[The judgment of the Court was delivered by Muhammad Amin Butt, J.]-On an application made by the Commissioner of Sales Tax, Rawalpindi, under Section 17(1) of the Sales Tax Act, 1951, the Income Tax Appellate Tribunal has forwarded the following question of law for decision by this Court:- "Whether on the facts and in the circumstances of the case the Tribunal was justified in holding that taramira oil is 'musted oil and hence liable to sales tax at the reduced rate?"
2. The respondent assessee was engaged in the business of manufacture of oil and oil-cakes from taramira seeds during the year 1958-59. The assessment was originally completed on 12-3-1963 whereby the sales of taramira oil and oil-cakes were assessed at Rs. 72,000, and Rs. 48,000, respectively on the basis of the figures adopted in the income-tax assessment. The sale of oil was charged to sales tax at the rate of 6% presumably under Item No. 15 of the Notification No. 11 dated 27-6-1951 issued by the Central Government under Section 7 of the Sales Tax Act, 1951, which prescribed a reduced tax of 6% in respect of the sale of mustard oil manufactured in Pakistan.
3. Later proceedings under Section 28 of the Sales Tax Act were initiated by the Sales Tax Officer on the ground that Taramira oil was taxable at the standard rate and was not liable to tax at the reduced rate of 6% under Item No. 15 of Notification No. 11, dated 27-6-1951. In the re-assessment the total sales of oil earlier determined at Rs. 72,000, were subjected to the standard rate of 10% instead of the reduced rate of 6% as aforesaid.
4. On appeal before the Appellate Assistant Commissioner the assessee placed reliance on the views expressed by the Provincial Public Analyst in his letter No. M-14-4279, dated 7-7-1964 to contend that Taramira oil was mustard oil and, as such, liable to tax at the reduced rate of 6%. The learned Appellate Assistant Commissioner refused to accept the plea and rejected the appeal in this behalf. On further appeal the Income-tax Appellate Tribunal referred to certain observations made by Shiv Ram Kashyap in his work Lahore District Flora where all the seeds falling under the mustard group are shown to belong to Brassica Juncea. In this genus are included Brassica Juncea (arhon), Brassica Campestrian (sarson) and Brassica napus (toria). The learned author had further expressed the view that "besides the mustard described above, a number of common vegetables also belong to genus Brassica; cauliflower (phool gobhi), Cabbage (band gobhi) or (pat-gobhi) knol Khol (ganth gobhi) are different varieties of Brassica." The Tribunal further observed that the botanical name of taramira on the other hand is given as Eruca sativa and it is shown to be a plant of Eruca genus under a head different from Brassica genus. It also referred to the book entitled "Vegetable Fats and Oil" by George S. Jamieson, Ph. D. (pp. 225 to 227) in which mustard oils are listed separately from jamba oil which is the common name of taramira, and observed that the latter was closely related to rape-seed oil and had affinity with mustard oil. In this pulica- tion mustard again in shown in Brassica genus and the jamba (taramira) in Eruca genus. The Tribunal expressed the view that the Brassica genus to which mustard belongs and Eruca genus to which taramira belongs are both shown to be falling in the same parent family "Eruciferae".
The Tribunal proceeded to examine the question whether taramira falls under the term "mustard" used in Item No. 15 of the aforesaid notification. In construing the expression "mustard" the Tribunal referred to two certificates. The first issued by the Botanist, Ayub Agricultural Research Institute, Lyallpur, stated that mustard is not a scientific term but a common term and is used to indicate not only different seeds belonging to Eruca family but also includes taramira which belongs to Eruce family (Eruca sativa). The other certificate issued by the Government Public Analyst, Lahore, stated mustard family included a large number of herbs including taramira and that the term "mustard" is loosely applied generally to oil-seeds of sarson, taramira, rai, etc. The Tribunal came to the conclusion that although it is clear that scientifically and technically taramira belongs to a different sub-group of the main family of plants, it does belong to the family which in ordinary usage is described as mustard.
5. We have gone through the two certificates carefully and have come to the conclusion that the stand taken by the Government Public Analyst is diametrically opposed to the statement of the Botanist. While the Botanist contended that mustard is neither a scientific nor a technical term and is used in common parlance to cover the Brassica Tournefortia, Brassica Alba and Brassica Juncea (rai of different colours and rays) and added that cabbages, turnips and cauliflowers etc. Are also said to be the mustards and further certified that Eruca sativa (Taramira) is also included in the group comprising of mustards, the Public Analyst described it as a different family which includes a large number of herbs, vegetables and seeds including Cabbage, Cauliflower Turnip, Radish.
Sarson, Toria, Taramira, Rai and others. The Public Analyst also referred to the specifications for mustard oil framed by the Government of Pakistan under PSS 25: 1958, which reads as follows:- "The material shall be obtained by a process of expression or extraction of clean and sound seeds of Brassica Juncea (Lahi rai or lahs) of a mixture of these seeds. It shall be clear and free from rancidity, adulterates, sediments, suspended and other foreign matter, separated water and added colouring and favouring substances."
6. Interesting enough the definition of mustard oil in the Pakistan standard specification does not support the assertion that the seeds of Eruca sativa (Taramira) would also be categorised as mustard oil. The Botanist and the Public Analyst clearly refer to the broader botanical definition of the word "mustard" when they assert that cabbages, turnips, radish, and cauliflowers apart from Sarson, Toria, Taramira, and Rai etc. Also fall within the definition of mustard. It may be stated that in fairness to the Public Analyst that he has stated that these agricultural products fall within "mustard family". There is little doubt that the Botanist and the Public Analyst were referring to the botanical definition of the word "mustard" when they stated that the expression would include cabbages, radish, cauliflowers, turnips, etc. In Craies on Statute Law Seventh Edition pages 162 and 163 the learned author refers to the judgment of Lord Tenterden in Attorney-General v. Winstanlay [(1831) 2 D &CI. 302] in which at page 310 the learned Judge observed that "the words of an Act of parliament which are not applied to any particular science or art "are to be construed" as they are understood in common language". The learned author also referred to Grenfell'/. I.R. C. [(1879) 1 Ex.
D. 240] at p. 248 in which Lord Pollock stated that "if a statute contains language which is capable of being construed in popular sense, such statute is not to be construed according to the strict of technical meanings of the language contained in it but is to be construed in its popular sense, meaning of course, by the words 'popular sense' that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it. ln Rama-Vator Budhaipresad v. Assistant Sales Tax Officer [AIR 1961 SC 1325] the Supreme Court of India had the occasion to interpret the 'word "vegetable" which the petitioner claimed included betel leaves, the Court made the following observations:- "Reliance was placed on the dictionary meaning of the word "vete- table" as given in the shorter Oxford dictionary where the word is defined as of or derived or obtained from plant or their parts.
But this word must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance. It has not been defined in the Act and being word of every day use it must be construed in its popular sense meaning that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it. It is to be construed in common language..... denoting class of vegetables which are grown in a kitchen garden or use for the table."
The Court quoted with approval the observations of the Calcutta High Court in Dharamda Paul v.
Commissioner of Commercial Taxes [AIR 1958 Cal. 302] where for the like reasons held that the term "vegetable" meant "Sabzi, Tarkari and Sak." In the King v. Planters Nut & Chocolate Co. Ltd. [51 D T C 54] the Crown sought to recover tax in respect of sales of saited peanuts and cashew nuts in the period May 19, 1948, to September 30, 1949. The defendant claimed that it was not liable to the tax on the ground that peanuts and cashew nuts are vegetables, or alternatively, fruit, within the meaning of Schedule III of the Canadian Excise Tax Act, 1927, and are, therefore, exempt from tax. it also claimed that peanuts are used as food in the form of soaps, and are, therefore, "foodstuffs" under Schedule III. The Court after considering the definition of the words "fruit and vegetables" given by various dictionaries and encyclopaedias came to the conclusion that from the botanical point of view, the evidence indicates that both the peanut and the cashew nut are vegetables in the wider meaning of that word, that each is a "fruit", the former belonging to the same class as peas or beans and the latter to the dry drupe class like the coconut, and that neither is a "nut".
However, the words "fruit" and "vegetable" are not defined in the Act; they are ordinary words in every-day use and are, therefore, to be construed according to their popular sense and not to their scientific or technical sense. Even in dictionaries, the peanut is included in the definition of "nut". The Customs Act also lists peanuts in the "nut" category, which indicates that in the minds of legislators, nuts were not included in the categories of fruits or vegetables, and also that peanuts fell within the category of nuts. Although peanuts are used as food, and while the heading of Schedule III is "Foodstuff", it is apparent that not all foodstuffs are included and that it would seem that the exemption is confined to ordinary staple table foods.
7. Before us the learned counsel for the respondent attempted to argue that according to the dictionary meaning of the word "mustard" Toria, Sarson Raya fall within this category. The learned counsel contended that Toria is the same thing as Taramira, We regret our inability to accept this contention which cannot be supported even from the botanical point of view. The former fall in the family of Eruca Sativa while the latter falls in Brassica family.
8. Upon a careful consideration of the order of the learned Appellate Tribunal we have come to the conclusion that although the Members intended to follow the common meanings they have failed to adopt the popular meaning and have, in fact, adopted the broader botanical definition of the word "mustard" in coming to the conclusion that Taramira like cauliflower, Turnip and Radish falls in the same family of mustard.
9. We regret our inability to accept the contention for the simple reason that while Toria oil which like "Sarson Ka Tail'' is commonly known as "Karwa Tail" and is sold as a substitute for Sarson oil, Taramira is essentially a pungent, bitter and irritating oil. Even according to the definitions cited before us Taramira is not included in the expression Toria or Sarson which is an entirely different substance. In the resuit we answer the question posed for our consideration in the negative.
10. Before we close we may state that although before the Appellate Assistant Commissioner the argument was canvassed that Taramira is an edible oil used for human consumption, the plea appears to have been dropped before the Appellate Tribunal and while we decide the question referred to us, we may not be understood to have agreed with the assertion of the Department before the Appellate Assistant Commissioner that Taramira is not an edible oil. As this question does not arise, we refrain from expressing any view in this behalf.
11. Under these circumstances there shall be no order as to costs.