Holding

The 1985 notification’s exclusion of paper products, including cardboard and cartons, remains effective and bars the concessional tax rate for cardboard boxes, though the factual question of whether the appellant’s specific boxes constitute a "carton" is to be decided by the Deputy Commissioner.

Summary

Parle Biscuits Ltd., a biscuit manufacturer, sought the concessional 4% sales‑tax rate on cardboard (corrugated) boxes used for packing, a benefit previously enjoyed by its predecessor under Section 13(1) of the Bihar Finance Act, 1981. After the 1985 amendment inserting clause (e) to Section 13(1) and the issuance of Notification No. S.O. 154 (28‑Jan‑1985) excluding "paper (of all kinds)" including cardboard, cartons and paper bags, the tax authorities denied the concession and demanded 10% tax. The company contended that the notification excluded only "cardboard" and not "cardboard boxes", relying on the earlier Card Board Products case. The Supreme Court held that the language of the 1985 notification was clear and not overridden by the amendment; therefore cardboard boxes fell within the exclusion and the concessional rate could not be granted. However, the Court noted that whether the specific boxes used by the appellant qualify as "carton" is a factual question and remitted that issue to the Deputy Commissioner of Sales Tax. The appeal was dismissed with no costs awarded.

Issues considered

The effect of Notification No. S.O. 154 (1985) on the applicability of the concessional tax rate under Section 13(1)(e) of the Bihar Finance Act, 1981.
Whether "cardboard box" is covered by the entry "carton" or "paper" in the notification.
Whether the amendment inserting clause (e) to Section 13(1) supersedes the earlier notification.
The interpretation of "amendment" versus "repeal" under the Bihar and Orissa General Clauses Act, 1917.

Legislation cited

Bihar Finance Act, 1981s. 13(1), s. 21(1)
General Clauses Act, 1897s. 24

Subjects

sales taxconcessional ratestatutory interpretationamendment vs repealnotificationcardboard boxcartonBihar Finance Acttax exemption

Judgment

A MIS. PARLE BISCUITS (P) LTD.
v.
THE STATE OF BIHAR AND ORS.

DECEMBER 15, 2004

B [ARIJIT PASAYAT AND C.K. THAKKER, JJ.]

Bihar Finance Act, 1981 : Sections 13(1) and 21(1) (as amended by
Amendment Act, 1985).

Sales Tax-Packing material-Concessional rate of tax in respect of-
C Scope ofNotification No. S.O. 154 dated 28.1.1985-Packing material made
out ofpaper~Exclusion of-Company engaged in manufacture of biscuits-
Jts predecessor company given the benefit of concessional rate of sales tax
on purchase of cardboard (corrugated) boxes used for packing biscuits-
However, it was denied the benefit of concessional rate of tax in respect
D of cardboard boxes and asked to pay 10% tax in view of Amendment Act
of 1985-Writ petition filed contending that what was excluded in the 1
Notification was 'cardboard' and not 'cardboard boxes '-High Court held
that packing material made out of paper was not eligible for concessional
rate of tax-Correctness of-Held : In a taxing statute there is no room
for any intendment and regard must be had to the clear meaning of the
E words-The entire matter is wholly governed by the language of the·
Notification-The effect of the Notification has not been taken away by the
amendment of S. 13(1) by the Amendment Act, 1985-There cannot be an
universal application of rigid standard for determining the question whether
'carton' would include 'crdboard box '-Hence, matter remitted to Deputy
F Commissioner of Sales Tax to determine the said question.

Interpretation of Statutes :

"Amendment" and "repeal"-Distinction between-Held: There is no
real distinction between amendment and repeal-When a statutory provision
G is amended to a limited or a small extent then it is termed as amendment,
and when the provision is extensively amended then it is called repeal-
After repeal there is a reenactment to the law.

Words & Phras.es :

H "Paper", "carton", "cardboard" and "cardboard box"-Meaning of
954
PARLE BISCUIT (P) LTD. v. STATE 955

The appellant-company was engaged in the manufacture of biscuits A
and its predecessor was given the benefit of concessional rate of sales
tax on purchase of cardboard/corrugated boxes used for packing bis-
cuits. The benefit of concessional rate of sales tax was given under
Section 13(1) of the Bihar Finance Act, 1981. However, the appellant
was denied this benefit and was asked to pay sales tax @ 10% or
purchase of cardboard corrugated boxes in view of Notification No. S.O.
B
154 dated 28.1.1985 and insertion of S. 13(l)(e) in the Act by the Bihar
Finance Amendment Act, 1985.

The appellant filed a writ petition before the High Court contend-
ing that what was excluded by the Notification was "cardboard" and not C
"cardboard box". The High Court dismissed the writ petition holding
the packing material made out of paper was not eligible for concessional
rate of sales tax. Hence the appeal.

Disposing of the appeal, the Court
D
HELD : 1. Description of the goods as indicated in Serial No. 12
of the Notification No. S.O. 154 dated 28.1.1985 relates to "papl!r (of all
kinds)" and the inclusive definition in clear terms refers to certain paper I.•

products like "cardboard" and "cartons". Had it been the intention to
cover paper products of all kinds in the expression "paper" there was
no necessity for including definite paper products. (964-F)
E

2. In popular parlance the words "paper" is understood as meaning
a substance which is used for bearing writing or printing, or for packing
or for drawing on, or for decorating, or covering walls. [965-G)
F
State of U.P. v. Kores India Limited, (1997) 39 STC 8, relied on.

Parameswar Lal Bihani v. Commercial Tax Officer, [2000) 9 SCC
259; State of Kera/av. V. Padmanabhan, [2000) 9 SCC 262 and Card
Board Products v. State of Bihar, (1989) 73 STC 438, referred to.
G
Chamber's Distionary, Oxford Dictionary. Webster's Dictionary. En-
cyclopedia Britannica, Vol. 13, 15th" Edn. Random House Dictionary
(Unabridged Edition). Oxford Advanced Learners' Dictionary, 6th Edn. p.
917, McGraw-Hill Encyclopedia ofScience & Technology Vol. 13 p. 75 and
The Encyclopedia Americana, International Edition p. 261, referred to.
H
956 SUPREME COURT REPORTS (2004) SUPP. 6 S.C.R.

A 3. It is well established that in a taxing statute there is no room for ,
any intendment and regard must be had to the clear meaning of the
words. The entire matter is governed wholly by the language of a
notification. If the taxpayer is within the plain terms of the exemption,
it cannot be denied its benefit by calling in aid any supposed intention
B of the exempting authority. If such intention can be gathered from the
construction of the words of the notification or by necessary implication
therefrom the matter is different, but that is not the case here. [967-F]

Hararaj Gobardhandas v. H.H. Dave, [1969] 2 SCR 253, relied on.

C Salomon v. Salomon, [1997) AC 22 and Crawford v. Spooner, 7
MCO. P.C.C. 8 referred to.
.·
4. Section 27 of the Bihar and Orissa General Clause Act, 1917
corresponding to Section 24 of the Central Clauses Act 1897 provide for
D "Continuation of Orders" etc. issued under Enactments repealed and
reenacted. According to the provision unless a different intention ap-
pears from the amended or reenacted provision, the notification issued
under the earlier enactment, if not inconsistent with the reenacted
provision, shall continue in force and be ~eemed to have been issued
under the reenacted provision, unless and until it is superseded by
E issuance of a fresh notification. It is true that the Section does not speak
of an amendment. But the provision is equally applicable in cases of
amendment. There is no real distinction between repeal and amend-
ment. The latter is wider in terms and inclqdes deletion or abrogation
in existing statute. When the statutory provision is amended to a limited
F or a small extent then it is termed as amendment, and the provision is
extensively amended then it is called repeal. In that sense, after repeal
there is reenactment of the law. [968-D-E-F-G]

Bhagat Ram Sharma v. Union of India, AIR (1988) SC 740, relied
on.
G
5.1. It is a matter of legislative practice to provide while enacting
an amending law that an existing provision shall be deleted and a new
provision substituted. Such deletion has the effect of repeal of the
existing provision. Such a law may also provide for the introduction of
H a new provision. There is no real distinction between repeal and an
PARLE BISCUIT (P) LTD. v. STATE 957

amendment. [968H, 969-A] A
Sutherland's Statutory Construction 3th Edn. Vol. 1, referred to.

5.2. There is nothing in Section 13(1)(e) of the Bihar Finance Act,
1981 (as inserted by the Amendment Act, 1985) which specifically pro-
vides that the earlier notification shall not cover the said provision. The
B
provisions of the Notification No. S.O. 154 dated 28.1.1985 are not
inconsistent with the amended provision and there is nothing in the
amended provision to show that the earlier notification was intended to
be superseded. The effect of the Notification No. S.O. 154 dated 28-1-
1985 is, therefore, not taken away by Section 13(l)(e) of the Act a~ C
inserted by the Bihar Finance Amendment Act, 1985. [969-A-B]

6. There cannot be an universal application of any rigid standard
in determining the question whether the item "carton" appearing at
serial No. 12 of the Notification No. S.O. No. 154 dated 28.1.1985 would
D
include "cardboard box" and has to be decided on the factual back-
ground of each case. This has not been done. The type of cardboard box
which was used for pacing the product of the appellant, has to be seen,
Therefore, the Deputy Commissioner of Sales Tax is directed to consider
the question whether the cardboard box used by the appellant fits in
with the definition of "carton" taking into account the products which E
is packed. [970-D]

Card Board Products v. State of Bihar, (1989) 73 STC 438, referred
to.

F
Oberteuffer v. Robertson 6 S. Ct. 462, 470, 116 U.S. 499, 29, L. Ed.
706, referred to.

The New Shorter Oxford English Dictionary Vol. 1 p. 344. Words &
Phrases Permanent Edition Vol. 6 p. 347 and Oxford Advanced Learner's
Dictionary 6th Edn. p. 179, referred to. G

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2809 of
·2004.

From the Judgment and Order dated 24.9.2003 of the Patna High Court H
958 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

-A in C.W.J.C. No. 8645 of 2003.

S. Ganesh, Gaurav Agrawal, Ms. Akila Agrawal and Prashant Kumar
for the Appellant.

B.B. Singh for the Respondents.
B
The Judgment of the Court was delivered by

ARIJIT PASAYAT, J.: Appellant (hereinafter referred to as 'dealer')
calls in question legality of the judgment rendered by Division Bench of the
C Patna High Court holding that notification S.O. 154, dated 28.1.1985 issued
_under proviso to Section 13(1) of the Bihar Finance Act, 1981 (in short the
'Act') in relation to sale and purchase of packing materials, is applicable
to the appellant, and Section l3(1)(e) of the Act inserted by Bihar Finance
Amendment Act, 1985 (in short 'Amendment Act') w.e.f. 1.8.1985 did not
D render it inapplicable.
The background facts necessary for disposal of the appeal essentially
are as follows:

Appellant is a company registered under the Companies Act, 1956 (in
E short the 'Companies Act') and is a dealer registered under the Act and the
Central Sales Tax Act, 1956 (in short the 'Central Act').

It is a manufacturer of biscuits and started its manufacturing operation
in the State ofBihar w.e.f. 1.4.2002. According to it, Parle Products Limited
F was its predecessor who was given benefit of concessional rate of sale tax
of 4% on purchase of C.B. Boxes (also known as cardboard box or corru-
gated box) used for packing. The benefit of the concessional rate was given
under Section 13(1) of the Act. However, it has been denied the benefit and
has been asked to pay sales tax @ 10% on purchase of C.B. Boxes used for
packing. The appellant had also applied to the Deputy Commissioner,
G Commercial Tax, Patna city, Patna praying for inclusion of packing mate-
rials made out of paper in column 13 of the Registration Certificate. The
same was denied by the Deputy Commissioner by order dated 7.4.2003.
Earlier packing material were exempted from sales tax as its sale price was
not included in the "taxable turnover" as defined under Section 21 (1 )(c) of
H the Act .. The said provision was amended w.e.f. 1.8.1985 and the provision
PARLE BISCUIT (P) LTD. v. STATE [PASAY AT, J.] 959

with regard to non-inclusion of sale price on account of sale of packing A
materials in the taxable turnover was deleted. Section 13(1) of the Act was
amended by adding Clause (e) which provided for concessional rate of tax
with regard to sale and purchase by registered dealer of goods specified in
the registration certificate issued under Section 14 of the Act, as required
by him in or for packing of goods which he sells. As noted above, appellant B
applied for inclusion of all kinds of packing materials including packing
materials made out of paper in the registration certificate against column No.
13. The Deputy Commissioner by order dated 31.3.2002 accepted the prayer
so far as it relates to packing materials such as plastics and polybags, gunny
bags, gum tapes and adhesives, complaint slips, tin containers and pouches
but rejected the prayer for including packing materials made out of paper, c
such as cartons, corrugated boxes etc. Appellant thereafter filed application
for inclusion of said items which was rejected, as noted above, by order
dated 7.4.2003. It was indicated in the order that in view of the notification·
dated 28.1.1985 paper of all kinds is excluded from the operation of Section
13 of the Act. Appellant filed writ petition before the Patna High Court D
highlighting that its predecessor was granted concession. The notification
dated 28.1.1985 cannot have any operation to rule out operation of Section
13(l)(e) of the Act. In any event, what the appellant wanted to include was
"card board box" and what is excluded is "card board". Reference was made
to an earlier decision of the High Court in Card Board Products v. State
of Bihar, (1989) 73 STC 438, where it was held that "card board boxes" E
are different from "card board". It was also submitted that the expression
'carton' used in the notification also would not include the "card board
boxes" as was held in the said case. Both the notification and Section 13(1)
have to be read harmoniously and, therefore, the authorities were not correct
in their view. Stand of the learned counsel for the respondents was that F
Section 13 of the Act provides for concessional rate of tax. Proviso to
Section 13(1) indicates that the State Government may exclude any goods
or class or description of goods from the operation of the Section. Accord-
in~ly, notification dated 28.1.1985 amending earlier notification dated
26.12.1977 was issued. By the said notification paper and other materials
made out of paper were excluded from the operation of Section 13 of the G
Act. While other packing materials continued to enjoy the benefit of
concessional rates as provided under Section 13(l)(e) of the Act, the same
is not the case with those articles which are covered by the notification. Even
if clause (e) in sub-section (I) of Section 13 is inserted subsequently i.e. on
1.8.1985, it will not supersede or affect the earlier notification. Reference H
960 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A was made to Section 21 of the Act which deals with taxable turnover and
though sale of packing material for packing of goods used by the dealer prior
to 1.8.1985 was exempted from payment of sales tax, the position was
altered after l.8.1985.

The High Court on consideration of rival submissions came to hold that
B clause (e) of sub-section ( l) of Section 13 of the Act did not take away the
effect of the notification issued earlier. There was nothing in Section 13(1)(e)
of the Act which provided specifically that earlier notification shall not
cover clause ( e) of sub-section (l) of Section 13. Provisions of the notifi-
cation are not inconsistent with the amending provision a~d there was
c nothing to show that the earlier notification was superseded. It was, there-
fore, held that the view taken by the authorities not to include packing
materials made out of paper was correct.

In support of the appeal, Mr. S. Ganesh, learned senior counsel sub-
D mitted that the High Court has failed to notice the distinction between
"cardboard" and "cardboard boxes" which was clearly noted in Card Board
Products case (supra). The entry which was considered in that case was
identical to the one under consideration. The State having not questioned
the correctness of the judgment made an impermissible departure in case
of the appellant, particularly when several other dealers have been granted
E the benefit. 'It was submitted that the stand of the State presently taken that
"cardboard boxes" would also be included in 'carton' has also been dealt
with in Card Board Products case (supra) and the same has been negatived.

The stand of the State that the entry at serial no. 12 relates to "paper
F of all kinds" and cardboard boxes being made out of paper are also covered
by the exclusion is not correct, because serial no. 12 of the notification deals
with paper of all kinds and paper products of the enumerated category. Stand
of the State that papers of all kinds is included cannot be correct for the
simple reason that had same been the intention, there was no necessity for
enumerating various p_wetproducts. The notification No.154 dated 28.1.1985
G cannot be pressed into service to take out the effect of Section 13(l)(e) of
the Act which was inserted subsequently.

Learned counsel for the State additionally submitted that the entry in
the notification is intended to include paper of all descriptions and kinds.
H The definition is an inclusive one and that cannot mean that only paper
PARLE BISCUIT (P) LTD. v. STATE [PASAYA T, J.] 961

products of the enumerated category were covered and not other products. A
No evidence was led to show that in common parlance "cardboard" and
"cardboard boxes" are different commodities. No evidence relating to com-
mon parlance or understanding was filed before any authority. Words of the
notification have to be understood taking into account the object for which
the same was issued. The reasons for inclusion have been spelt out in the B
counter affidavit. Concessional rate of tax was never intended to be extended
to paper and its products. Since policy is to protect trees, plants and forests,
there was no intention to extend the benefits as claimed. Object is to
encourage use of substitutes of paper as packing materials. Reliance on Card
Board Products case (supra) does not further the petitioners' case because
the points were not considered in the earlier case. Even if for the sake of C
argument fr is accepted that "cardboard" and "cardboard boxes" are different
commodities, "cardboard box" is clearly covered by the entry 'carton". The
decision in Card Board Products case (supra) was concerned with the
cardboard boxes used for storage of explosives. With reference to Explosive
Rules 1940, Explosive Rules 1983 and various other provisions on the fact D
of that case it was held that cardboard boxes are not covered by the expres-
sion "cartons". In th~ instant case, the cardboard boxes are used for packing
biscuits. Therefore, the factual position is entirely different.

In order to appreciate the rival submission, a few provisions of the Act
and the notification need to be noted. Sections 13 and 21 as originally E
enacted read as follows:

'.'Section 13. Special rate of tax on certain sales or purchases:-

(I) Notwithstanding anything contained in this part but subject to F
such conditions and restrictions as may be prescribed -

(a) Sale of goods, for purpose other than re-sale or for use
in manufacture of goods for sale, to-State Government
or Central Government or to a company, corporation or
undertaking owned, financed or controlled wholly by G
such Government;

(b) Sales to or purchases by a registered dealer of goods
required by him directly for use in the manufacture or
processing of any goods for sale in Bihar or in the course H
962 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A of inter-State trade or commerce;

(c) sale of goods to a registered dealer required directly for
use in mining, or to a person, company or undertaking
holding registration certificate under the Bihar Electric-
ity Duty Act, 1948 (Bihar Act XXXVI of 1948) required
B
directly for use in the generation or distribution of elec-
tricity; and

(d) sales of machineries, tools, plants and accessories thereof
to a person firm, company, corporation or concern in-
c tending to establish a business in Bihar for the purpose
of manufacturing goods for sale and in whose case the
likely sale proceeds of such manufactured goods in
expected to exceed the quantum specified in sub-section
( 1) of section 3 or for mining or generation and distri-
D bution of electricity;
~
and in respect of which the purchaser has been gr-anted a certificate
by the prescribed authority in the prescribed manner and for pre-
scribed period shall unless the goods are taxable at a lower rate
under Section 12 be subject to sub-section (2), leviable to tax at
E such rate as may be notified by the State Government in this behalf
not exceeding 4 percentum:

Provided that the State Government may, from time to time
by notification in Official Gazette, exclude any goods_ or class or
F description of goods from the operation of this Section.

Section 21. Taxable turnover:

(1) For the purpose of this part the taxable turnover of a dealer
shall be that part of his gross turnover which remains after
G deduction therefrom -

(a) sale price on account of sales exempted under Section 7.

(b) amount of sales tax actually collected as such, if any,
along with the sale prices received or receivable in re-
H
PARt~ BISCUIT (P) LTD. v. STATE [PASAYAT, J.] 963

spect of sales of goods. A

(c) sale prices on account of sales to a registered dealer other
than a dealer liable to any tax under sub-section (4) of
Section 11 and specified in his registration certificate as
being required for resale by him inside Bihar or in course B
of inter-State trade or commerce for use in the packing
of goods which he sells insid::: Bihar or in the course of
inter-State trade or commerce.

Provided in that in the case of such sales a declaration
in the prescribed form duly filled up and signed by the C
registered dealer to whom the goods are sold, or by his
manager declared under Section 15 is furnished in the
prescribed manner by the selling dealer.

(d) sale price at the subsequent stages of sales of such goods D
as are specified by a notification issued under sub-sec-
tion (I) of Section 11 as being subject to tax at the first
point of sale in Bihar, if necessary evidence as required
by sub-section (2) of Section 11, are produced in the
prescribed manner before the prescribed authority."
E
By the 1985 amendment, Sections 13 and 21 were amended and the
relevant amendments are as follows:

"Amendment of Section 13 ofBihar Act 5, 1981: In Section 13 of
the said Act -
F
(1) In sub-section (i) to clause (b) of sub-section (1) the words
"in Bihar or in course of inter-State trade or commerce" shall
be deleted.

(2) After clause (d) to sub-section (1) the following new clause G
shall be inserted, namely:-

"(e) Sales to or purchases by a registered dealer of goods
specified in his registration certificate issued under Sec-
tion 14 as required by him in the or for packing of goods H
964 SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A which he sells."

"Amendment of Section 21 of Bihar Act 5, 1981: In the said Act,
sub-section ( 1) of Section 21 -

{I) Clause "a)" shall be re-numbered as clause "(a)(ii)" and before
B
this a new sub-clause shall be inserted as follows namely:-

"(a)(i) In case of works contract the amount of labour charges
in the manner or to the extent prescribed."

c (ii) In clause (c), after the words "trade or commerce" the
comma "(,)" shall be substituted by a semi-colon "(;)"
and the words "or for" use in packing of goods which
he sells inside Bihar or in course of inter-State trade or
commerce shall be deleted."
D
Entry 12 of the Notification No. S.O. I 54 dated 28.1.1985 reads as
follows:

"12 - Paper (of all kinds) including Paste Board, Mill Board,
Straw Board, Card Board, Blotting Paper, Cartridge Paper, Paper
E bags, packing paper, cartons, cards and Blank registers, Note books,
Exercise books, Envelops labels, Letter pads, Writing tablets and
flat files made out of paper."

Description of the goods as indicted in serial no.12 relates to "paper
F (of all kinds)" and inclusive definition in clear terms refers to certain paper
products. Those which are relevant for our purpose are "cardboard" and
"cartons". Had it been the intention to cover paper products of all kinds in
the expression 'paper' there was no necessity for including definite paper
products. At this juncture, it would be proper to note what the article "paper"
means:
G
Dictionary meaning of" Paper" as given in various dictionaries is as follows:

Chamber's Dictionary - A material made in thin sheets as an aqueous .
deposit from linen rags esparto woods pulp other form of cdlulose, used
H for writing and printing, wrapping and other purposes; sometimes extended
PARLE BISCUIT (P) LTD. v. STATE [PASAYAT, J.] 965

to similar materials not so made, as papyrus, rice-paper; to the substance A
of which some wasps built their nests, to card board and even to tin foil,
a piece of paper.

Oxford Dictionary-Substance used for writing, printing, drawing, wrap-
ping up parcels etc. made of interlaced fibers of rags, straw, wood etc. B

Webster's Dictionary Paper.- (ME Papire an Egyptian reed from the inner
bark of which a kind of writing paper was made in ancient Egypt) A thin
flexible material made in leaves or sheets from the pulp ofrags, straw, wood
or other fibrous material and used for writing or printing upon or for
wrapping and various other purposes. A single piece, sheet or leaf of such C
material, smaller wrapper or card of paper usually including its contents;
as a paper of pins; any material like paper, as papyrus.

In Encyclopaedia Britannica [Volume 13 (15th Edition)], "paper" has
been defined as basic material used for written communication and the D
dissemination of information. Paper, the general name for the substalice
commonly used for writing upon or wrapping things in.

In Unabridged Edition of the Random House Dictionary of the English
Language the word "paper" has been defined as "a substance made from
rags, straw, wood or other fibrous material, usually in thin sheets, used to E
bear writing or printing on or for wrapping things, decorating walls etc."

Oxford Advanced Learners' Dictionary (Sixth Edn. Page 917)-

For writing/wrapping: (1) (Often in compounds) the thin material that you F
write and draw on and that is also used for wrapping and packing things
a piece/sheet of paper a package wrapped in brown paper, recycled paper.

From the above definition it is clear that in popular parlance the word
"paper" is understood as meaning a substance which is used for bearing
writing or printing, or for packing or for drawing on, or for decorating, G
or covering walls. [See State of UP. v. Kores India Limited, (I 977) 39
STC 8]

McGraw-Hill Encyclopedia of Science & Technology (Volume 13,
Page 75): H
966 SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.

A Many excellent sheet materials made from synthetic polymers, derived
from petroleum or natural gas, have displaced paper for many uses. Some
are available for printing and writing as well as packaging, but usually such
materials are substantially more costly than paper which is manufactured
from renewable resources.
B
The largest use for paper 1s m sheets of varied thickness, called
paperboard, for packaging, followed by printing and writing papers and
sanitary tissues. Substantial quantities of paper are impregnated with asphalt
for use as roofing materials while other paper products are used as deco-
rating materials, packaging materials, stamps, resin-impregnated laminates,
c and structural materials.

The Encyclopedia Americana (International Edition Page 261)

Paper: A matted or felted sheet of fibers - usually vegetable but
D sometimes mineral, animal, or synthetic - formed on a screen from a water
suspension. The term paper" is specifically limited to lighter weight, thinner,
more flexible sheets formed in this manner. Sheets that are 0.012 inch (0.3
millimeter) or more in thickness, ii:icluding Bristol board, container board,
box-board, wallboard, and so forth, are i::lassified as paperboard. Paper
derives its name from papyrus, a sheet of writing material made in ancient
E times by pasting together sections of Egyptian sedge (Cyperus papyrus), a
marsh plant.

In common parlance, the meaning is not different.

F That brings us to the residual question as to whether "cardboard box"
is covered by the Entry "cardboard". We find that this question was elabo-
rately dealt with in Cardboard Products case (5upra). While considering
almost identical provision it was found as a fact that "cardboard box" is not
the same as "cardboard". It is fairly accepted by learned counsel for the State
that the decision was not challenged. We find that reasoning indicated in
G Card Board Products case (supra) to hold that "cardboard" is not synony-
mous with "cardboard box", suffers from no infirmity. An article of mer-
chandise whenever used in a taxation statute must always be understood in
common parlance and must be given its popular sense, meaning that since
with which people are conversant and while dealing with the articles would
H attribute to it. The word "cardboard box" is not the term of an art. It is a
PARLE BISCUIT(P) LTD. v. STATE [PASAYAT, J.] 967

commercial article to be understood in the sense that people dealing with A
such an article can understand it and would attribute to it in the common
parlance.

Learned counsel for the State submitted that no evidence was led about
common parlance and understanding. Reference was made to decisions in B
Parameswar Lal Bihani v. Commercial Tax Officer and Ors., (2000] 9 SCC
259 and State of Kera/av. V. Padmanabhan, [2000] 9 SCC 262 to contend
that when there is no evidence, the plain language has to be adopted. There
is no quarrel with this preposition. But considering an almost similar Entry
the Division Bench of the High Court had observed as in Card Board
Products case (supra) that "cardboard" and "cardboard box" are commer- C
cially different products. Therefore, the plea taken that cardboard and card-
board box convey the same meaning is not correct.

It was submitted by learned counsel for the State that the legislative
intent while adding new clause was never to extend concessional rate of tax D
on paper and its products. Since paper is made out of trees and plants it was
the duty of the State Government and the Central Government to protect
forest which now cover barely 13% of the land. With this legislative intent,
paper and paper products were excluded from operation of sub-section(!)
of Section 13 of the Act. This plea is not of any assistance to the State.
E
It is well-established that in a taxing statute there is no room for any
intendment and regard must be had to the clear meaning of the words. The
entire matter is governed wholly by the language of the notification. If the
tax-payer is within the plain terms of the exemption, it cannot be denied its
benefit by calling in aid any supposed intention of the exempting authority. F
If such intention can be gathered from the construction of the words of the
notification or by necessary implication therefrom, the matter is different,,
but that is not the case here. In this connection we may refer to the obser-
vations of Lord Watson in Salomon v. Salomon & Co., [1897] A.C. 22, 38:

"Intention of the legislature is a common but very slippery phrase, G
which, popularly understood may signify anything from intention
embodies in positive enactment to speculative opinion as to what
the legislature probably would have meant, although there has been
an omission to enact it. In a Court of Law or Equity, what the
Legislature intended to be done or not to be done can only be H
968 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A legitimately ascertained from that which it has chosen to enact,
either in express words or by reasonable and necessary implica-
tion."

It is an application of this principle that a statutory notification may
B not be extended so as to meet a casus omissus. As appears in the judgment
of the Privy Council in Crawford v. Spooner, 6 Meo. P.C.C. 8:

" ......... we cannot aid the legislature's defective phrasing of the Act,
we cannot add, and mend, and, by construction, make up deficien-·
cies which are left there."
c The above position was illuminatingly highlighted by a Constitution
Bench of this Court in Harsraj Gobardhandas v. H.H. Dave, [1969] 2 SCR
253.

Though it has been strenuously urged by learned counsel for the
D appellant that the notification dated 28.1.1985 cannot affect the exemption
granted in terms of clause (e) of sub-section (1) of Section 13, the plea is
clearly untenable. Section 27 of the Bihar and Orissa General Clauses Act,
1917 (in short the 'Bihar General Clauses Act') corresponding to Section
24 of the General Clauses Act, 1897 (in short the 'General Clauses Act')
provides for "Continuation of Orders" etc. issued under Enactments re-
E pealed and re-enacted. According to the provision unless a different inten-
tion appears from the amended or re-enacted provision, the notification
issued under the earlier enactment, if not inconsistent witi1 the re-enacted
provision shall continue in force and be deemed to have been issued under
the re-enacted provision, unless and until it is superseded by issuance of
F fresh 'notification. It is true the Section does not speak of an amendment.
Bµt the provision is equally applicable in case of amendment. There is no
real distinction between repeal and amendment. The latter is wider in terms
and includes deletion or abrogation in existing statute. When the statutory
provision is amended to a limited or a small extent then it is termed as
G amendment, and when the provision is extensively amended then it is called
repeal. In that sense, after repeal there is re-enactment of the law. The above
position was illuminatingly stated in Bhagat Ram Sharma v. Union of India
and Others, A~R (I 988) SC 740.

It is a matter of legislative practice to provide while enacting an
H amending law that an existing provision shall be deleted and a new provision ..
PARLE BISCUIT (P) LTD. v. STATE [PASAYAT, J.] 969

substituted. Such deletion has the effect of repeal of the existing provision. A
Such a law may also provide for the introduction of a new provision. There
is no real distinction between repeal and an amendment. This was noted in
Sutherland's Statutory Construction (3rd Edn. Volume I). There is nothing
in Section 13(1 )(e) of the Act which specifically provides that the earlier
notification shall not cover the said provision. The provisions of the noti- B
fication are not inconsistent with the amended provision and there is nothing
in the amended provision to show that the earlier notification was intended
to be superseded. In that view of the matter, effect of notification dated
28. l.l 985 is not taken away by Section 13(1 )(e) of the Act.

It is next to be considered whether item "carton" appearing at serial C
12 of the notification would include "cardboard box". It is correct th~t in
Cardboard Products case (supra) the Division Bench of the Patna High
Court dealt with this issue. A bare reading of the judgment goes to show
that the conclusion was drawn about cardboard boxes being not carton in
view of particular factual background specifically with reference to Exp lo- D
sives Rules 1940 and 1983. Therefore, in Card Board Products case (supra)
it was factually found with reference to said Rules that the cardboard bdxes
to be sold for the purpose of containing explosives were not light pasteboard
or cardboard box but strong cardboard box. Therefore, a factual determi-
nation is necessary.
E
"Carton" has been defined in various renowned dictionaries as follows:

The New Shorter Oxford English Dictionary (Volume I Page 344)

Carton A (l)(a): A light cardboard or pasteboard; a light container of waxed F
cardboard, plastic, etc. in which drinks and other foodstuffs are packaged.
Cardboard, pasteboard, papier mache. (2) The disc within the bull's-eye of
a target; a shot that hints this.

Words & Phrases Permanent Edition Volume 6 (Page 347)
G
"By 'cartons' * * * we understand those encasements which are not
usually of permanent value, and such as are ordinarily used for the conven-
ient transportation of their contents."

The carton in which gloves and hosiery are placed is a box or cover H
970 SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.

A in which the goods are contained, within the meaning of Act March 3, 1883,
$ 7, 22 Stat. 523, repealing the law imposing a duty on the usual box or
covering of imported goods. Oberteuffer v. Robertson, 6 S.Ct. 462, 470, 116
U.S. 499, 29, L.Ed. 706.

B Oxford Advanced Learner's Dictionary (Sixth Edition Page 179)

(1) A light cardboard or plastic box or pot for holding goods, especially
food or liquid; the contents of a carton; a milk carton/a carton of milk-picture
at packaging; (2) a large container in which goods are packed in smaller
containers: a carton of cigarettes.
c
There cannot be universal application of any rigid standard for deter-
mining the question and has to be decided on the factual background of each
case. This has not been done. The type of cardboard box which was used
for packing the product of the appellant has to be seen. Therefore, we think
D it appropriate to direct the Deputy Commissioner of Sales Tax to consider
the question whether the cardboard box used by the appellant fits in with
the definition of "carton" taking into account the product which is packed.
For this purpose, the appellant shall be granted opportunity to substantiate
its plea that the cardboard boxes used by it are not factually covered by the
entry "cartons".
E
Appeal is disposed of accordingly. No costs.

V.S.S. Appeal disposed of.