The Judgment of the Court was delivered by

K. Shivashankar Bhat, J.:— The petitioner in all these revision petitions was assessed under section 5(1) of the Karnataka Sales Tax Act, 1957 (“the Act”), regarding the sale of articles called “medicinal oxygen” and “nitrous oxide” used for the purpose of anaesthesia, by the Assistant Commissioner of Commercial Taxes, for the years 1973-74 to 1976-77. The Deputy Commissioner of Commercial Taxes, however, invoked his power under section 21 of the Act and held that the classification was wrong and treated the oxygen as falling within entry 121 of the Second Schedule to the Act. This order of the Deputy Commissioner was affirmed by the Karnataka Appellate Tribunal. Hence these revision petitions.

2. The short question for consideration is, whether the oxygen called “medicinal oxygen” falls within entry 121 of the Second Schedule? The said entry reads as follows:

“Industrial gas, such as oxygen, acetylene, nitrogen and the like. Thirteen per cent.”

3. According to Sri S.G Sundaraswamy, the learned counsel for the petitioner, this entry will have to be confined to the gases which are used for industrial purposes and, therefore, considered generally as industrial gases, while Sri M.R Achar, learned counsel for the respondent, contended that every gas called “oxygen”, etc., enumerated as industrial gas in entry 121, has to be treated as an industrial gas.

4. The learned counsel for the petitioner argued that the “medicinal oxygen” is commercially different from an industrial oxygen, being entirely purified for the purpose of medical use unlike an industrial oxygen. Even the container of a medicinal oxygen is differentiated by a different cylinder having a different colour from the cylinder containing industrial oxygen. The heading of entry 121 itself indicates that the gas that falls within that entry should be for industrial purposes and the enumeration of some gases following the words “such as” is only indicative of the gas content of an industrial gas.

5. The rule of construction governing sales tax legislation is now well-settled. The meaning attributable to words describing goods, transaction in which tax is attracted, depends on the meaning as understood in common parlance. Traders and users of articles of commerce do not go by scientific or technical meanings; most of them are not even aware of the process of manufacture involved and the scientific technicalities guiding the distinctions between one article and another.

6. In Deputy Commissioner of Sales Tax v. G.S Pai & Co., [1980] 45 STC 58 (SC); AIR 1980 SC 611, one question was, whether ornaments and other gold articles were covered by the description “bullion and specie”, another question was whether G.I pipes fall within the description of “water supply and sanitary fittings”. The principle of construction of these words was stated by the Supreme Court at page 61 of STC (612 of AIR):

“…………Now there is one cardinal rule of interpretation which has always to be borne in mind while interpreting entries in sales tax legislation and it is that the words used in the entries must be construed not in any technical sense nor from the scientific point of view but as understood in common parlance. We must give the words used by the Legislature their popular sense meaning ‘that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it’.” Gold articles are distinct from bullion and therefore, those articles were held as not falling within the description of “bullion or specie”. As to the second question, the Supreme Court observed:

“………The G.I pipes sold by the assessee would, therefore, fall within the description of ‘sanitary fittings’ only if it can be shown and the burden of so doing would be on the Revenue, that they were meant for use in lavatories, urinals or bath-rooms.”

7. The approach indicated by these observations of the Supreme Court, is that, the common user of the goods in question is an important factor, in considering the nomenclature of the goods described in the sales tax legislation. The entire expression “water supply and sanitary fittings” was to be construed together, without isolating any one of them from the other, to gather the legislative intention. At para 5, the Supreme Court held:

“Moreover, the words ‘water supply………fittings’ do not occur in isolation, but they are used in juxtaposition of the words ‘sanitary fittings’. The entire expression ‘water supply and sanitary fittings’ is one single expression and the words ‘water supply……fittings’ must receive colour from the immediately following words ‘sanitary fittings’. We are, therefore, of the view that the expression ‘water supply………fittings' in the context in which it occurs means such pipes or materials as are meant for use for supply of water to or in lavatories, urinals or bath-rooms of private houses or public buildings and they do not include heavy pipes which are laid-underground as mains for carrying water supply from one area or place to another. Therefore, even for the purpose of determining whether G.I pipes sold by the assessee are ‘water supply……fittings', it would have to be found as to what is the purpose for which they were meant to be used……”

8. To the same effect is the recent decision of the Supreme Court in Asian Paints India Ltd. v. Collector Of Central Excise., [1988] 70 STC 38; AIR 1988 SC 1087, wherein the conclusion of the Supreme Court was (at page 41 of STC; 1089 of AIR):

“Therefore, in view of the composition, characteristics, user and how it is known in the trade, the Tribunal came to the conclusion that decoplast was plastic emulsion paint.”

9. It is unnecessary to refer to several other citations on this aspect of the matter.

10. The Tribunal in this case referred to the contention of the petitioner, that medicinal oxygen is supplied in smaller cylinders with a different colour and this form of oxygen is of greater purity; if “industrial oxygen” is supplied to the nursing homes there is every likelihood of the same endangering the lives of the patients; the medicinal oxygen is obtained, after subjecting the industrial oxygen to further process. However, the Tribunal found fault with the petitioner for not producing any literature explaining the process involved in the manufacture of “medicinal oxygen”. The Tribunal held that the “oxygen and nitrogen oxide” are classified as industrial gases in entry 121 of the Second Schedule. Nowhere in the Act is the term “medicinal oxygen” used. Here, the Tribunal, obviously assumes that the Legislature has classified “oxygen” as such as an “industrial gas”, ignoring the phraseology of entry 121. The entry pertains to “industrial gas” followed by the words of illustration.

11. The entry governs a goods, article or product, called “industrial gas”. The subsequent words are illustrative of this head of the entry. If an article of commerce is not an “industrial gas” as understood in common parlance and those who deal in the concerned article would not treat it as an “industrial gas”, it is not for the taxing authority to expand the concept of the said article by reference to the subsequent words. All the words used are to be construed together and the context of each word should not be ignored. “Industrial gas such as oxygen………” can only mean, in the context of an oxygen, only that oxygen which is accepted in the trade as an industrial gas; if so, the oxygen referred in entry 121 can only be that oxygen, described in common parlance as “industrial oxygen”.

12. The Tribunal is not right in holding that, because, the Act nowhere refers to “medicinal oxygen”, it would be covered by the general word “oxygen” in entry 121. This is an assumption unwarranted. In a taxing statute, charge can be attracted only by the language used; there is no scope for the supposed intention of the Legislature. In case of any doubt as to the meaning of words, the benefit of construction should go to the assessee. The burden (as observed by the Supreme Court in G.S Pai's case, [1980] 45 STC 58.; AIR 1980 SC 611), is on the Revenue to bring in a particular commodity within the particular taxing provision. The Tribunal relied upon a decision of the Punjab and Haryana High Court in Porritts & Spencer (Asia) Ltd. v. State Of Haryana, [1977] 40 STC 333 wherein it was held that cotton woollen dryer felts used in paper mills for paper manufacture would not fall within the expression “textiles”. In fact this decision was reversed by the Supreme Court, reported in [1978] 42 STC 433; AIR 1979 SC 300. Similarly, the decision reported in [1972] 29 STC 148 (H.T Chemical Laboratories v. State of U.P) of the Allahabad High Court, holding that, “distilled water” is “water”, has no relevance. The question before the Allahabad High Court was whether, “distilled water” was to be treated as “pharmaceutical preparation”; “distilled water” has many uses and its user is not predominantly as a pharmaceutical preparation; the High Court held it as not falling within the meaning of “pharmaceutical preparation”.

13. The learned counsel for the Revenue contended that “medicinal oxygen” also can be used as “industrial oxygen” since “medicinal oxygen” is only a purified form of “industrial oxygen”. That may be so. But the question is, normally, would anyone use the purified oxygen, known in trade circles, as “medicinal oxygen” as an “industrial gas”? The dominant purpose for which the “medicinal oxygen” is used and the normal human behaviour in the matter of using an “industrial gas” detract anyone from using “medicinal oxygen” as an “industrial gas”. Abnormality and exceptional circumstances are entirely irrelevant to consider the question. There is always a difference, in practical life, between the actuality and a mere possibility.

14. The several decisions cited before us by Sri S.G Sundaraswamy, the learned counsel for the petitioner and Sri M.R Achar, the tearned counsel for the respondent in no way advances their respective contentions; all of them are based on the phraseology of the respective tax legislations.

15. Reference was made to “Pharmacopoeia of India” and the specification for compressed oxygen gas, issued by the Indian Standard Institute, to explain the distinctive features of “medicinal oxygen”. There can be no doubt about its distinctive quality in contradistinction to the “industrial oxygen”.

16. The object of entry 121 is clearly to attract an “industrial gas”, which cannot, on the face of it include, a gas which is not considered as an “industrial gas” by those who deal in it. It is clear that a person requiring “medicinal oxygen” will not be satisfied if he is supplied with the “industrial oxygen” and similarly an honest trader would not sell “medicinal oxygen” as an “industrial oxygen”.

17. The same reasoning should apply to the cases of nitrous oxide used for anaesthesia.

18. Consequently, these revision petitions are allowed, the orders under revision are set aside and the assessing authority is directed to redo the assessments in question, in the light of the observations made in this order. No order as to costs.

19. Petitions allowed.