1. Dispute regarding whether a ball point pen refill falls under Entry 135 of the First Schedule to the Kerala General Sales Tax Act, 1963. (Para 1 , 2 )
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2000 Supreme(SC) 283
SUPREME COURT OF INDIA
N.Santosh Hegde : Ruma Pal : S.P.Bharucha
State Of Kerala
Versus
V.Padmanabhan
Case No. : 4606 , 4607 of 1998
Date of Decision : 2/3/00
A ball point pen refill is a component of a pen and not a "pen" itself in common and commercial parlance, as it is not intended to be used independently of the pen body.
Headnote:(A) General Sales Tax Act - First Schedule, Entry 135 - Interpretation of "Pens, pencils and fountain pens" - Whether a refill of a ball point pen falls within the scope of the said entry - A refill is a part of the ball point pen and cannot by itself be regarded as a pen, regardless of its importance to the device - In common and commercial parlance, a pen and its refill are different commodities with distinct and independent identities (Para 3) - A ball point refill is a substitute for ink and provides the nib; while it can write, it is not intended to be used, and cannot conveniently be used, without being inserted in the pen body (Para 5).
Facts of the case:
A dispute arose regarding whether the refill of a ball point pen is taxable under the entry "Pens, pencils and fountain pens" in the First Schedule of the relevant Sales Tax Act. The Tribunal held that the refill was a part of the pen and not a pen itself, whereas the High Court held that the refill was the actual writing device and the body was merely for aesthetics.
Findings of Court:
The court found that the refill is not intended for use without the pen body and therefore does not constitute a "pen" in commercial parlance.
Issues: Whether the refill of a ball point pen falls within the scope of Entry 135 of the First Schedule to the General Sales Tax Act.
Ratio Decidendi: The court ruled that a refill, being a substitute for ink and requiring a pen body for convenient use, does not possess the independent identity of a "pen" in common and commercial parlance.
Result: Appeals allowed.
Legal Category Hierarchy
Table of Contents
2. Whether a refill is a distinct commodity in commercial parlance or the primary writing device that defines a pen. (Para 3 , 4 )
3. A refill serves as a substitute for ink and is not intended or convenient for use without being inserted into a pen body. (Para 5 )
4. A ball point pen refill is not a pen as it is not intended for independent use in commercial parlance. (Para 5 )
5. Appeals allowed; High Court order set aside and Tribunal order restored. (Para 6 , 8 )
6. Does a ball point pen refill fall within the scope of pens under the Kerala General Sales Tax Act, 1963?
No. The court held that a refill is a substitute for ink and, while capable of writing, is not intended or convenient for use without being inserted into a pen body. (Para 5 )
7. Is a refill considered a separate commodity from a pen in commercial parlance?
Yes. The court affirmed that a pen and its refill are different commodities with distinct and independent identities, with the refill being a part of the pen. (Para 3 , 5 )
(1) C.A.NOS. 4606-4607/1998 : Does the refill of a ball point pen fall within Entry 135 of the First Schedule to the Kerala General Sales Tax Act, 1963? The Entry reads: "Pens, pencils and fountain pens".
(2) THE authorities and the Tribunal took the view that the refill fell outside the scope of the said Entry, but the High Court, in a tax revision case filed against the order of the Tribunal, took a different view.
(3) ACCORDING to the Tribunal, the refill was a part of the ball point pen. It could not by itself be regarded as a pen, however, pivotal it might be to the ball point pen. It recorded that in common and commercial parlance, a pen and its refill were different commodities with distinct and independent identities.
(4) THE High Court found this view erroneous. It held that the body or cover of the ball point pen was there only to beautify the refill and make it more attractive in appearance. It was the refill which made writing possible and it alone was the writing device.
(5) WE must not immediately that there is no evidence on the record before us as to how a refill is regarded by the public or in commercial parlance, but we have used ball point pens for long enough to be able to give an authoritative opinion. As we see it, the ball point refill is the substitute for the ink that is filled from time to time in a fountain pen and it provides the ball or nib thereof. While the refill can write, it is not intended to be used, and cannot conveniently be used, for that purpose without being first inserted in the ball point pen. We do not think, therefore, that the High Court was right in overturning the view taken by the Tribunal that the refill fell outside the scope of the said Entry.
(6) THE appeals are allowed. The order under appeal is set aside and the order of the Tribunal is restored.
(7) NO order as to costs.
(8) C.A. No. 6583/99 : Following the judgment delivered in C.A. Nos. 4606-4607/98, the appeal is allowed. The order of the High Court and the Tribunal are set aside.
(9) NO.ORDER as to costs.
