The Judgment of the Court was delivered by

M.M Dutt, J.:— The appellant in each of these two appeals is a company and they have challenged the propriety of the judgment of P.K Banerjee J. discharging the rules nisi obtained by them on their respective applications under art. 226 of the Constitution.

2. The appellants carry on business, inter alia, as manufacturers and exporters of the refractories and refractory materials including calcined kyanite. Under sub-s. (1) of s. 280ZC of the I.T Act, 1961, a person, who exports any goods or merchandise out of India after 28th February, 1965, and receives the sale proceeds thereof in India in accordance with the Foreign Exchange Regulation Act, 1947, and the rules made thereunder, is entitled to a tax credit certificate for an amount calculated at a rate not exceeding 15% on the amount of such proceeds. Under sub-s. (2) of 280ZC, the goods or merchandise in respect of which a tax credit certificate shall be granted under sub-s. (1) and the rate at which the amount of such certificate shall be calculated shall be such as may be specified in the scheme.

3. In exercise of the powers conferred by s. 280ZE read with s. 280ZC of the I.T Act, 1961, and of all other, powers enabling it in that behalf, the Central Government notified a scheme, namely, the Tax Credit Certificate (Exports) Scheme, 1965, by a Notification dated August 17, 1965, published in the Gazette of India, Extraordinary, Part II, page 353, dated August 18, 1965. According to Item No. 19 of the table appended to paragraph 3 of the Scheme, “All mineral ores other than iron ore and manganese ore” are entitled to tax credit at the rate of 15% of the sale proceeds received in India when exported to places outside India other than those in Nepal, Bhutan or Sikkim.

4. Both the appellants made several applications in Form “E” for tax credit certificates against various consignments of kyanite. The Assistant Director of Tax Credit (Exp???rts), Calcutta, rejected all the applications of the appellant by his orders, all dated June 10, 18, 1966, holding that kyanite was not a mineral ore within the meaning of item 19 of the table under para. 3 of the Scheme. The appellants being aggrieved by the said orders preferred appeals against the same to the Director of Tax Credit (Exports) under para. 9 of the Scheme. After hearing the representations of the appellants and after considering the written submissions made on their behalf, the Director of Tax Credit (Exports) dismissed all the appeals by his order dated March 31, 1967, holding, inter alia, after reviewing various authorities on the subject, that the definition of “ore” mostly agreed upon and generally accepted was that it was an aggregate of minerals from which a metal could be extracted profitably. It was held by him that kyanite did not fall within the scope of the term “mineral ore” as specified in the Scheme. Thereafter, the appellants moved this court under art. 226 of the Constitution and obtained rules nisi challenging the correctness of the impugned orders. As stated already, the learned judge discharged the rules. The learned judge also took the same view that kyanite was not a mineral ore within the meaning of item 19 of the Scheme. Hence, these appeals.

5. The only question that is involved in these appeals is whether or not kyanite is a mineral ore. The principal arguments on behalf of the appellants in both the appeals have been made by Dr. Debi Pal, learned advocate appearing on behalf of the appellants in F.M.A No. 831 of 1977. It is contended by him that in order to constitute a mineral ore, it is not necessary that there must be a metallurgical extraction of the metal on a profitable basis as contended by the revenue. The modern and the present day thinking, in line with common usage, is that if the mineral can be mi???ed or worked out at a profit, it is a mineral ore. Judged by the above test, he submits; kyanite is a mineral ore particularly in view of the fact that it is a mineral that can be mined or worked out at a profit. On the other hand, it is contended by Mr. B.L Pal, learned advocate appearing on behalf of the revenue in both these appeals, that although kyanite is a mineral and contains 60% or more of alumina, a metal, yet it is not an ore, for the metal cannot be extracted from the mineral com???ercially at a profit. In order to determine the real meaning of the word “ore” from the economic and commercial point of view the following authorities may be referred to:

I. The Encyclopaedia of Chemistry—Clark & Hawley (Reinhold Publishing Corp., New York, 1957, pp. 666-667).

“Ores:

With some exceptions, metals are obtained from bodies of material occurring in the earth called ores. An ore is always a source of metal; the term is not applied to non-metallic substances such as clay, limestone, coal, etc.

Ore is defined as a mixture of minerals which may be mined and treated as a source of metal with commercial profit. A mineral is a chemical compound occurring in nature and having a definite chemical composition and properties. An ore is distinguished from a mineral in that it is an aggregate of minerals and does not have a definite chemical composition; further, in Older to be an ore the material must have a commercial value as a source of metal. A mineral may or may not be of commercial value.

In a mineral the metal is in chemical combination with another element or elements. Thus, the metal contained in an ore is usually not only chemically combined, but the compound is also physically mixed with other minerals. In the case of the so-called ‘native’ ores, the metal is in the metallic state, not in chemical combination, but is mixed with other, minerals which usually are of no value as they occur in the mixture. Most gold ores are native ores, and silver, mercury, platinum, and lately other metals are also found in the native state.

The valuable mineral contained in an ore is an ‘ore mineral’. The principal component of the ore mineral, one of which the ore constitutes a source and which accounts for its commercial value, designates the kind of ore as a gold ore, an iron ore, a copper ore, etc. The other minerals contained in the mixture, which ordinarily are waste material, constitute the gangue of the ore. Extraction of the metal from the ore is a process of separation from the gangue as well as a chemical breaking down of???he ore mineral.

The fact that an ore must be a commercially profitable source of metal introduces an economic factor. The ore must contain a large enough percentage of the metal, and the metal must be contained in such form physically and chemically as to permit its extraction at a profit.”

II. The Condensed Chemical Dictionary— Reinhold.

“Ore—An aggregation of valuable minerals and gangue from which one or more metals can be extracted at a profit.”

III. Dictionary of Technical Terms— F.S Crisdin, English Edition, 1952, p. 281).

“Ore (mineral) metal bearing rock in such form or amount as to make it practical for use as a raw material from which to extract a metal”.

IV. Hackh's Chemical Dictionary by Julius Grant—(Third Edition, 1946, Page 597).

“Ore—A natural mineral or mineral mixture from which useful substances are obtained; usually containing metallic compound ore. They are found mixed with the earthy matter (matrik or gangue) in which they have been deposited. The principal ores are oxid???s, carbonates, silicates, sulfides, arsenides, antimonides and hallides”.

V. The Encyclopaedia Americans— (1960 Edn., p. 829).

“Ore—Ore, a term used in a mining industry for a mineral mass having valuable metallic content which can be worked profitably.”

VI. Metals and Alloys Dictionary by M. Merlub Sohel— (1944 Edn., p. 153).

“Ore—Naturally occurring mineral from which metal can be profitably extracted.”

VII. Concise Chemical and Technical Dictionary— Edited by N. Bannet (1947 Edn., p. 685).

“Ore—Naturally occurring mineral from which a metal can be profitably extracted.”

VIII. Economic Mineral Deposits, IInd Edition, 1950, by Allen M. Bateman, Pages 19 to 20:

“Ore minerals: An ore mineral is one that may be used to obtain one or more metals. Most of them are metallic minerals, such as galena, which is mined for its load. A few are non-metallic minerals, such as malachite, bauxite, or cerussite, ore minerals of copper, aluminium and lead. The ore minerals occur as native metal, of which gold and platinum are examples, or as combinations of the metals with sulphur, arsenic, oxygen, silicon, or other elements. Combinations are the most common.”

Pages 22-23:

“Ore: The term ‘Ore’ is often loosely used to designate anything that is mined. Technically, it is an aggregation of ore minerals and gangue from which one or more metals may be extracted at a profit. To be ore, the material must, therefore, be valuable, and this involves economic considerations as well as geologic.”

IX. Mining Geology by Hugh Exten. Mc. Kinstry, 1960 Edition (1st Indian Edition, under Chapter Glossary). (J.F Kemp. Trans. Can. Mining Inst. 1909, page 367), page 649.

“Ore: A metalliferous mineral, or an aggregate of metalliferous minerals, more or less mixed with gangue, which from the standpoint of the miner can be won at a profit or from the standpoint of the metallurgist be treated at a profit. The test of yielding a metal or metals at a profit seems the only feasible one to employ.”

X. Mineral Deposits by W. Lindgren, IVth Edition, 1933:

Page No. 13:

“Ore and gangue: An ‘Ore mineral’ is a mineral which may be used for the extraction of one or more metals. An ‘Ore’, as the term is used here, is that part of a geologic body from w???ch the metal or metals that it contains may be extracted profitably.”

XI. The Principles of Economic Geology by W.B Emmons, IInd Edition—1960.

Page No. 1:

‘An ore is a mineral or association of minerals that may, under favourable conditions, be worked commercially for the extraction of one or more metals.

“An ore mineral is one that contains a valuable metal”.

XII. Mining Engineer's Hand Book by Robert Peels, IIIrd Edition, Vol. 1—1956.

Page 218:

“Scientifically, the word ‘Ore’ comprehends all metal bearing minerals which are commercial sources of the metals, percentage not being considered. Technically, an ore is a metal bearing mineral, or aggregate of such mineral, mixed with barren matter, called ‘gangue’, and capable of being mined at a profit. By contrast, where the element of profit is uncertain or impossible, the term ‘mineral deposit’ may be used instead of ‘ore deposit’.”

XIII. Ronald Parks —Examination and Valuation of Mineral Property, 1957.

‘“As defined by the U.S Geological Survey ‘Ore’ is a natural aggregation of one or more minerals from which useful metals may be profitably extracted. It thus includes not only mineral in its natural place in the earth's crust but also mine dumps, tailing piles, etc., which can be reworked at a profit. A broader definition, in line with common usage, would cover extraction of non-metallic mineral products as well as metals.”

XIV. Materials Hand Book by George S. Brady, VIth Edition, 1947, page 475:

“Ore: A metal bearing mineral from which a metal or metallic compound can be extracted commercially. Earths and rocks containing metals that cannot be extracted at a profit are not rated as ores. Ores are named according to their leading useful metals.”

XV. The Geology of Ore Deposits by H.M Thomas and D.A.M.C Alister, 1909 Edition.

Page 1:

“An ore deposit may be defined as a body of rock which contains metallic compounds or native metals in sufficient quantities and in such a form as to be of economic importance, that is to say, from which one or more metals can be profitably extracted.”

XVI. Chambers' Encyclopaedia, New Edition, 1961, Vol. X.

Page 234:

“Ore deposit: An ore deposit is a geologic body that may be worked commercially for one or more metals. Thus, deposits containing workable amounts of lead, zinc, tin or copper minerals are ore deposits, whereas those containing commercial amounts of flourspar, gypsum or native sulphur are not strictly ore deposits for they do not yield a metal or metals.”

XVII. Encyclopaedia of Science & Technology, Vol. IX, 1960 Edition, Mac-Graw Hill.

Page 376:

“Ore and mineral deposits:

Ore deposits are naturally occurring geologic bodies that may be worked for one or more metals. The metals may be present as native elements, or, more commonly, as oxides, sulfides, sulfates, silicates or other compounds.”

6. It thus appears from the view expressed by the different authorities referred to above that the consensus of opinion is that an ore is a mineral from which metal can be extracted at a profit. Dr. Pal, however, submits that while it is true that when metals can be extracted at a profit from the mineral such mineral will fall under the category of “ore”, it is not the only test for determining whether a mineral is an ore or not. According to him, if the mineral can be mined or extracted from the bowels of the earth at a profit, the mineral will also be an ore. In support of his contention, he has placed much reliance on the observation of R.D Parks (see item No. XIII above), namely, a broader definition, in line with common usage, would cover extraction of non-metallic mineral products as well as metals. He has also placed reliance on the following observations contained in Introduction to India's Economic Minerals, Indian School of Mines, Dhanbad, 1964 Edition, pages 1 and 2, by N.L Sharma and K.S.V Ram: “An ore is a term applied usually to that part of a metalliferous mineral deposit that could be profitably utilised as a source of one or more metals, but now this term is widely used for the useful part of many non-metallic mineral deposits also, like barite, fluorite, sulphur, etc.” Besides the above, he has also referred to and relied on the definition of “ore” as given by Mc Kinstry (see item No. IX above). So far as Mc Kinstry's definition is concerned, it is apparent that it does not support the contention of the appellants, for, it has been observed that the test of utilising a metal or metals at a profit seems the only feasible one to employ. The only definition that may be said to support the contention of the appellants is that given by N.L Sharma and K.S.V Ram quoted above.

7. We have carefully considered the views of the different authorities as to the interpretation of the term “ore” and, in our opinion, the conception that is widely accepted is that “ore” is a mineral from which metal can be extracted profitably. It may be that some authorities have expressed the view that even when a mineral can be mined or extracted from earth at a profit it would be called an ore. The revenue has relied upon the generally accepted definition of the term “ore” and it is difficult for us to hold that they have committed any illegality or an error of law. It is, however, contended on behalf of the appellants that when two views are possible the view that is favourable to the assessee should be accepted. Indeed, it has been pointed out by the Supreme Court in Alladi Venkateswarlu v. Govt. of Andhra Pradesh, (1978) 2 SCC 552 : AIR 1978 SC 945, that if two interpretations of a provision are possible, the interpretation which favours the assessee should be preferred. In the instant case, however, the interpretation of the term “ore” that is in favour of the appellants, is very weak and it is against the weight of authorities. In technical matters sometimes opinions differ. In such cases, the opinion of the majority should be taken into consideration for the purpose of taxing statutes. Moreover, it has been observed by the Supreme Court in CST v. Jaswant Singh, AIR 1967 SC 1454 : [1967] 19 STC 469, that it is now well settled that while interpreting items in statutes like the Sales Tax Acts, resort should be had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, commercial sense. In view of the said decision of the Supreme Court, the popular meaning of the term “ore” should be adopted and that is that, unless metal can be extracted from earth, it will not be an ore.

8. The view that has been taken by the revenue cannot be said to be perverse. Indeed, it is not the case of the appellants that it is a perverse view. In Collector Of Customs, Madras v. K. Ganga Setty, AIR 1963 SC 1319, which is a decision of five judges, the Supreme Court has expressed the view that if there were two constructions which an entry could reasonably bear, and one of t???em which was in favour of the revenue was adopted, the court has no jurisdiction to interfere merely because the other interpretation favourable to the subject appeals to the court as the better one to adopt. Again, the same view has been expressed by the Supreme Court in a later decision in V.V Iyer v. Jasjit Singh, (1973) 1 SCC 148 : AIR 1973 SC 194.

9. It has been stated already that the revenue has adopted the popular definition of the term “ore”. We have also come to the conclusion that the said definition should be adopted. In the circumstances, in our opinion, the learned judge was perfectly justified in not accepting the interpretation that was sought to be given on behalf of the appellants for the purpose of getting the tax benefits under the scheme. Accordingly, both these appeals are dismissed, but in view of the facts and circumstances of the cases, there will be no order for costs.

Sharma, J.:— I agree.