JUDGMENT Rajes Kumar, J.
1. Present revision under Section 11 of the UP Trade Tax Act (hereinafter referred to as the "Act") is directed against the order of the Tribunal dated 11th September 2003 relating, to the assessment year. 1994-95
2. The question involved in the present revision relates to the taxability of "Fit kit Exerciser" tribunal has explained it as a cycle with a seat and paddle without any wheel. It is used for body exercise to maintain the body fitness.
3. The claim of the applicant is that such "Fit Kit Exerciser" is liable to tax at the rate of 3 percent under Notification No. ST-II-1097/XI-2 (3)-88-U.P. Act-XV/48-48-Order-91, dated 29.07.1991 and at the rate of 2 percent under Notification No. TT-2-3403/XI-9(116)/94-U.P. Act-15/48-Order-94,dated 01.10.1994 within the entry "Goods for indoor and outdoor games or sports" Assessing authonts, however, held that "Fit Kit Exerciser' is not covered under the entry Goods for indoor and outdoor games or sports and being not classified elsewhere liable to tax as an unclassified item at the rate of 8 percent. First appellate authority accepted the claim of the applicant and held that it is liable to tax under the aforesaid notifications under the entry "Goods for indoor and outdoor games or sports" Commissioner of Trade Tax filed appeal against the order of the first appellate authority, which has been allowed by the impugned order Tribunal has set aside the order of the first appellate authorithy and restored the order of the assessing authority. Tribunal held that Ft Kit Exerciser in common parlance is not known as goods for games or sports. Tribunal held that it is an item used for body exercise to maintain the fitness of the body and does not provide any eniovment or amusement or any kind of recreation Tribunal also held that it is used for self-bodily execercise in which there is no involvement of contest or competition Tribunal held that by subsequent Notification No. Ka. NI-2\3368,XI-9 (231)/94-I U.P. Act- 15-48-Order-2000 (40). dated October 25. 2000 physical exercise, fitness equipment" has been included under the entry "Goods for indoor or outdoor games or sports". It means that physical exercise and physical equipment were not included earlier prior to 25th October, 2000 under the entry "Goods for indoor or outdoor games or sports"
4. Heard Sri Bharat Ji Agrawal learned Senior Advocate assisted by Sri Amit Jaitly for the applicant and Sri B.K. Pandey learned Standing Counsel.
5. Learned Counsel for the applicant submitted that the "Fit Kit Exerciser" is a gymnastic goods and is also known as sports goods. He submitted that to be sports goods, it is not necessary that there must be a contest or competition. The sports goods can be an item, which can be played individually also. He also submitted that it is wrong to say that in common parlance it is not known as goods for games or sports. He submitted that in the subsequent Notification No. KA. NI-2-3368/XI-9(231)/94-U.P. Act-15-48-Order-2000 (40), dated October 25, 2000 "'physical and fitness equipment' has been included under the entry "Goods for indoor or outdoor games or sports' He submitted that the subsequent notification is a clarifactory in nature and can be a best guide for the interpretation of the present entry. In support of his contention, he relied upon the decisions of the Apex Court in the case of Sun Export Corporation v. Collector of Customs, Bombay and Anr. reported in 111 STC 69 and Pappu Sweets & Biscuits, Etc. v. Commissioner of Trade Tax, U.P. reported in 1998 UPTC 1086.
6. Learned Standing Counsel submitted that by "Fit Kit Exerciser", no game is Played. It is not known as sports goods in common parlance and in commercial sense. He submitted that in a game or sport, there should be such activity, which gives enjoyment or amusement or recreation "Fit Kit Exerciser" is a device by which a human being does bodily exercise to keep fit his body and in the process of exercise, there is no enjoyment or amusement or recreation.
7. Having heard the learned Counsel for the parties, I have perused the order of the Tribunal and the authorities below.
8. Fit Kit Exerciser, which is subject matter of dispute and has been considered by the Tribunal, as a device having seat and a paddle like cycle without any wheel Admittedly it is used for body exercise just to keep the body fit. Now the question is whether such "Fit Kit Exerciser" is a goods for game or sport. It is useful to refer the relevant notifications, which require consideration.
9. Notification No. ST-II-1097/XI-2 (3)-88-U.P. Act-XV/48-48-Order-91, dated 29.07.1991.
21. Goods for indoor or outdoor games M or I 3 percent or sports, except those included in any other notification issued under the Act but including rubber bladders of various kinds of balls, toys, swing, jhoola, medals, cups, trophies, badges and whistles.
10. Notification No. TT-2-3403/XI-9(116)/94-U.P. Act-15/48-Order-94, dated 1.10.1994:
any activity or experience that gives enjoyment or recreation, pastime, diversion, such an activity requiring more or less vigorous bodily exertion and carried on according to some traditional form or set of rules whether outdoors or indoors.
THE LAW LAXICON any sport or amusement, public, private it includes physical contents, whether of man or beast, when practiced for the purpose of deciding wagers, or for the purpose of diversion, as well as game of hazard or skill by means of instruments or devices.
Games has been defined as follows:
Chamber's Twentieth Century Dictionary.
Sport of any kind, a contest for recreation, a competitive amusement according to a system of rules.
The Law Lexicon.
any sport or amusement, public, private. It includes physical contest, whether of man or beast, when practiced for the purpose of deciding wagers or for the purpose of diversion as well as games of hazard or skill by means of instruments or devices.
The New Shorter Oxford English Dictionary.
Competitive sport or pastime, contest, played according to rules and decided by skill, strength or luck.
Webster's New Twentieth Century Dictionary.
any contrivance, arrangement or contest intended to furnish sport, recreation or amusement, frolic, play, specific amusement or sport involving competition under specific rules.
Exerciser has been defined as follows:
The Webster's Dictionary.
Physical exertion for the sake of bodily health training or practise to develop skill aptitude, mental or spiritual powers, or something designed to do this.
Webster's New Twentieth Century Dictionary.
One who exercises, a mechanical apparatus for exercising.
13. Perusal of the aforesaid dictionary meaning shows that exerciser is a device in which there is involvement at the physical exeicisc tin the sake of bodily health training or practise to develop skill aptitude, mental or spiritual powers. It has not been considered as device to provide any enjoyment or recreation or fun or any kind of amusement or involve any contest or competition while in a sports, there is a concept of recreation, enjoyment and fun and in a game there should be contest or competition.
14. Applicant has not led any evidence to show that "Fit Kit Exerciser" in common parlance and in commercial sense is known as goods for game or sport. The Tribunal being a fact-finding authority recorded the finding that in common parlance and in commercial sense, it is not known as goods for game or sport contrary to the said finding. no material has been placed before this Court. The Apex Court in various decisions held that for the classification of the goods, it has to be considered as to how a commodity is known in common parlance and in commercial sense.
15. The Hon'ble Supreme Court in the case of Ram Avtar Budhai Prasad v. Assistant Sales Tax Officer 12 STC 286 held that the word 'vegetable' in Schedule of C.P. and Berar Sales Tax Act must be construed not in any technical sense nor from botanical point of view but as understood in common parlance in the case of Collector of Customs, Bombay v. Swastic Woolen (P) Ltd. Honble Apex Court held in para 4 "We are of the opinion that when no statutory definition is provided in respect of an item in this Customs Act or the Central Excise Act, this trade understanding, meaning thereby the understanding in the opinion of those who deal with the goods in question is the safest guide."
16. In the case of Commissioner of Sales Tax v. Sarin Chemical Laboratory reported in 24 STC 406, the question was whether the tooth paste and tooth powder was medicine or toilet requisite or medicine. The Division Bench of this Court held that it is a matter of common knowledge that toothpaste of tooth powder is an essential item of toiletry in the modern life. The Division Bench held as follows:
It is a matter of common knowledge that tooth paste and tooth power is an essential item of toiletry in modern life. The manufacturers of dentifrices like tooth paste, tooth powder invariably claim medicinal property for their products and some of them do possess prophylactic and remedial properties but whether they do or do not possess medicinal properties claimed by their manufacturers, the fact remains that they are used for dental cleanliness which is an essential Act of toilet. In fact, medicinal properties are claimed even in respect of large number of items of cosmetics such as lotions, creams, snows and powders but that does not mean that such article ceased to belong to the range of cosmetics and became medicines. The word 'medicine' means also is a word of every day use and we all know what medicine means. Act of brushing one's teeth with tooth paste or tooth powder is certainly is not the same thing as taking or using medicines.
17. The aforesaid decision has been approved by the Apex Court in the case of Sarin Chemicals Laboratories v. Commissioner of Sales Tax reported in 26 STC 339. The Apex Court has upheld the test of common parlance in the classification of goods.
18. In the case of Shri Baidya Nath Ayurved Bhawan Pvt. Ltd. v. Collector of Central Excise , the Apex Court held that Lal Dant Manjan which is being used for cleaning teeth only, is not a drug or ayurvedic medicine. The relevant portion is quoted below:
Cleaning teeth being an Act of daily toilet, dentifrices produced in the form of tooth powder used for cleaning teeth would be an article of Toilet as held by the Bombay High Court in the case of Commissioner of Sales Tax v. Vicco Laboratories 22 STC 169. Madras High Court in the case of V.P. Somasundra Mudaliar v. State of Madras (1963) 14 STC 943 also took the view that the tooth powder is a 'toilet' requisite. Hon'ble Supreme Court in the case of Sarin Chemical Laboratory v. Commissioner of Sales Tax, U.P. AIR 1972 SC 65 also held that tooth powder in common parlance is considered as a toilet article. In this judgment, Supreme Court referred to the decisions of Allahabad, Bombay and Madras High Courts mentioned above and confirmed the view taken y those High Courts that the tooth powder is a 'toilet requisite'.
19. In the case of BPL Pharmaceuticals Ltd. v. Collector of Central Excise reported in 104 STC 164, the Supreme Court was concerned with "selsun" anti-dandruff preparation containing 2.5 percent of selenium sulphide, which is the full therapeutic limit permissible under the pharmacopoeia. The said product was manufactured under the drug licence as a medicine, put up as a medicine, used under doctors advice and sold through chemist's shops on a doctors prescription. It was held medicine as it was understood in common parlance as medicine.
20. In the case of B. Shah & Co. v. State of Gujarat reported in 28 STC 5. Gujarat High Court held nycil-dedicated powder as a medicine Hon'ble Gujarat High Court on a consideration of definition of word "medicines" held as follow:
It is thus clear that the word "medicine" is susceptible of two distinct meanings and that in its ordinary sense as applied to human ailments, it means something which is administered either internally or externally in the treatment of disease or the relief of sickness. It is now well settled that the names of articles, sales as well as purchases of which are liable to be taxed, given in a statute, unless defined in the statute must be construed not in a technical sense but as understood in common parlance, vide Ramavatar Budhai Prasad v. Assistant Sales Tax Officer. The word "medicine" appearing in Entry-13, Schedule-C, will therefore, have to interpreted not in a technical sense but as understood in common parlance. In its popular sense, "medicine" is a remedial agent, a substance which may be sold in various forms such as liquid, tablets, capsules or powder, which is administered in the treatment of disease and which has the property of curing or remedying disease. This meaning also accords with the dictionary meaning to which we have just referred above. If this is the true meaning of "medicine" in popular parlance, many articles which may not be medicine technically or strictly so called would be covered by the wide ambit of the word "medicine" and we see no reason why Nycil powder, with its special qualities and attributes, its character and composition and its recommended or intended use as advertised by the manufacturers would not be covered within the meaning of the word "medicine" as understood in popular parlance.
21. In the case of Commissioner of Sales Tax v. S/S Balsara Hygiene Products Ltd. reported in 1986 UPTC 367. Odomos has been held as a medicine. This Court held:
There cannot be dispute about the fact that Odomos is used only as mosquitoes repellent. The purpose is to save the human skin from mosquitoes which results in several infectious disease; and mostly Malarial Fever etc. It is true that it is not used as a medicine to cure some disease or to heal up some wound but it is certainly a preventive medicine which prevents the body from being infected by the bite of the mosquitoes. One redeeming feature which has also been mentioned by the Tribunal in its order is that manufacturing of this commodity is controlled by the authorities under the Drug and Cosmetics Act, 1940, which also lends support to the contention of the respondent-assessee that it is used like a medicine.
It has been contended by the department that Odomos is available even in general stores merchandise shops and is not sold at the Chemist shop exclusively. In my opinion the mere fact that Odomos is available even in general merchandise shops will not detract the substance from being used as a preventive medicine. It is well settled that common parlance meaning has to be applied while interpreting entries under the fiscal statute and the Courts have said time and again that it is not safe to be always guided by the dictionary or technical meanings. It is, therefore, not necessary to deal with various authorities cited by the learned Counsel for the assessee on the point. Since in common parlance Odomos is used as a medicine and is known as a medicine, in my opinion, the Tribunal was fully justified in holding that Odomos was covered under the notification dated 7th September, 1981.
22. Special Leave Petition against the aforesaid judgment has been dismissed by Hon'ble Supreme Court which is reported in 65 STC 5 (FRCS).
23. I do not find any substance in the argument of learned Counsel for the applicant that the subsequent Notification No. KA. NI-2-3368/XI-9 (231)/94-U.P. Act-15-48-Order-2000 (40), dated October 25, 2000, is clarificatory in nature. It is always open to the legislature to include any item within the ambit of a particular goods by fiction though it is not generally and usually covered under such item Thus, merely because by Notification No. KA. NI-2-3368/XI-9 (231)/94-U.P. Act-15-48-Order-2000 (40), dated October 25. 2000 "physical exercise and fitness equipment' has been included under the entry "Goods for indoor or outdoor games oi spurt" if cannot be said that such equipment was included prior to 25th October. 2000 under the entrv "Goods for indoor or outdoor games or sports' The subsequent inclusion of the physical exercise and fitness equipment vide Notification No. KA NI-2-3368/XI-9 (231)/94-U.P Act-15-48-Order-2000 (40). dated October 25. 2000 reveals that it was not included under the entry "Goods for indoor or outdoor games or sports" and for the purposes to levy tax at the rate of 3 percent, it has been included under the aforesaid entry. The decisions cited by the learned Counsel for the applicant, namely, Sun Export Corporation v. Collector of Customs, Bombay and Anr. (supra) and Pappu Sweets & Biscuits, Etc. v. Commissioner of Trade Tax, U.P. (supra) are distinguishable and are not applicable to the present case.
24. The argument of the learned Counsel for the applicant that under heading 9506 of Central Excise Tariif both article and equipment for general and physical - exercise and Sports and outdoor games have been classified together and excisable and subject to excise duty at the rate of 3 percent and therefore. Fit Kit Exerciser should be treated as a sport goods or goods for game has no substance The Parliament in its own wisdom can classify any goods in any manner, on the consideration of their own viewpoint. Merely because under the Tariff Heading 9506, both article and equipment for general and physical exercise and Sport goods and outdoor game are classified together, it does not mean that article and equipment for general and physical exercise are sport goods or good for outdoor games. The argument of the learned Counsel for the applicant goes against the applicant Entry of the Tariff item No. 9506 shows, article and equipment for general and physical exercise Sport goods and outdoor games as separate items and not the one item.
25. For the reasons stated above, I am of the view that "Fit Kit Exerciser" is not a goods for game or exports and is not covered under the entry "Goods for in door or out door games or sports..." of Notification No. ST-II-1097/XI-2 (3)-88-U.P., Act-XV/-48-Order-91, dated 29.07.1991 and Notification No. TT-2-3403/XI-9(116)/94-U.P. Act-15/48-Order-94, dated 01,10,1994 and being not classified else where, liable to tax as unclassified goods for the period involved in the present revision.
26. In the result revision fails and is. Accordingly, dismissed.