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A.P. STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, HYDERABAD VERSUS KOMAL BISCUITS MANUFACTURING CO. , PVT., LTD. VEMPALLE

    W.A. 406 Of 1996

    Decided On, 18 January 1996

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE LINGARAJA RATH & THE HONOURABLE MR. JUSTICE D. REDDAPPA REDDI

    For the Appearing Parties: C.V. Nagarjuna Reddy, V. Rajagopala Reddy, Advocates.



Judgment Text

LINGARAJA RATH, J.


(1) THE only question falling for consideration in this appeal is whether "biscuit" can be said to be "cake and Pastry" for the purpose of availing the benefit of a circular issued by the appellant-Board giving 25% concession in payment of power tariff to new industries, which have gone into regular production on or after 20th October, 1975.


(2) IN the circular, B. P. Ms. No. 151 (Commercial), dated 13-12-1978, the exemption in question was allowed and list of ineligible industries for which rebate was not allowed was appended. Item 35 of the list relates to Cake and pastry manufacturing. There is no dispute that the 1st respondent is a biscuit manufacturing industry, which had gone into production on or after 20th october, 1975. The industry availed the benefits of the circular but subsequently communication was made to the 1st respondent saying that rebate was mistakenly allowed to it as "biscuit" falls under Item 35. e. "cakes and Pastry" manufacturing and also making demand for recovery of the amount already allowed towards rebate. Writ Petition No. 5951 of 1986 filed challenging the same was disposed of on 30-1-1989, following the judgment in a batch of writ petitions, directing the government, in pursuance of whose policy direction, rebate had been allowed by the Board to decide whether biscuit manufacturing industries fall within the meaning of "cake and pastry" manufacturing. The 1st respondent filed Writ Petition No. 13318 of 1988 as the earlier representation to the government had not been disposed of. An order was passed on 11-9-1990, while retaining the writ petition on file, directing the government to dispose of the representation. On 19-8-1992, the government rejected the representation holding that "biscuit" has the same two basic ingredients sugar and flour of cereals like wheat etc. , which are also used for cake making for which they come under the same category and biscuit has the same definition of cake and pastry. It was said that G. O. Ms. No. 146, Industries and Commerce Dated 25-4-1991 did not show cake and pastry as specific item, but that by virtue of their process of manufacturing they come under item No. 30 which is "bread and Bakery products except semi/mechanised units". The order went on to say that since baking is the ultimate process in the two methods of manufacturing and also in the biscuit manufacturing, the clarification was being given of there being no discrimination between the same products manufactured by different methods. The writ petition was amended thereafter challenging the decision of the government dated. 19-8-1992. On 18-3-1993 the writ petition was disposed of holding that the 1st respondent is entitled to 25% rebate, challenging which the Board filed the present appeal. The learned single Judge, decided the case saying as follows:


"the only question is as to whether the biscuit manufacturing includes "cake and Pastry Manufacturing" also. By no stretch of imagination, the biscuit manufacturing can include the cakes and pastries. It is not the case of the respondents-A. P. State Electricity Board that under the guise of biscuit manufacturing, the petitioner is manufacturing cakes and pastries."


(3) THE classic test always applied to find out whether two articles are to be identically classified or not is the common parlance test. If in common parlance, two articles are understood in the same sense, they are to be treated as the same item, even though having different nomenclatures. There has been series of pronouncements of the Supreme Court and the High Courts on this question. In Indo International Industries vs. S. T. Commissioner, U. P. Supreme Court has observed:". . . . . . . . . . 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. . . . . " (Para 4) on that basis, it has been held that clinical syringes cannot be treated as glassware.


(4) IN Shri Nalini Ranjan Sirkar vs. Superintendent of Taxes, the question for consideration before the Supreme Court was whether "eggs", "live poultry" and "dressed poultry" could be regarded as "meat". The question was answered in the negative, reiterating the following principle stated in Delhi cloth and General Mills Co. , Ltd. :"in determine the meaning of connotation of words and expressions describing an article or commodity the turnover of which is taxed in the sales tax enactment, if there is one principle fairly well-settled, it is that the words or expressions must be construed in the sense in which they are understood in the trade, by the dealer and the consumer. It is they who are concerned with it, and it is the sense in which they understand it that constitutes the definitive index of the legislative intention when the statute was enacted. "same is the view of the Division Bench of this Court in State of A. P. vs. Brite poultry Farm.


(5) ON application of such test, it can hardly be said mat "biscuit" and "cake and pastry" mean the same thing in common parlance. One cannot walk into a bakery shop and ask for cake and pastry while meaning to purchase biscuits. Merely because the ingredients in making cake and pastry and that of biscuit are same, that is, sugar and flour of cereals like wheat etc., the manufactured items are not same. "chapati", which is made out of wheat and flour, can hardly be said to be "cake and pastry". We also cannot agree that biscuit and cake and pastry has the same definition and that the entry No. 30 of G. O. Ms. No. 146 of 25-4-1991 has any relevance to the question. It is common knowledge that biscuit manufacturing in the commercial sense means an industrial activity in a much larger scale. But, cakes and pastries are completely different items and are mostly made either at cottage industry level or domestic level, though industrial manufacturing cannot be ruled out. It is also brought to our notice by the learned counsel for the respondents that Indian Standards Institution has prescribed specifications for "biscuits" but, no material is placed before us by the learned counsel for the appellant that any specifications have been prescribed for "cake and pastry".


(6) THE purpose of exemption granted was as an incentive to set up new indust

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ries with the desire for industrialization of the State and obviously, cakes and pastries were included in the ineligible list because their manufacture was not considered by the authorities as an industrial activity or process. But, the same cannot be said of biscuit manufacturing process, which by and large, involves large scale industrial activity. We are, hence, unable to agree with the reasons adopted by the government in its clarification Memo No. l521/ifr/ 91-4, dated 19-8-1992 and hold that the 1st respondent had been rightly allowed the rebate and was entitled to it for the period stipulated. (7) IN the result, this appeal has no merit and hence dismissed with costs. Advocate's fee Rs. 500/-.
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