The interpretation of the term "glassware" in the context of the Orissa Sales Tax Act, 1947, and the entitlement of the Tribunal to annul assessments on the ground of hardship.

JUDGMENT

R. N. MISRA, J. - On applications by the State of Orissa made under section 24(2)(b) of the Orissa Sales Tax Act of 1947, this court directed the Tribunal to state a case and refer the following two questions for opinion of the court :

"(1) Whether, on the facts and in the circumstances of the case, the Sales Tax Tribunal is correct in annulling the assessments by holding that thermometers, lactometers, syringes, eye-wash glasses and measuring glasses do not come within the ambit of serial No. 38 of the schedule of taxable goods ? and

(2) Whether, the Tribunal is entitled to annual assessment in respect of sale of plastic rubbers and plastic pieces on the ground of hardship ?"

2. The assessee is a medical stores at Puri. The periods of assessment are 1966-67, 1967-68 and 1968-69. While examining the assessee's accounts the Sales Tax Officer found that in respect of the sale turnover of thermometers, lactometers, syringes, measuring glasses and eye-wash glasses as also droppers and certain other alleged plastic articles the assessee had collected and paid tax at 5 per cent. As the assessing officer was of the view that all the named articles except plastic materials came within the meaning of glassware, the sale thereof was taxable at 7 per cent of the price. Similarly, in regard to sale of plastic goods a higher rate of tax exigible. Additional demands raised by the Sales Tax Officer were impugned by the assessee in appeal before the Assistant Commissioner. He, however, agreed with the assessing officer. In second appeal the assessee's contention waived with the Tribunal. The Tribunal stated that under sub-section (1) of section 5 of the Act provision for rate of tax has been made. The general rate is 5 per cent. The first two provisos authorise the State Government to vary the rate of tax by notification. The first proviso reads thus :

"Provided that the State Government may, from time to time by notification and subject to such conditions as they may impose, fix a higher rate of tax not exceeding seven per cent or any lower rate of tax payable under this Act on account of the sale or purchase of any goods or class of goods specified in such notification."

Notification No. 33927-F dated 30th December, 1957, has been made in exercise of powers conferred by the first proviso to sub-section (1) of section 5. Under item No. 38, glassware, china-clay goods excepting bottles, lamps and lantern chimneys and earthenware pottery are subject to tax at 7 per cent. The dispute in the matter before us is the assessee's claim that the items indicated above are not glasswares and, therefore, do not come within the purview of item No. 38 of the notification in question. The taxing department is of the view that these articles are glasswares and, therefore, exigible to tax at 7 per cent. Glassware has no definition under the Act. The Supreme Court has indicated in three pronouncements, Ramavatar Budhaiprasad v. Assistant Sales Tax Officer [[1961] 12 S.T.C. 286 (S.C.)], Commissioner of Sales Tax v. Jaswant Singh Charan Singh [[1967] 19 S.T.C. 469 (S.C.)] and Commissioner of Sales Tax v. S.N. Brothers [[1973] 31 S.T.C. 302 (S.C.)], that the meaning of the term in common parlance, in the absence of a definition, has to be adopted. In the last of the cases cited above, Dua, J., while speaking for the court quoted with approval the observation of the Madras High Court in the case of Kishinchand Chellaram v. Joint Commercial Tax Officer [[1968] 21 S.T.C. 367], to the effect that the import and content of the words having not been defined in the Sales Tax Acts, courts are bound to have recourse to the meaning attributable to such words by persons who are dealing in and utilising such goods. The extreme, peculiar and scientific meaning of the goods, which might sometimes deviate from the popular meaning, cannot prevail. "Glassware" as understood from the Shorter Oxford English Dictionary is "articles made of glass". In popular sense glasswar