Dr. B.P Saraf, J.:— By this reference under section 61(1) of the Bombay Sales Tax Act, 1959, at the instance of assessee, the Maharashtra Sales Tax Tribunal has referred the following questions of law to this Court for opinion:
“1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that ‘electronic cash register’ sold by the applicant was covered by entry No. 90 of Schedule C, Part II and not by entry No. 97(b) of Schedule C, Part II appended to the Bombay Sales Tax Act, 1959?
2. Whether, in the facts and in the circumstances of the case, the Tribunal was right in holding that the various functions carried on by the machine were only subsidiary functions and that, therefore, the cash register was essentially only a cash register and could not be considered as an electronic system, appliance or instrument?”
2. The material facts giving rise to this reference are as follows : The assessee—M/s. Bradma of India Limited is engaged in the business, inter alia, of manufacture and sale of “Bradma Electronic Cash Register”. On 2nd January, 1990, the assessee filed an application before the Commissioner of Sales Tax under section 52(1)(e) of the Bombay Sales Tax Act, 1959 (“Act”) for getting determination of the rate of tax on the sale of Bradma electronic cash register manufactured and sold by it under invoice No. 100 dated December 30, 1988. The case of the assessee before the Commissioner, of Sales Tax was that even though it was called cash register, it was covered by entry No. 97(b) of Schedule C, Part II to the Act, which relates to electronic systems, instruments, apparatus and appliances and not by entry No. 90 which deals with machines, such as tabulating, calculating, cash registering machines. According to the assessee, the instrument termed as “electronic cash register” which works on electronic principle was not a machine but an electronic system. The Commissioner did not accept the above contention of the assessee and held that electronic cash register sold by it was nothing but a cash registering machine and hence covered by entry No. 90 of Schedule C, Part II to the Act. Against the determination of the Commissioner, the assessee appealed to the Maharashtra Sales Tax Tribunal (“Tribunal”). It was contended before the Tribunal on behalf of the assessee that the electronic cash register sold by it was an electronic system and not a cash registering machine. The nomenclature of the goods as “electronic cash register”, according to the assessee, was not decisive factor for determining whether it was a cash registering machine falling under entry No. 90 or electronic system covered by entry No. 97(b). It was contended that the product in question worked on electronic principle and hence it would be covered by entry No. 97(b). The assessee also referred to the various functions of the electronic cash register which could be performed only by an electronic cash register and not by cash registering machine. On the other hand, the contention of the revenue before the Tribunal was that simply because the machine in question worked on electronic principle, it could not be regarded as an electronic system falling under entry No. 97(b). The Tribunal held that even if the machine was operated on electronic system, it would fall under entry No. 90 because it functioned as a cash registering machine. Hence, this reference at the instance of the assessee. To appreciate the controversy, it may be expedient to set out entries 90 and 97 of Schedule C, Part II to the Bombay Sales Tax Act. These entries at the material time, read as follows:
Entry 90:
“90. Tabulating, calculating, cash registering, indexing, card punching, franking, addressing, cheque writing, statistical, paper shredding and data processing (other than computers) machines and components, parts and accessories of such machines.”
Entry 97:
“97(a) Computers and components, parts and accessories thereof and tapes, spools, and discs used therewith.
(b) Electronic systems, instruments, apparatus and appliances other than those specified elsewhere and components, parts and accessories of any of them.”
3. The rate of tax on sale of goods falling under entry No. 90 was 15 per cent whereas, the rate of tax applicable on goods falling under entry No. 97 was 20 per cent. The controversy in this case has arisen because though the rate of tax on sale of goods falling under entry No. 97(b) was higher than the rate of tax applicable on sale of goods falling under entry 90, by Government notification under section 42 of the Act, the rate of tax on sale of goods falling under entry No. 97(b) was reduced during the material period, i.e, from May 19, 1988 to March 31, 1992, from 20 per cent to 4 per cent. As a result, if the electronic cash register sold by the assessee is held to be cash registering machine, the sales thereof would be assessable at the rate of 15 per cent whereas, if it is held to be electronic system, the rate of tax would be 4 per cent. The question that falls for determination is under which of the two entries the electronic cash register manufactured and sold by the assessee would fall?
4. Mr. Gaitonde, learned counsel for the applicant, submits that the electronic cash register sold by the assessee would fall under entry 97(b) of Schedule C, Part II because it works on electronic principle. According to him, in view of the special entry for electronic systems, instruments, apparatus, appliances, etc., even if an instrument, apparatus, etc., can be termed as a “machine”, it would not fall under the general entry dealing with machines. According to the learned counsel, any machine working on electronic principle has to be regarded as an electronic system, or instrument, or appliance. He also drew our attention to the various functions of the electronic cash register sold by the assessee to satisfy us that it was not a cash registering machine as understood in trade and common parlance. Reliance was placed in support of this contention on the decision of the Andhra Pradesh High Court in State of A.P v. Apex Agencies, [1997] 104 STC 44, wherein electronic calculators were held to be taxable under entry 38(v) of the First Schedule to the Andhra Pradesh General Sales Tax Act, 1957 which dealt with electronic systems, instruments, apparatus, appliances, etc., and not under entry 12 thereof which dealt, inter alia, with calculating machines.
5. Mr. R.V Desai, learned counsel for the respondent, on the other hand, submitted that the electronic cash register sold by the assessee being a machine, would fall under entry 90 and not under entry 97(b). It was contended that the electronic cash register manufactured and sold by the assessee was marketed by it as a cash register. According to Mr. Desai the basic function of the electronic cash register being a cash register, it should be regarded as a cash registering machine falling under entry 90.
6. We have carefully considered the rival submissions. Law is well-settled that if there are two entries—one general and the other special, the special entry should be applied for the purpose of levying tax. The general entry should give way to the special entry. In the instant case, entry 90 is a general entry which prescribes the rate of tax applicable to the sale of certain machines, viz., cash registering machines, whereas, entry 97(b) is a special entry, which prescribes the rate of tax on the sale of electronic systems, instruments, apparatus and appliances. The word “machinery” is a word of wide import. When used in ordinary language, prima facie, it means some mechanical contrivances which, by themselves or in combination with one or more other mechanical contrivances, by the combined movement and interdependent operation of their respective parts generate power, or evoke, modify or apply or direct natural forces with the object in each case of effecting so definite and specific a result, [see Corporation of Calcutta v. Chairman, Cossipore and Chitpore Municipality, (1922) ILR 49 Cal 190 (PC)]. In the absence of any special entry, it may take within its sweep electronic systems or instruments also. In the present case, there is a special entry to deal with electronic systems, instruments, appliances, etc. There is no dispute in this case about the fact that the “electronic cash register” sold by the assessee is operated by flow of electrons. “Electron” has been defined as a stable elementary particle with an indivisible charge of negative electricity, found in all atoms and acting as a carrier of electricity in solids. The word “electronic” is applied to system or appliance which is operated by a flow of electron. It has been defined by McGraw-Hill in Dictionary of Scientific and Technical Terms (Second edition), as pertaining to electron devices or to circuits or systems utilizing electron devices, including electron tubes, magnetic amplifiers, transistors, and other devices that do the work of electron tubes. “Electronic cash register” has been defined in the same dictionary as follows:
“A system for automatically checking out goods from retail food stores, consisting of a device that scans packages and reads symbols imprinted on the label, and a computer that converts the symbol information to tell a cash register the price of the item; the computer can also keep the records of sales and inventories. Abbreviated ECR”.
7. It is clear from the above that electronic cash register is different from a cash registering machine. It would, therefore, fall under entry 97(b) of Part II, Schedule C and not under entry 90. We are supported in our above conclusion by the decision of the Andhra Pradesh High Court in State of A.P v. Apex Agencies, [1997] 104 STC 44. In that case, the controversy was whether electronic calculators were assessable to tax under entry 12 which dealt with typewriters, tabulating machines, calculating machines, teleprinters and teleprinting machines and duplicating machines; or under entry 38(v) which dealt with electronic systems, instruments, apparatus, appliances including electronic cash-registering, indexing, card-punching, franking and addressing machines, etc. The High Court held that the electronic calculator would fall under the latter entry. It was observed:
“A perusal of entry No. 12 makes it explicit that the goods covered under that entry are typewriters, tabulating machines, calculating machines, teleprinters and teleprinting machines and duplicating machines, etc. The calculating machine, as commonly understood, in common parlance, is different from electronic calculator. In the market if somebody asks for calculating machine, nobody will give electronic calculator and vice versa. Now a reading of entry No. 38(v) would show that it specifically deals with electronic systems, instruments, apparatus, appliances including electronic cash registering, etc. So electronic instrument which takes in its fold electronic calculator is specifically dealt with in clause (v) of entry No. 38. Indeed clause (v) specifically deals with electronic systems and electronic goods. Therefore, in our view, the Tribunal was right in coming to the conclusion that electronic calculators are taxable under entry No. 38(v).”
8. In view of the above, we are of the clear opinion that the electronic cash register sold by the assessee would be covered by entry 97(b) of Schedule C, Part II to the Bombay Sales Tax Act, 1959 and not under entry 90 thereof.
9. Both the questions referred to us are, therefore, answered in the negative and in favour of the assessee. Reference is disposed of accordingly with no order as to costs.
10. References answered in the negative.