( 1 ) IT is rather amazing that despite the law relating to interpretation of goods in a statutes like sales tax Legislations having been well settled by the Supreme Court holding that it is the popular meaning of the commodity as understood in the trade by those who sale purchase and use them, difference of opinion has surfaced between the two learned judges of this Court on the issue leading to seeking of third judge opinion. ( 2 ) THE simple question is as to whether the commodity sold by the assessee under the brand name Lite-N-Soft Gel can be held to fall in the category of chemicals or hydrogenated edible oil or remains as an unclassified goods under the provisions of the Karnataka Sales Tax Act, 1957 (in short the Act)?. ( 3 ) THIS revision petition has been filed by the assessee under Section 23 (1) of the Act assailing the order of the Appellate Tribunal, which has held that the gel manufactured and sold by the assessee is an unclassified goods and thus liable to sales tax under Section 5 (1) of the Act. Section 23 of the Act unambiguously mandates that the only plea available to the petitioner approaching this court under revisional jurisdiction can be that the Appellate Tribunal has either failed to decide or has decided erroneously any question of law. Therefore, this court, in its revisional jurisdiction can only inquire about the correctness of a question of law which had fallen for consideration before the Appellate Tribunal and cannot harp on a question of fact by entertaining fresh evidence as has been done in the present case. Curiously, in the present case, the assessee was permitted to lead fresh evidence to alter its stand on composition of gel so as to make out a completely new case for the first time before this court. This is one of the major aspects leading to difference of opinion among the learned judges. According to Saldhana, J. such a course is open to this court. Whereas, Gururajan, J. found it difficult to agree on this score and has expressed dissenting opinion. ( 4 ) THE assessee is a private limited company. It is a registered dealer under the provisions of the Act. Its head office situate at Bombay. It has its manufacturing unit at Chelpun, Maharashtra. Whereas, Gururajan, J. found it difficult to agree on this score and has expressed dissenting opinion. ( 4 ) THE assessee is a private limited company. It is a registered dealer under the provisions of the Act. Its head office situate at Bombay. It has its manufacturing unit at Chelpun, Maharashtra. According to the assessee, it has branch offices all over India including the one at Bangalore. According to the petitioner, it is engaged in manufacture of bakery raw materials like Cake Improvers, Cake Mixers etc. , these goods are branded as Helios Gel and Helois Mix. The specific and consistent stand of the assessee before the departmental authorities and the Appellate Tribunal had been that it manufactures Gel (a) by dissolving the Emulsifier blend in polyvalent alcohol at desired temperatures; (b) Potassium / sodium stearate is mixed with Fat in water separately; (c) the mixture of (a) and (b) is mixed under controlled conditions with agitation; (d) the finished product gels on cooling and then packed. ( 5 ) AS could be found from the order of the Appellate Tribunal, the composition of Gel manufactured by the assessee consists of Water 29%, Emulsifer 35%. Polyvalent Alcohols 27%, Soap 3% and Fats 6%. Admittedly, the gel manufactured as above is sold to confectioneries and bakers. It is also not in dispute that Gel is used as cake improver and is known as such in the trade. It is an edible substance. It provides sponginess to the cakes, improves its consistency and the shelflife. In the trade therefore persons conversant in dealing with gel, it is neither regarded or called as chemical or edible oil. Still the plea of the assessee before the authorities and the Appellate Tribunal was that it should be treated as chemical and before this court by changing its earlier stand as Hydrogenated edible oil. ( 6 ) BEFORE proceeding further, I may briefly indicate the reasons as to why and how the controversy cropped up. The present proceedings relates to the assessment year 1994-95. Under the scheme of the Act, as stood at the material time, unless goods are found mentioned in the Second Schedule with rates of tax applicable to those, they were liable to suffer tax at the rate of 8%. The present proceedings relates to the assessment year 1994-95. Under the scheme of the Act, as stood at the material time, unless goods are found mentioned in the Second Schedule with rates of tax applicable to those, they were liable to suffer tax at the rate of 8%. Further, at the material time, chemicals other than Caustic Soda, being item No. 10-A of Part C to the Second Schedule was liable to tax at the rate of 4%. Similarly, Hydrogenated Oils and Cooking medium, being item 1 (iii) of Part E to the second Schedule was liable to tax at 10%. But, from 1995-96, this rate was reduced to 4%. Therefore, the assessee found it advisable and beneficial to claim its product Gel to be classified as Chemicals or in the alternative, realising the future benefits for the period 1. 4. 1995 onwards, to claim it as Hydrogenated Oils and Cooking Medium. ( 7 ) THE Appellate Tribunal by applying the use-test i. e. the use for which the commodity is sold in the market, took the view that the Gel manufactured by the assessee cannot by any stretch of imagination be treated as Chemical as claimed it further held that since it does not fall in any of the classified goods mentioned in the Second Schedule to the Act, therefore it has to be taxed only under Sections 5 (1) of the Act as unclassified goods. Being dissatisfied with the order of the Appellate Tribunal the present revision petition was preferred. Acceding to the prayer of the petitioner that the product sold by it should be sent for analysis to the Central Food Technological Research Institute, Mysore (in short the CFTRI), with a specific direction to ascertain its fat/vegetable oil composition. Report dt. 22. 3. 2001 sent by the CFTRI, was produced by the assessee through I. A No. 1. According to this report, in the Gel manufactured by the assessee, the fat content was 49. 50% by wt. This report by itself can hardly be of any assistance in ascertaining as to whether the commodity in question is to be treated as classified or unclassified goods under the Act. Anyhow, Saldanha,j. by relying on this report, accepted the assessees case and held that the Gel manufactured by the assessee falls under the head Hydrogenated Oils and Cooking medium. This report by itself can hardly be of any assistance in ascertaining as to whether the commodity in question is to be treated as classified or unclassified goods under the Act. Anyhow, Saldanha,j. by relying on this report, accepted the assessees case and held that the Gel manufactured by the assessee falls under the head Hydrogenated Oils and Cooking medium. But, Gururajan, J. has recorded dissenting opinion, because according to him, it is impermissible on the part of this court to allow assessee to build up a new case on fact and thereupon grant the desired relief. ( 8 ) THERE are innumerable cases laying down the principles governing classification of goods for fiscal statutes including those which are law under Article 141 of the Constitution and binds all including this court. It clearly says that the goods, the sale of which, are to be taxed under the sales tax laws, have to be constructed in the sense in which they are popularly understood by those who deal in them and who purchase and use them. [see. Sales Tax Commissioner, U. P vs. S. N. Bros. , ( AIR 1973 SC 78 )]. In this case, the Supreme Court has further held that the extreme, peculiar and scientific meaning of the goods which might sometimes deviate from the popular meaning, cannot prevail. Reliance was placed on the judgment of 5-judges bench in the case of Ramvatar Budhiprasad vs. Asst. Sales Tax Officer, ( AIR 1961 SC 1325 ), in which betel leaves were not considered as Vegetable. In Commr. of Sales Tax, M. P. Indore vs Jaswant Singh Charan Singh, ( AIR 1967 SC 1454 ), the Supreme Court held while interpreting items in statutes like the Sales Tax Act, resort should be had not to the scientific or 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, to their commercial sense. ( 9 ) THE Supreme Court again in the case of M/s. Mukesh Kumar Aggarwal and Co. vs. State of M. P. , ( AIR 1988 SC 563 ) has held that. ( 9 ) THE Supreme Court again in the case of M/s. Mukesh Kumar Aggarwal and Co. vs. State of M. P. , ( AIR 1988 SC 563 ) has held that. In a taxing statute words which are not technical expressions or words of art, but are words of everyday use, must be understood and given a meaning, not in their technical or scientific sense, but in sense as understood in common parlance i. e. that sense which people conversant with the subject matter with which the statute is dealing would attribute to it. Such words must be understood in their popular sense. The particular terms used by the legislature in the denomination of articles are to be understood according to the common, commercial understanding of those terms used and not in their scientific and technical sense for the legislature does not suppose our merchants to be naturalists or geologists or botanists. ( 10 ) EVEN, Sri. Sarangan, learned Sr. Counsel appearing for the assessee could not dispute that the Gel manufactured by the assessee was neither sold nor used either as hydrogenated Vegetable oil or cooking medium nor it was identified by the trade or its users as a chemical. The word chemical used in Entry 10a of part C to the Second Schedule essentially refers to non-edible commodity because all edible commodities are specified specifically either in one or the other entry of the Second Schedule. ( 11 ) IN the case of Sales Tax Commr. IU. P (supra), the point at issue was whether the food colours and syrup essence which were edible goods, could be said to be covered by the generic entries Dyes and colours and composition thereof and scents and perfumes as specified in the U. P. Sales Tax Act. The Supreme Court held that the food colours and syrup essences cannot be taken as included in the latter two entries, which comprised non edible commodities. ( 12 ) FURTHER more, Gel manufactured by the assessee, may have fats as one of its nutrient component but that by itself can hardly be of any consequence in classifying it in one or the other entry of the statute like the Act. All edible substances will have fats in varying percentages. This can hardly be a ground for classifying goods for taxing purposes. All edible substances will have fats in varying percentages. This can hardly be a ground for classifying goods for taxing purposes. The courts have taken the view that even ice and water, which have the same and exact chemical composition i. e. , two atoms of Hydrogen and one atom of oxygen, are commercially different commodities for the purpose of taxing statute. There cannot be a better illustration than this to demonstrate the fallacy in identifying the commodity by basing the reasoning on chemical compositions, and similarly the nutrient value of edible goods. a. Further, the emulsifying agents and stabilising agents have been defined in rule 60 of the Prevention of Food Adulteration Rules 1955 (in short, the Rules ). These are defined to mean substances which, when added to food, are capable of facilitating a uniform dispersion of oils and fats in aqueous media, or vice versa, and /or stabilising such emulsions. Rule 61 of the Rules puts restrictions on use of emulsifying or stabilising agents in any food, expect where the use of emulsifying or stabilising agent is specifically permitted. The second proviso to rule 61 provides that Polyglycerol esters of fatty acids and Polyglycerol ester of interesterified Ricinoleic acid may be used in bakery products and in chocolate to the extent of 0. 2% by weight. This proviso also shows that Gel which is an emulsifying agent is an article of established and independent identity and cannot be classified as either chemical or hydrogenated oil. b. it may also be noticed here that for long hydrogenated oil has acquired definite identity. In the case of Tungabhadra Industries Ltd. vs. Comml. Tax Officer [ (1960) 11 STC 827], the Supreme Court has held that hydrogenated oil is prepared from refined oil by the process of passing hydrogen into heated oil in the presence of a catalyst (usually finely powered nickel), two atoms of hydrogen are absorbed. A portion of the oleic acid which formed a good part of the content of the groundnut oil in its raw state is converted, by the absorption of the hydrogen atoms, into stearic acid it is this which gives the characteristic appearance as well as the semi-solid condition, which it attains. The Gel, manufactured by the assessee, nowhere fits in with the process of manufacturing hydrogenated edible oil. The Gel, manufactured by the assessee, nowhere fits in with the process of manufacturing hydrogenated edible oil. For that matter, the Gel can never be used for cooking purpose in the kitchen. ( 13 ) IT may be of relevance to notice here that if the Gel manufactured by the petitioner could at all appropriately fit any where in the Second Schedule, then it can only be under entry 21 of Part C which reads Confectionery, cakes and biscuits. But, since, neither the department nor the assessee has taken up any such stand, there is no occasion for me to hold so. So far as the view taken by Gururajan, J. that it is impermissible for the assessee or the department to make out a new case on facts in the revision is concerned, I am in entire agreement with him. ( 14 ) FOR the aforesaid reasons, I hold that the assessee is not entitled to any relief as claimed in the revision petition, which is accordingly dismissed. --- *** --- .