Indo National Ltd v. State Of Andhra Pradesh

B.P. JEEVAN REDDY, J.

(1) THE question arising in this batch of tax revision cases and writ petitions is : under which entry in the First Schedule to the Andhra Pradesh General Sales Tax Act, do the "dry-cells" fall

(2) THE petitioners are manufacturers of dry-cells. Dry-cells are used in torchlights, transistor-radios, electronic equipment, cameras, toys and so on. Until 1985 there was no separate entry in respect of dry-cells. Only by virtue of amending Act 18 of 1985 was entry 152 added, viz. , "dry batteries or cells". All the present tax revision cases and writ petitions, however, relate to anterior period.

(3) IT would be appropriate in the first instance to refer briefly to the course of legislative development relating to these goods.

(4) UNTIL 1/09/1976, on which date the amending Act 49 of 1976 came into force, there were two entries relevant for this purposes, viz. , entries 3 and 38. They read as follows : ------------------------------------------------------------------------ Description of goods Point of levy Rate of tax ------------------------------------------------------------------------ (1) (2) (3) ------------------------------------------------------------------------ 3. Wireless reception At the point of 12 paise in instruments and apparatus, first sale in the rupee. radios and radio gramophones, the State. electrical valves, accumulators, amplifiers and loudspeakers and spare parts and accessories thereof (1003). 38. All electrical goods, At the point of 8 paise in instruments, apparatus first sale in the the rupee. and appliances including State. fans and lighting bulbs, electrical earthenware and porcelain and all other accessories excluding electric motors.----------------------------------------------------------------- By virtue of amending Act 49 of 1976 entry 38 was recast and entry 137 added. Entry 38 as recast, and entry 137 read as follows : ----------------------------------------------------------------------- Description of goods Point of levy Rate of Tax (1) (2) (3) ------------------------------------------------------------------------ 38. All kinds of electrical At the point of 8 paise in goods, instruments, first sale in the rupee. apparatus and appliances, the State. that is to say :- (i) Wires, holders, plugs, switches, electrical earthernware and porcelain ware; (ii) casings, cappings, reapers, bends, junction-boxes, meter-boxes, switch-boxes, meter-boards and switch-boards other than those made of wood; (iii) electrical fans, lighting bulbs, torches, fluorescent tubes and their fittings, like chokes and starters and other parts and accessories thereof; (iv) electrical grinders, mixers, blenders, hair driers, shavers, washing machines, heaters, cooking ranges, boilers, ovens, geysers, generators, transformers and parts and accessories thereof; (v) electronic systems, instruments, apparatus, appliances including electronic cash-registering, indexing, card-punching, franking and addressing machines, computers of analog and digital varieties, one record units, oscilos-copes and other electronic equipment and material and parts and accessories thereof (1038). 137. Electrical storage At the point of 12 paise in batteries and parts first sale in the rupee. thereof, including the State. containers, covers and plates (1137) -----------------------------------------------------------------

(5) AS aforesaid, by amending Act 18 of 1985, entry 152 was added. It may be stated that all the goods mentioned in the First Schedule to the Act are liable to single point sales tax at the point mentioned in column 2 thereof, i. e. , at the point of first sale in the State.

(6) THE position obtaining prior to the 1976 amendment was considered by a Bench of this Court, of which one of us (Jeevan Reddy, J.) was a member, Union Carbide India Ltd. , (which is petitioner in some of the matters now before us), filed two tax revision cases, i. e. , T. R. C. Nos. 18 and 19 of 1973 pertaining to the years 1968-69 and 1969-70. The question related to dry-cells manufactured by the petitioner, which are described specifically as meant for being used in transistor-radios. The question was, whether they fall under entry 3, or entry 38; if they fall under entry 3, the tax was 0. 12 paise in a rupee, while under entry 38 the tax was 0. 08 paise in a rupee. The contention of the petitioner-manufacturer was that the method in which the goods are described or advertised, is not decisive in determining the real nature of the goods, and that inasmuch as dry-cells are not meant to be exclusively used in transistor-radios and are actually used for many other purposes, they do not, and cannot fall under entry 3. It was also argued that dry-cells are neither spare parts, nor accessories to transistors or other wireless equipment mentioned in entry 3. After referring to certain decisions and to the dictionary meaning of the word "accessory", the Bench in its judgment dated 5/02/1976, opined that dry-cell batteries do fall within the meaning of the expression "accessories" to radios in entry 3 of the First Schedule to the Act. Having so held, the Bench proceeded further to consider the submission of the Standing Counsel for the department that a dry-battery cell is also an "accumulator" - an expression used in entry 3. The said contention was dealt with in the following words :". . . . . . . . . . . . . . . . . it is argued that a dry-battery cell undoubtedly falls within the scope of the expression accumulator. The meaning given to the word accumulator in the Concise Oxford Dictionary is a storage cell or a battery. Now, even according to the first contention of the learned counsel, the dry battery is a portable source of electrical energy. In other words, the electrical energy is stored in the cell and after it is used, it is thrown away. What Sri Pasha, however, contends is that the storage cell or battery referred to under the meaning of the word accumulator in the Oxford Dictionary are those batteries which can be charged and re-charged and that, such batteries as have to be thrown away after their use once, cannot be included thereunder. We do not see any basis for this distinction. With the advance of science and in the interests of economy or convenience, several articles are manufactured and invented which have to be used in different ways. For that reason alone, it cannot be held that a dry-cell battery is not an accumulator. We are, therefore, of the opinion that a dry-battery cell can fall within either of the expressions accessories and accumulator. . . . . . . . . . . . . . . . . . ".

(7) IT was next argued that inasmuch as the said dry-battery cells are not exclusively used for radios but are used in several other electrical goods, they should not fall under entry 3. The said contention was not allowed to be raised inasmuch as it was not raised before the Tribunal. It was observed that any such user for a different purpose would not, in any event, make any difference.

(8) SO far as the cells, not described as meant for transistors or radios are concerned, they were being taxed under entry 38, i. e. , at a lower rate.

(9) BE that as it may, after the 1976 amendment, which recast entry 38 and introduced entry 137, the department sought to shift its stand. Though entry 38, as recast, expressly refers to torches and their accessories and other electronic systems, instruments, apparatus, appliances and their accessories, besides other electrical gadgets and their accessories, the Revenue started taking the stand that all dry-cells, whether described as meant for being used in transistors/radios, or in flash-lights, as also those not bearing any particular description, fall under entry 137. (Of course, other batteries which are called wet batteries were also said to fall under this entry.)

(10) THE contention was that inasmuch as dry-cells are also "electrical storage batteries" within the meaning of entry 137, they must be taxed under entry 137, which is a special entry meant for them, and not under entry 38 (as accessories to torches, other electrical gadgets and appliances), which is in the nature of a general entry. The reasoning of the department, which is disclosed from the judgment of the Deputy Commissioner, dated 8/06/1978, (concerned in T. R. C. No. 35 of 1983), runs thus : an electrical storage battery is synonymous with accumulator; the Bench decision of this Court in T. R. C. Nos. 18 and 19 of 1973, dated 5/02/1976, held dry-battery cells also as "accumulators"; if so, dry-cells fall under the special entry 137, and should not be made to fall under other entries on the ground of being accessories to other goods mentioned in those other entries. Indeed, it appears that the department has not been sure of the situation and has been taxing these goods sometimes under entry 137, sometimes under entry 3 and sometimes under entry 38. While it is not necessary to mention the particulars of the several tax revision cases and writ petitions herein, that is in short the controversy. The particulars of the several tax revision cases and writ petitions are set out in the annexures to this judgment.

(11) AT this juncture, it is necessary to refer to certain relevant facts. The Indian Standards Institution, an institution established by the Central Government, has prescribed certain technical standards which the manufacturers of dry-cells must observe and conform to, if they seek to obtain the ISI marking on the cells manufactured by them. Different standard are prescribed for different dry-cells. In respect of dry-cells used in transistor-radios, a particular standard is prescribed, and for the cells used in torches/flash-lights, a different/lower standard is prescribed. Separate specification numbers are also provided for both. Similarly, there is a categorisation of dry-cells called "multipurpose dry-batteries", which means that they can be used both in transistors, and in torches/flash-lights, or in any other gadgets or appliances. These dry-cells are normally of three sizes, viz. , what are called "pen-torch cells", which is the smallest size; there is a medium size, and then there is the normal size. Besides these dry-cells, there are, of course, heavy duty dry-batteries also, with which we are not concerned herein. So far as dry-battery cells for flash-lights are concerned, the ISI number is IS : 203. This number was given in 1984, and it is called "dry-batteries for flash-lights (fourth revision)". So far as dry-batteries for transistor-radio receivers are concerned, the specification is IS : 2576. This specification was given in 1975, and it reads "dry-batteries for transistor-radio receivers (first revision)". Similarly, the specification for multipurpose dry-batteries is IS : 8144. This was given in 1976. The other relevant entries are :"is : 7218 - 1972 - dry-batteries for hearing-aids; IS : 7253 - 1974 - dry-batteries for photo-flash equipment; and IS : 9128 - 1979 - heavy duty dry-batteries" (vide : publication of Indian Standards Institutions - General Requirements and Methods of Tests for Dry Cells and Batteries (first revision) - 1984 Edition).

(12) SO far as Indo-National Ltd. , (which is the petitioner in the first tax revision case and some other matters) is concerned, it manufactures only dry-battery cells of 1. 5 volts or lesser capacity, all of which bear IS : 8144 marking. They are expressly described as "multi-purpose". In other words, they are multi-purpose dry-batteries. So far as Union Carbide India Ltd. , is concerned (which is also the petitioner in some of the matters before us), it manufactures certain cells which are described as meant for transistors. We are not sure whether the cells manufactured by Union Carbide India Ltd. , for transistor purposes carry the ISI specification or not. (The one which was produced for our observation at the time of hearing, did not carry any such ISI marking. Mr. K. Srinivasa Murthy, the learned counsel for this manufacturer, submitted that the dry-cells manufactured by Union Carbide are of international standard, which is somewhat higher than the ISI standard, i. e. , IS : 2576). Besides the above, M/s. Union Carbide also manufacture certain other dry-cells which are expressly marked as being meant for flash-lights. The two other manufacturers concerned herein, manufacture both multipurpose dry-cells carrying IS : 8144 marking, and other without any description as such, not carrying any ISI marking.

(13) NOW, it goes without saying that though the manufacturers describe the use on some of their products, it does not mean that the said cells will be used only for that purpose, and no other. In other words, a dry-cell which is described as being meant for transistors, can also be used in flash-lights, or for any other purpose whatsoever. Similarly, a dry-cell which is described as being meant for flash-lights, can also be used in transistors or for any other purpose. Of Course, so far as multipurpose dry-cells are concerned, they are expressly called "multi-purpose" and are meant for, and are used either in transistor-radios or in flashlights, or for any other purpose whatsoever. Where the dry-cells do not contain any description as to their user, it is equally clear that they can also be used for any purpose. But, one thing is clear. They are not described as, nor sold as being meant for transistor-radios. It is in the light of the above material that we have to decide under what entry should the multipurpose dry-cells be taxed, and similarly under which entry should the other dry-cells - which are either described as being meant for flash-lights or which do not mention their user - be taxed. (So far as the dry-cells carrying an express marking that they are meant for being used in transistor-radios are concerned, there is no dispute that they have to be taxed as accessories to radios under entry 3, and do not arise of consideration before us. Indeed, these dry-cells are covered by the decision of this Court in T. R. C. Nos. 18 and 19 of 1973, aforesaid).

(14) SARVASRI P. Ramachandra Reddy, K. Srinivasa Murthy and S. Dasaratharama Reddi, urged the following contentions : (i) a dry-cell is not, and cannot be called an "accumulator"; accumulator is a storage battery which is totally distinct and different from dry-cells; accumulator storage batteries are those batteries which can be charged and re-charged and which are differently made nd manufactured. The decision of this Court in T. R. C. Nos. 18 and 19 of 1973 to the extent it holds that dry-cells are "accumulators", requires reconsideration, inasmuch as the several texts, and manuals published by the Government of India, relevant on the said aspect, were not brought to the notice of the Bench; dry-cells cannot, therefore, fall under entry 137; and (ii) the dry-cells described as multi-purpose, those described as meant for flash-lights as also those not carrying any description as to their user, must fall under entry 38, inasmuch as the main use to which these dry-cells are put, is in flash-lights and other appliances and gadgets mentioned in entry 38; their user in transistor-radios is very insignificant, and for that reason alone they cannot be taxed under entry 3. Even if it is held that these dry-cells fall under both entry 38 and entry 3, they should be taxed under entry 38, i. e. , at a lower rate, following the maxim that in case of an ambiguity or doubt, a taxing statue must be construed in favour of the assessee.

(15) SRI A. Venkataramana, the learned Government Pleader for Commercial Taxes, appearing for the department, supported the reasoning of the Deputy Commissioner. He submitted that the decision of a Bench of this Court in T. R. C. Nos. 18 and 19 of 1973 correctly holds that dry-cells are accumulators. He submitted that a cell does not cease to be an accumulator for the reason that it cannot be re-charged. In any event, be brought to our notice an advertisement issued by Raleigh (Rallis) Company, a reputable concern in this country, advertising a gadget by which these dry-cells can also be re-charged; (this advertisement was issued only recently, i. e. , in the year 1986). He submitted that while introducing entry 137, the 1976 Amendment Act simultaneously amended entry 1 excluding the batteries used in motor vehicles, from the said entry. The learned Government Pleader submitted that a dry-cell is a source of electrical energy, and it is used for storing such energy. While construing these entries, he submitted, reference to scientific/technical words, or reference to the literal meaning of the expression, is not really called for, and that the words in these entries must be understood in a commercial parlance as understood by a common man.

(16) A good amount of material has been brought to our notice which induces us to take a view different from the one taken in T. R. C. Nos. 18 and 19 of 1973, on the question whether dry-cells can be called accumulators. Unfortunately, all this material was not brought to the notice of the Bench which decided those tax revision cases. Before referring to the said material, however, we must say that the first and the primary basis of the said Bench decision was that dry-cells are accessories to transistor-radios and, therefore, fall under entry 3. After holding so, the Bench proceeded to consider the next submission of the learned Government Pleader that a dry-cell is also an "accumulator", and for this additional reason also it must fall under entry 3. This argument was considered and accepted and accordingly, it was held that a dry-cell falls under entry 3, both as an accessory to radios, and, also as an "accumulator". Thus, the discussion with respect to the meaning of the word "accumulator" is by way of an additional supporting reason for the conclusion arrived at by the Bench, and not the only or main basis. Even if we differ from the meaning attached to the word "accumulator" in the said Bench decision, the effect or the binding nature of the said decision is not shaken in any manner, since dry-cells have been held to be accessories to radios, within the meaning of entry 3. Indeed, the said aspect was not sought to be re-agitated before us, and rightly in our opinion. We are told that an appeal preferred against the said Bench decision is now pending in the Supreme Court.

(17) IN "chambers Dictionary, of Science and Technology" (revised edition published by Allied Publishers Private Limited), "storage battery" is treated as synonymous with accumulator. It reads thus :"storage battery (Elect. Eng.) : See accumulator". "accumulator" is defined by the said dictionary in the following words : "accumulator (Comp.) : Name frequently given to register in arithmetic unit of digital computer, (Elec. Eng.). Voltaic cell which can be charged and discharged. On charge, when an electric current is passed through it into the positive and out of the negative terminals (according to the conventional direction of flow of current), electrical energy is converted into chemical energy. The process is reversed on discharge, the chemical energy, less losses both in potential and current, being converted into useful electrical energy. Accumulators therefore form a useful portable supply of electric power, but have the disadvantages of being heavy and of being at best 70 per cent efficient. More often known as battery, also called reversible cell, secondary cell, storage battery, (Ocean). A spring of rubber or steel attached to a trawling warp, to lessen any sudden strain due to the trawl catching". "dry Battery" is given the meaning "a battery composed of dry-cells", and the expression "dry-cell" is given the following meaning :"a primary cell in which the contents are in the form of a paste; (See Leclanche cell). "

(18) IN Encyclopaedia Britannica, Volume 2, the following statement occurs under the sub-heading "dry-cells", which are dealt with under the dealt with under the heading "primary or Voltaic Batteries"; (the main heading is : "batteries and Fuel Cells") :"dry cells : Primary batteries or cells are those that once discharged, are discarded. Early primary cells used liquid electrolytes and were not very portable. Today, most primary cells use electrolytes in jelly form, absorbed in a sheet of a porous material, and are known as dry-cells. "

(19) THE other types of dry-cells are "acidic dry-cells", "alkaline dry-cells", and "air-depolarized", which are also called "metal-air cells". It is not necessary to set out the statement with respect to each of these types. "wet cells" are described in the followings words :"wet cells : Another potentially important class of primary cell is the socalled reserve battery. It was found in the early 1970s that such high-energy compounds as magnesium, silver chloride, and cuprous chloride, could be used to obtain a high amount of energy from small or light batteries for special applications, primarily military. Since these materials are attacked by electrolytes, the battery is assembled with the electrolyte stored in a separate container. The electrolyte is inserted into the battery immediately before it is required for use, and the battery consequently enjoys a short but active life. In one form, sea-water is the electrolyte, in another, liquid ammonia. "

(20) THE same volume also describes "secondary or storage batteries" in the following words :"secondary or storage batteries : - Some cells can be re-charged by passing a current through them in the reverse direction. The chemical processes that occurred at the electrodes during discharge are then reversed, and the cell recovers its original state, except that some energy is lost during the charge-discharges cycle. "

(21) THE meaning given to the words "dry-battery", "accumulator" and "dry-cells" in "a Dictionary of Science" published by the English Language Book Society and Penguin Books, is practically the same as the meaning given to the said expressions in the "chambers Dictionary of Science and Technology", referred to above.

(22) IN the "manual of Departmental Instructions on Excisable Manufactured Products issued by the Central Board of Revenue, Government of India, the following statement occurs under the heading "electric Batteries and Parts" : 28. Varieties of batteries and assessable storage battery parts produced :- Electric batteries mainly fall under two groups : (1) Electric dry-batteries and (2) Electric storage batteries. Dry batteries are manufactured for use in flashlights and for working radio sets, while storage batteries are made for use in cars, buses, trucks, motor-cycles, diesel conveyance, for working radio sets for use as aircraft ground starter and for use in the mine workers cap lamps.

(23) THE assessable storage battery parts are (1) container, (2) cover, and (3) plates.

(24) IN appendix "a" to paragraph 28, it is stated :"a storage battery is nothing more than a device which is used repeatedly for storing energy at one time for use at another time. This energy is stored in a chemical form and is delivered from it in an electrical form. The process of putting energy into a battery is termed charging and when a battery is delivering current, it is termed discharging. The essentials of a storage battery are two unlike plates in a solution. The solution is called electrolyte, and acts upon the plates in such a way as to give one of them a tendency to deliver a current of electricity and to the other a tendency to draw in current. The one with the tendency to deliver current is called the positive and the one which has a tendency to draw in current is called the negative. The components of a storage battery are :- (1) complete cell, (2) container, (3 top cover, (4) plate (positive and negative), (5) separators, (6) terminal posts, (7) vent plug, (8) cell connector, (9) lugs, and (10) electrolyte. "

(25) REFERENCE may also be made to tariff item 31 in the Central Excise Act. It reads thus :"31. Electric batteries and parts thereof - (1) Dry (2) Storage (3) Parts of storage batteries, namely, containers, covers and plates. "

(26) THE above material makes it abundantly clear that dry-batteries or dry-cells are different and distinct from the storage batteries. May be that, taken in a literal sense, a dry-cell is also an "accumulator", inasmuch as it accumulates electrical energy; but, in commercial parlance these two words have come to acquire different and distinct meanings. Indeed, if one looks at the language of entry 137 in the First Schedule to the Andhra Pradesh General Sales Tax Act and compares the same with tariff item 31 of the Central Excise Act, or the language of the "manual of Departmental instructions of Excisable Manufactured Products", referred to above, it would be clear that the intention of the legislature while putting in the said entry, was to take in only storage batteries which are capable of being re-charged and which can be used repeatedly by charging them, and that the said entry was not intended to take in dry-cells. It may be noticed that tariff item 31 describes dry-cells or dry-batteries as different from storage batteries, and the parts of storage batteries are described as containers, covers and plates, which is precisely the language employed in entry 137. Similarly, in the Manual referred to above, the parts of storage battery are mentioned as (1) containers, (2) covers, and (3) plates; the same words as are employed in entry 137. The other texts too mention the same items as parts of storage batteries. It would also be noticed that the method or the principle of manufacturing dry-cells and storage batteries is entirely different. This conclusion of ours would be fortified further from the circumstance that in 1985 (the Bill for that purpose was introduced in the year 1981, for the first time), while introducing entry 152, ("dry-batteries or cells") entry 137 is retained unaffected and unchanged.

(27) FOR the above reasons, we are of the opinion that dry-cells manufactured by the petitioners cannot and do not fall within entry 137 of the First Schedule to the Andhra Pradesh General Sales Tax Act. These dry-cells fall under, and have to be taxed under entry 38 as accessories to torches and other electrical gadgets and appliances mentioned therein. We may repeat that in so far as the dry-cells carrying the description that they are meant for being used in transistors and/or radios, are concerned, they are assessable and have to be taxed under entry 3, being accessories to transistor-radios/radios, as held in T. R. C. Nos. 18 and 19 of 1973. Of course, with the introduction of entry 152, these dry-cells directly fall under the said entry, and need not be taxed as accessories to torches and other electrical gadgets and appliances mentioned in entry 38, or as accessories to radios under entry 3.

(28) THERE is another aspect which needs to be dealt with. The dry-cells manufactured by the petitioners, whether described as "multipurpose" or not, and even where described as meant for being used in flash-lights, can also be used in transistor-radios/radios. Indeed, the very description "multipurpose" specifically means that they can also be used in transistor-radios/radios. (Indeed, what are called "multipurpose cells" or "transistor cells" are nothing but improved versions which are made leak-proof. Since they are leak-proof they do not damage the inside of a transistor-radio/radio). But for this reason they cannot be taxed as accessories to transistor-radios/radios, for the following reasons : (a) we do not know what percentage of dry-cells manufactured in this country are used in transistor-radios/radios, and what percentage in other items mentioned in entry 38; (b) the manufacturers cannot be called upon to, nor can they say what use the dry-cells manufactured by them are going to be put to ultimately. As we have said earlier, a cell called a transistor-cell can be used in a torch; similarly, a cell which is described as a torch-light or flash-light cell, can be used in a transistor-radio/radio. So far as multipurpose cells are concerned, it is more difficult to specify the ultimate use. Thus, the situation is that these cells do fall both under entry 38 and entry 3. Under entry 3 the rate of tax is 12 paise in a rupee, while under entry 38 it is 8 paise in a rupee. In such a situation, it obvious that we have to hold that these goods have to be taxed at a lower rate, i. e. , under entry 38. We may also point out that in these cases there is no allegation, or a finding, that the petitioners have collected sales tax at the higher rate of 12 paise, whether with reference to entry 3, or entry 137.

(29) WE are of the further opinion that, even if by some reasoning it can be held that dry-cells are "accumulators" and therefore constitute "electrical storage batteries" falling under entry 137, even then the result would be the same. This would be a case where same goods would be falling simultaneously under three entries, viz. , entries 3, 38 and 137. In such a case too, the tax has to be levied at the lower rate, which would be again entry 38.

(30) WE find it not possible to agree with the learned Government Pleader that while construing the entries in the First Schedule to the Andhra Pradesh General Sales Tax Act, reference to scientific/technical dictionaries, or ordinary dictionaries is not permissible. While construing these entries, our object is not to find out their scientific/technical/literary meanings; they are being looked to merely as aids to find out the correct meaning, scope and ambit of a given entry. It is well-settled that the words in these entries have to be understood and interpreted as they are understood in commercial parlance, i. e. , as a man normally dealing with these goods, would understand them. While construing entry 137 we have not only referred to the scientific/technical/literary meaning, but we have also referred to the Manual issued by the Central Excise Department of the Government of India itself, which treats dry-batteries (dry-cells) and storage batteries as different goods, though falling under the same tariff item. The Central Government publications also make it clear that dry-batteries and storage batteries are entirely different and distinct goods. Similarly, the gadget now said to have been invented by Raleigh Company enabling even the dry-cells to be re-charged, is a very recent event of 1986, and is not relevant for the purpose of these petitions. In any event, once entry 152 is introduced, all dry-cells and dry-batteries fall under the said item, whether re-chargeable or not.

(31) FOR the above reasons, we are of the opinion that the dry-cells manufactured by the petitioners (excepting those which are described as meant for being used in transistor-radios/radios) are exigible to tax under entry 38 of the First Schedule to the Andhra Pradesh General Sales Tax Act, till the date of coming into force of entry 152. From the date of coming into force of entry 152, all dry-cells, for whatever purpose they are used, and hitherto falling under both entry 38 as well as entry 3, will be exigible to tax under entry 152 only.

(32) THE tax revision cases and the writ petitions are allowed to the extent, and in the terms, indicated above. The departmental authorities shall take appropriate consequential action and pass orders accordingly, wherever called for. There shall be no order as to costs. Advocates fee Rs. 200 in each.

(33) THE excess collections, if any, made from the petitioners shall be adjusted against the tax due from them for future period. If, in any case, the department finds that the petitioners have collected tax at a rate higher than what is permissible in law, according to this judgment, it is open to the department to take such action as is open to it in law.

(34) PETITIONS allowed.