Madras
High Court in Writ Petitions No~. 1439.and 3425 of 1970.
                                                                       D
                                   AND

      Civil Appeal No. 1003 of 1975.

      From the Judgmeqt ·.~ Order· dated 6.3.1974 of the Madras
High Court in T.c. No;· 71 of 1974. ·
                                                                       E
      J, Ramamurthy foF the Appellant.

      _s.~,besaLand A.v.Rangam for the Respondent •

  . • · · the foilowing Judgments· of the Court were delivered
                                                                           F
       TULZAPURKAR, J.    Whether a coconut (neither tender nor
dried ·but a ripened coconut with or without husk) is a "fresh
fruit" or a "vegetable" so as to earn exemption from the levy of
sales ·tax under G.G. No. 1764 dated 5.4.1960 as ·amended on
22.12.1960 issued under the Tamil Nadu General Sales Tax Act,
1959. is the question raised in these appeals.                             G

    The High Court has held that under the aforesaid notification
 the Government had exempted "all sales of vegetables (other than
 the dried and dehydrated vegetables) fresh fruits, betal and
 plantain leaves, flowers, eggs, meat .and fish (other than canned
 meat and fish)" from the levy of sales tax under the 19S9 Act but         H
 since a ripened coconut in whkh the appellant was dealing as a
      342               SUPREME COURT REPORTS      [1985] SUPP.2 s.c.R •   I
. A
      grocer, could not be regarded as a"fresh fruit" or a "vegetable"
      the appellant's sales turn over in coconuts in each of the
      Assessment Years 1967-68, 1968-69 and 1969-lO was liable to sales
      tax and includible in his taxable turnover. It is this view of
      the High Court which has been challenged before us by counsel for
      the appellant-assessee.
 B

            The canon of construction to be invoked in these types of
      statutes has been repeatedly enunciated. in several decisions of
      this Court but it is not necessary to refer to all of them. In
      Iodo international Industries v. Comdssiooer of Sales Tax, Uttar
      ptadesh [1981] 3 S.C.R.294, this court ruled thus:
 c
                 "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
 D
                 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 enact-
                 ment 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
E
                 adopted."

           If regard be had to this rule of construction, the question
      raised will have to be answered against the appellant. On the
      first aspect of the question it can not ·be disputed that a
      coconut would be a'fruit' in the botancial sense but unless it
F
      can be said to be a 'fresh fruit' it will not fall within the
      exemption notification. Similarly a coconut may be available in
      a vegetable market. but because of that it does not become a
      'vegetable'. It is well-known that the kernel of the coconut is
      used as an ingredient in the culinery preparations for adding
      taste to the food but it is hardly used as a substantial article
G
      of food on the table. The concerned articles namely, 'fresh
      fruits' and 'vegetables' being household articles of everday use
      for the .table these will have to be construed in their popular
      sense meaning the sense in which every householder will under-
      stand them. Viewed from this angle, the most apposite test would
      be the one adopted in the case of HtS Majesty the King V•
H
      Planters Nut and Chocolate Company Limited [1951] C.L.R. (Ex.)
      P.A.THILLAI v. THE ADDL. ASSTI. CQMMNR. [MUKHARJI, J. j   343


.122 (which decision was approved by this court in ComoissiODer of     A
 Sales Tax v. Jaswant Singh Charan Singh) [1967 J 2 s.c.R. no.
 Would a house holder when asked to bring home soffie 'fresh fruit'
 and some 'vegetable' for the evening meal bring           coconut?
 Obviously, the answer is in the negative.

     Counsel for the appellant sought to rely upon the legis-          li'
lative history by referring some of the earlier  e~emption noti-
fications issued by the State Government under the earlier Madras
General Sales Tax Act, 1939 which were operative till the Tamil-
nadu General Sales Tax Act, 1959 was passed but in our view such
reliance is of no avail to the appellant. In the first place all
these earlier notifications clearly show that coconut was always       c;
subject to sales tax.till G.Q. No. 1764 dated 5.4.1960 was issued
under the 1959 Act and there is no material to show that the
Government had changed its view and exempted coconut from
taxation under the 1959 Act.       Secondly, under the earlier
notifictions merely 'fruits' had been exempted from levy of sales
tax and since coconut would have come within the category of           D
fruits the.same as expressly excluded from the exemption thereby
making the sale thereof liable to tax. The legislative history,
 therefore, is of no assis~ance to the appellant. Similarly',   how
 coconut was dealt with under the amendment introduced    by    the
 Tamil Nadu Act 2 of 1970 by which coconut was brought under
 single point taxation would be immaterial.

      In v1ew of what is stated above we feel that the High Court
 was right in its conclusion that the appellant's sales turnover
 in coconut was not exempt from the levy of the sales tax. The
 appeals are, therefore, dismissed with no order as to costs.

      SABYASACIU MIJKllARJI, J, Under G.o •. No 1764 dated 5.4.1960,   F
 as amended on 22 .12 .1960, issued under the Tamilnadu General
 Sales Tax Act, 1959, 'fresh fruit' and 'vegetable' are exempt
 from the levy of sales tax• Whether ripened coconut with or
 without husk can be considered to be 'vegetable' is the question
 in these appeals.
                                                                       G
      I respectfully agree with my learned brother Tulzapurkar J,
 that principles to be adopted in deciding that question are well-
 -settled i.e. in interpreting items in statutes 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 of           H
 the expressions used, but to their popular meaning, that is to
     344               SUPIUlMJ:: COURT REPORTS   [1985] SUPl'.2 s.c.R.


A    say, the meaning attached 'to them by those dealing in them.
     Fresh fruit' or vege.table' has not been defined in the Act.

           My learned brothers· have come to the conclusion that it
     cannot be 'disputed that ripened coconut will ·not be a 'fresh
     fruit,. in terns of the said notification, I respectfully agree.
IS   B.ut my learned brothers have also found that ripened coconut
     cannot be considered to be 'vegetable', I am not so sure on this
     aspect. · Whether ripened coconut can be considered to be a
     'vegetable' or 'fruit' in any part of India will depend upon the
     evidence. available. Tastes vary, habits ·differ and food served,
     prepared and consumed at the tables in different parts of the
C    country also vary. Therefore, it is safer not to rest our deci-
     sion on·our subjective ideas, if possible. I, however, respect-
     fully agree with the conclusion reached by my learned brothers
     that the appeala should be dismissed. ·

          It is well-settled that it is for ·the assessee who claims
     exemption to adduce evidence that a particular article is an
D    exempted item and if he cannot or if he fails to do so, then the
     revenue may proceed on its basis. In such a situation, the
     assessee should have such an opportunity. We cannot foreclose.
     such an opportunity. We cannot categorically say that ripened
     coconut could never be considered to be 'vegetable'. But in this
     case the assessee has adduced no evidence. In the premises, the
E.   assessee must fail and I respectfully agree with the order
     proposed by my learned brothers.




                                                    Appeals dismissed.