JUDGMENT Prakash Krishna, J.
1. These two revisions arise out of a common order dated 9th February, 1998 passed by the Trade Tax Tribunal, Ghaziabad in second appeal no. 2290 of 1994 and 230 of 1999 for the assessment year 1989-90(U.P. and Central).
2. The rate of taxability of park equipment, its accessories, spare components, etc. is involved in these revisions. The applicant is a manufacturer of Amusement Park Equipment, Baby Train, Bhoot Bungalow, Striking Car, Laughing Crown, Appu umbrella etc. The applicant before the assessing authority claimed that; the goods manufactured by it are classified goods and liable to be taxed under the notification No. 6566 dated 12th of September, 1976 under the Entry-Indoor and Outdoor sports and games. The said contention was not accepted by the Assessing Authority on the finding that the equipments manufactured by the dealer are utilized in amusement park and they do not classify themselves under the category "games" or "sports'". It was noticed by the Assessing Authority that the dealer itself has realized the tax on the sale of manufactured goods at the rate of 10 per cent. The main object of the goods manufactured by the applicant being the recreation and amusement of the children and therefore the Assessing Authority treated these goods as unclassified one. The assessment order was modified in appeal. The first appellate authority was of the view that the goods which are used for recreation and amusement fall in the category of "games and sports" and therefore, the goods in question will fall under the category "goods for indoor or outdoor games or sports." In further: appeal, by the department, the Tribunal has set aside the order of the First Appellate Authority and restored that of the Assessing Officer.
4. Now therefore, in exercise of the powers under sub-section (5) of Section 3 of the Central Sales Tax Act, 1956 (Act No. 74 of 1956), read with Section 21 of the General Clauses Act, 1897 (Act No. X of 1897), the Governor is pleased to rescind with effect from September 15/1966, Government notification No. St-11-8454/X-11(2)-75 dated, October 1,1975.
2- Under Sub-section (5) of the said Section 8, the Governor is further pleased to direct that, with [effect from September 15, 1986, the tax payable under the said Act of 1956 by any dealer registered under Section 7 there of and having his place of business in Utter Pradesh, in respect of the sale by him in the goods mentioned in column 2 of the List below shall be calculated at the rate mentioned against each in column 3 of the said List.
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5. Under the aforesaid notification the goods for indoor or outdoor games or sports have been made liable to tax at the rate of 4 per cent Such goods which have been included in any other notifications issued under the Act, have been excluded from the above entry. However, toys, swing, Jhoola, medals, cups, trophies, badges and whistles have been included and are liable to be taxed at the rate of 4 per cent. The question which falls for determination is whether the goods manufactured by the applicant fail within the aforesaid entry and should be treated as goods for indoor or outdoor games or sports. The learned counsel for the applicant strenuously contended and placed heavy reliance on the order of the first appellate authority and on the dictionary meaning of "games".
6. According to the Encyclopaedia Britannica:-"Game/ a word which in its primary and widest significances means any amusement of sport.......Apart from its primary general meaning the word has two specific applications, first to a contest played as a recreation or as an exhibition of skill... and secondly, to those wild animals which are the objects of the chase and their fresh is used for food distinguished, as such from meat, fish and poultry and from the flesh of the deer to which the name 'venison' is given.....a special use, (Gaming or gambling) restricts the term to the playing of games for money or to betting and wagering on the results of events, as in horse-racing etc."
7. It is also relevant to look into the meaning of the word 'games' as explained in the Advanced Learner's English Dictionary by Collins Cobuild which is as follows:-
"Game is an activity or sport usually involving skill, knowledge, or chance, in which you follow fixed rules and try to win against an opponent or to solve a puzzle."
8. The word "sport'' as defined, explained and the meaning assigned to it in the Advanced learner's English Dictionary by Collins ? Cobuild is reproduced as below:-
"Sports are games such as football and basketball and other competitive leisure activities which need physical effort and skill"
9. Reliance was also placed on the judgment of this Court in CST v. Bhutani Sports STI 1982 Allahabad S.C. 273. It has been held in this case that baby walker is to be taxed as a toy and not as a tricycle. Similarly, balloons are toys in the common commercial parlance and cannot be treated as rubber goods vide CST v. Kashi Natho Arora 1985 UPTC 374.
10. The learned standing counsel on the other hand submitted that the words "indoor or outdoor games of sports" are conceptually different from the items being manufactured and sold by the dealer applicant. The dictionary meanings of words 'games and sports' being very wide, a restricted meaning should be assigned to them. In common parlance Toy Trains, Bhoot Bungalow etc., are not treated either as indoor games or outdoor games. Elaborating the argument, it was' submitted that applying the established principles of interpretation of Entry of taxing Statute, the dictionary or scientific meaning of a word is not to be universally applied.
11. To find out appropriate solution of the controversy in hand it is proper to look into the principles of, interpretation; of Entries. The settled: principle is that the items in the taxing Statute muse be construed in the sense in which they are sold by the dealer and purchased by the customers. The operation of a notification has to be adjudged not by the object which the rule making authority had in mind but by the words which it has employed to effectuate the legislative intent (See A.C.T.O ward 3 Circle, Jaipur v. Shiv Shakti Gold Finger (1991) 83 STC 267 (Rajasthan). It is firmly established that classification of goods should be according to their popular meaning as they are understood in their commercial sense and not as per the scientific or technical meaning. The Supreme Court has observed that how the product is identified by the class or section of people dealing with or using the product, is also a test when the Statute itself does not contain any definition and commercial parlance would assume importance when the goods are marketable. It has considered the observation made by the Exchequer Court in King v. Planters Nut and Chalklet Co. Ltd. 1951 (CLR 122). Dealing with the meaning of the term 'Vegetables" it was held by the said Court that it is not botanist's conception as to what constitutes a 'fruit or vegetable' which must govern the interpretation to be placed on a word but rather what would ordinarily mean in the matters of commerce in Canada be induced therein. Botanically the oranges and lemons are berries but otherwise no one would consider them as such.
12. In Ram Avatar Buddhi Prasad v. Assistant Sales Tax Officer AIR 1961 S.C. 1325 the Supreme Court was concerned with the word Vegetables' occurring in C.P. and Bearer Sales Tax Act, 1947 and it was held as follows:-
"But this word must be construed act 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 a word off every day use it must be construed in its popular sense, meaning and with dense which people conversant with the subject matter with which the Statute is dealing would attribute to it. It is to be construed as understood in common language."
13. The same principle was reiterated in Commissioner of Sales Tax, M.P. v. Jaswant Singh Charan Singh AIR 1967 S.C. 1454. In this case it was held that the charcoal would be included in coal, with the following observations:-
"Now, there can be no dispute that while coal is technically understood as a mineral product, charcoal is manufactured by human agency from products like wheat and other things. But now it is well established that while interpreting the items in Statute like Sales Tax Act, resources should be had not to be scientific or technical meaning of such terms but. to their popular meaning, meaning attached by those dealing in them, that is to say, to their commercial sense. The same view has been reiterated by the Apex Court in the case of South Bihar Sugar Mills Limited v. Union of India AIR 1968 S.C. 922 and Dunlop India Ltd. v. Union of Indian 1977 S.C. 597.
14. The indoor and outdoor game, in their popular meaning comprises such games, or sports which develops mental or physical skill off a human being. A game especially one involving bodily exercises is covered within the meaning of word "sports" as defined in the Chamber's dictionary. To my mind games and sports are qualified by the words indoor and outdoor. In common parlance the indoor and outdoor games and sports conceptually require skill in which fixed rules are followed to win against an opponent. The element of skill and development of physical or mental faculty of a human being is the principle behind indoor and outdoor games and sports. Such activity with goods which provide mere amusement or entertainment will not fall in the category of indoor and outdoor games or sports. The goods manufactured by the applicant such as Striking Car, Bhoot Bungalow etc. provide amusement and entertainment only but does not require any skill. They themselves are also not helpful for the purposes of development of mental and physical faculty of the player. No fixed rules are required to be followed in the amusing activity of striking Car etc.
15. The words indoor and outdoor games are not defined either under the U.P. Trade Tax Act or elsewhere. The dictionary meaning of sports and games is very wide. In the context of the Entry in the Notification in question, I am of the view that the indoor and outdoor games have been used in popular sense. It has been found as a fact by the Tribunal that the items manufactured by the applicant may i! provide recreation but there is no element of competitiveness among the players. This element of competition is always there amongst the players either indoor or in outdoor games or sports, which is lacking in the players when the goods in question are in use. They only provide recreation and amusement and there is nothing for competition requiring any skill op physical exercise which ultimately may result in the mental and physical development of the player. The Striking Car, Bhoot Bungalow etc. provide entertainment or amusement and lacks any rule to play.
16. Reference can be made to certain observations of the apex court, though made in a different context but has some relevance to the issue involved herein. The Supreme Court in the cage of P.S. RAMAMAMOHANA RAO V. A.P. AGRICULTURAL UNIVERSITY AND ANR., JT 1997(7) SC 17, while considering the age of retirement of physical director in the collage. Has observed that it is one of his important duties to guide the students about the various rules of the various games and sports. The relevant portion reads as follows:-
"It is well known that different games and sports have different rules and practices and unless the students are guided about the said rules and practices they will not be able to play the games and participate in the sports in a proper planner. Further, in our view, it is inherent in the duties of a PHYSICAL DIRECTOR that he imparts to the students various skills and techniques of these games and sports. There are large number of indoor and outdoor games in which the students have to be trained. Therefore, he has to teach them several skills and the techniques of these games apart from the rules applicable to these game."
17. The Tribunal has rightly held that the goods and apparatus meant for amusement park do not fall within the category of sport goods under the aforesaid notification.
18. Before saying omega to this case, it may be noticed that the applicant realized tax from its customers at the rate of 10% treating the goods in question as unclassified items, as mentioned in the assessment order.
19. In the result, there is no merit in the revisions. Both the revisions are hereby dismissed. No order as to costs.