Madhava Reddy, Ag. C.J.
1. The principle question that falls for consideration in this batch of writ petitions is whether the turnover relating to sale of pillow covers is exempt from tax under section 8 of the Andhra Pradesh General Sales Tax Act, hereinafter referred to as 'the Act', read with item 5 of the Fourth Schedule to the Act.
2. The petitioner is a registered dealer under the Act and deals in cloth and cotton pillow covers and assessed to sales tax by the Commercial Tax Officer, XI Circle, Hyderabad, respondent herein. For the purpose of the disposal of this principal question, it is sufficient to notice the facts in W.P. No. 6666 of 1982.
3. As per the monthly returns, the turnover of the petitioner for the assessment year 1978-79 is Rs. 11,97,396.02. Out of this, the turnover relating to the sales of cotton pillow covers amounts to Rs. 47,147.79 during the said assessment year. It is common ground that the sales of cloth are exempt from tax under item 5 of the Fourth Schedule 'cotton fabrics'. It is the case of the petitioner that he is a second dealer of these cotton pillow covers, he having purchased the same from registered dealers in the State and that he did not collect any sales tax on the transactions relating to pillow covers. His contention is that inasmuch as the pillow covers sold by him were made exclusively of cotton, they are covered by item 5 of the Fourth Schedule and are exempt from tax.
4. The facts in W.P. No. 6673 of 1982 are identical to those in W.P. No. 6666 of 1982 and relate to the assessment year 1979-80 except that for that year, the assessment was completed by an order dated 19th August, 1982, and the turnover relating to sales of pillow covers was brought to tax.
5. Two other points arise in W.P. Nos. 5732 of 1979 and 5374 of 1979. The facts relevant thereto may now be noticed.
6. W.P. No. 5732 of 1979 relates to the assessment year 1977-78. The petitioner returned a turnover of Rs. 10,35,314.13 claiming exemption on the entire turnover of tax. His claim was admitted and the assessment order dated 11th September, 1978, in assessment No. 1084/77-78 was passed. It is his case and also common ground that he has purchased pillow covers made of cotton from the local dealer and sold the same without collecting any sales tax from the customers. However, by a notice dated 16th July, 1979, the respondent-Commercial Tax Officer called upon him to show cause why the assessment should not be revised and the turnover relating to pillow covers be assessed to tax at 4 per cent adding the gross profit of 15 per cent on the turnover of that particular year relating to pillow covers which are Rs. 23,720.94. The officer purported to issue this notice in exercise of the powers vested in him under section 14(4)(cc) of the Act which was introduced by way of amendment by section 4 of the Andhra Pradesh General Sales Tax (Amendment) Act, 1978 (Act No. 14 of 1978). This amendment received the assent of the Governor on 7th April, 1978, and was published in the Andhra Pradesh Gazette, Extraordinary, dated 10th April, 1978, but was given retrospective effect and is deemed to have come into force on 17th January, 1978. In this writ petition, this show cause notice is called in question and a writ of mandamus or any appropriate direction is sought against the respondent not to take any further proceedings pursuant to the said notice.
7. The facts pertaining to W.P. No. 5374 of 1979 are identical to those in W.P. No. 5732 of 1979 and the show cause notice impugned therein is dated 13th July, 1979, and is in respect of the assessment order relating to the assessment year 1976-77.
8. The further questions that arise in these two writ petitions are whether the Commercial Tax Officer has jurisdiction to review or reopen the assessment orders under section 14(4)(cc) of the Act. Secondly, even if he is empowered under section 14(4)(cc) to review or reopen the assessment orders already made, whether that power can be exercised in respect of a turnover relating to a period anterior to the date of the enforcement of section 14(4)(cc), i.e., in respect of the assessment years 1976-77 and 1977-78.
9. Under section 5(1) of the Act, every dealer whose turnover per year is not less than Rs. 25,000 is liable to pay sales tax for each year at 4 paise in a rupee of is turnover. If this was the only provision, then all goods including the cotton fabrics and pillow cases would have been exigible to tax irrespective of whether the cotton cloth, from which the cotton pillow cases are prepared, had already suffered tax or not. Further, on every sale of goods, whether first, second or subsequent, sales tax would be payable. In other words, they would have been subjected to tax at multiple points even if the sales were within the State. However, sub-section (2)(a) of section 5 lays down that in the case of the goods mentioned in the First Schedule, tax shall be levied at the rate mentioned therein and only at the point of the sale specified therein where the sales are effected in the State irrespective of the quantum. In the case of goods mentioned in the Second Schedule, tax is leviable under sub-section (2)(b) of section 5 at the rates mentioned therein and only at the point of purchase. In respect of the goods mentioned in the Fifth Schedule, tax shall be levied at the rates and at the points specified in respect of every item mentioned therein under sub-section (2)(c) of section 5. We need take note of only section 8 which exempts from tax certain goods. The goods thus exempt from tax are specified in the Fourth Schedule. The petitioner claims exemption from tax in respect of turnover relating to cotton pillow cases under item 5 of the Fourth Schedule which reads as follows :
(Goods exempted from tax under section 8)
5. Cotton fabrics, rayon or artificial silk fabrics and woollen fabrics.
Explanation. - The expression in items 5 - 6 and 7 shall have the same meanings assigned to them in the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (Central Act 58 of 1957).'
The contention of the petitioner is that cotton pillow cases prepared out of cotton cloth is 'cotton fabric' and therefore exempt from tax. Alternatively, he contends that the cotton pillow cases fall under 'readymade garments' covered by item 87 of the First Schedule and therefore liable to single point tax at 4 paise in a rupee.
8. If none of the above contentions are accepted, then cotton pillow cases would be liable to tax under section 5(1) of the Act at every point of sale. 'Cotton fabric' as such is not defined in the Act. By virtue of the explanation to item 5 of the Fourth Schedule to the Act, the expression 'cotton fabrics' shall have the same meaning assigned to it in the Additional Duties of Excise (Goods of Special Importance) Act, 1957. That expression, as it stood on the date relevant for the purpose of these writ petitions, reads as follows :
'Cotton fabrics, other than (i) embroidery in the piece, in strips or in motifs, and (ii) fabrics impregnated, coated or laminated with preparations of cellulose derivatives or of other artificial plastic materials - (a) cotton fabrics, not subjected to any Five per centprocess. ad valorem. (b) cotton fabrics, subjected to the Five per centprocess of bleaching, mercerising, ad valorem.'dyeing, printing, water-proofing,rubberising, shrink-proofing,organdie processing or any otherprocess or any two or more of theprocess.
But this description of the cotton fabric contained in the said Act does not also solve the problem before us. The description of the expression 'cotton fabrics' in the Additional Duties of Excise (Goods of Special Importance) Act, 1957, excludes certain cotton fabrics from its fold and does not define that expression. It has, therefore, to be understood in the ordinary commercial sense. In State of U.P. v. Indian Hume Pipe Co. Ltd. : (1977)2SCC724 the Supreme Court referred, with approval, to its earlier decision in Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola : 1SCR279 , in which while construing the import of the word 'vegetables' observed thus :
'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 a word of every day use it must be construed in its popular sense meaning 'that sense with 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.'
9. In King v. Planters Nut and Chocolate Company Limited (1951) CLR (Ex) 122 the Exchequer Court held that 'the words 'fruit' and 'vegetable' are not defined in the Act and so far as I am aware that are not defined in any other Act in pari materia. They are ordinary words in every day use and are, therefore, to be construed according to their popular sense.'
10. Cotton fabric is generally understood in the commercial world or in popular sense as cotton cloth and not any particular material prepared out of cotton cloth. If, out of cotton fabric, a particular thing is prepared by either cutting or stitching, it is not generally referred to as cotton cloth, but is referred to as the thing or the material that is prepared out of cotton cloth, say, a coat, shirt, pant or a pillow case.
11. Another test that may be applied for determining whether a particular material woven out of cotton is cotton cloth or different goods is whether the particular material is identifiable commercially or a marketable commodity. This test is well-recognised. In Radhika v. State of Orissa  39 STC 93 mill-made cloth was treated as a cotton fabric. But the same mill-made cloth when cut to a particular size and stitched into a particular shape for the purpose of using it for a particular purpose and as a consequence the cotton cloth becomes a different identifiable or marketable commodity, such as a pillow case, it was held to be not mere cotton fabric but a different commodity, pillow case. Once mill-made cloth which is known as cotton fabric is cut into different sizes and stitched and the mill-made cloth thereby acquires a different shape and that thing is intended for a definite use and it becomes a different identifiable commodity. In the common parlance or in the market where it is sold and purchased, it is referred to as pillow case and not as cotton cloth or cotton fabric. When it thus becomes a different identifiable and marketable commodity, it cannot still be treated as cotton fabric and consequently would be taken out of the ambit of item 5 of the Fourth Schedule to the Act. The exemption which is available to cotton fabric would no longer be available to the turnover relating to pillow cases which constitute a different identifiable and marketable commodity.
12. A Division Bench of the Orissa High Court also took a similar view and held :
'Where pillow covers were made by cutting mill-made cloth into different sizes and stitching and making them ready for use in a particular way and the operation was neither incidental nor ancillary to the process of manufacture and there was change of a substantial nature, pillow covers would not be covered by entry 33 of the Schedule of exempted goods (corresponding to item 5 of the Fourth Schedule to the Andhra Pradesh General Sales Tax Act) and sales of pillow covers, therefore, would be liable to sales tax.'
13. Of course, in that judgment a distinction was made between pillow covers and bed-sheets, towels and napkins prepared out of the same mill-made cloth and in relation to them, it was held that by cutting mill-made cloth into different sizes and stitching the border or hemming it, it does not cease to be mill-made cloth. We do not wish to express any opinion on that aspect.
14. Mr. A. V. S. Ramakrishnaiah, the learned counsel for the assessee, however contended that in Government of Andhra Pradesh v. Venkateswarlu  11 STC 561 sarees and dhoties were recognised as cotton fabrics though they are identifiable and marketable commodities different from mere cotton cloth or cotton fabrics and were held exempt from tax. In that case the Andhra Pradesh High Court was concerned with the import of cotton cloth and not cotton fabric. The learned Judges observed that 'the word 'cloth' is of wide connotation embracing dhoties, sarees, etc., that there is no warrant for limiting it to fabrics sold in yards and that a 'cloth' does not cease to be 'cloth' merely because it is used as a dhoti or a saree'. Their Lordships were concerned with dhoties and sarees which were actually manufactured by a mill in the process of weaving and they were not concerned with a case where the cloth was cut to different sizes and stitched into different shapes. It was, therefore, not necessary for the Bench to consider whether a different marketable commodity which came into being as a result of cotton cloth being cut and stitched into different shapes and sizes to be used for a definite purpose, would still be a cotton fabric. That decision does not therefore in any way militate against the view we have taken with respect to pillow cases in which several processes referred to above have to be undertaken to bring into existence a commodity different from a mere cotton fabric or cotton cloth.
15. In Deputy Commissioner (C.T.) v. South India Traders  50 STC 106 the Madras High Court also took the view that handkerchiefs made out of cotton fabric of bigger dimension are entitled to tax exemption under item 4 of the Third Schedule to the Tamil Nadu General Sales Tax Act, 1959.
16. In Commissioner of Sales Tax v. Ashok Elastic Works  28 STC 743 it was held that 'dori' and 'fita', even after the addition of elastic material continued to be cotton fabric. In that case their Lordships were not called upon to consider whether any processes to cutting and stitching were involved. Their Lordships were only required to consider whether mixing of elastic material in the manufacture of dori and fita, would take them out of the category of cotton fabrics, and the court held that even after 'the addition of the elastic material the product could still be called as elastic cotton fabric, but it remained a cotton fabric nevertheless'. That decision was rendered with reference to the specific entry which represented cotton fabrics of all varieties under the exemption notification under the U.P. Sales Tax Act.
17. In State of Gujarat v. Ghanshyam Stores  49 STC 117 B. K. Mehta, J., speaking for the Bench, held that 'the collar-lining could not be said to be an article, though prepared from cotton fabrics, which could be put to immediate use. The mere cutting of the cotton cloth to the required size and shape could not be said to be a process so as to make the end-produce a different article than the cotton fabric'. Their Lordships referred to the definition of the term 'cotton fabrics' in item 19 of the First Schedule to the Central Excises and Salt Act, 1944, which specified referentially in entry 37 of Schedule I to the Act, an inclusive definition, and which had brought in also the fabrics impregnated or coated with other chemical compounds. It is in that view that inter-lining co|lar cuttings and inter-lining double collar cuttings were held to be cotton fabrics and exempted from tax. The inclusive definition of 'cotton fabrics' occurring in the First Schedule to the Central Excises and Salt Act, in our view, does not take in its ambit, an article which is prepared by cutting of cotton fabric to a particular shape and stitching it and is intended to be used and in fact useful only for a particular purpose, that is, as a pillow case. The pillow case is used for covering the pillow. In this decision the test that was applied was whether by applying particular process, a different marketable article is produced and the end-produced so produced has a definite use of its own different from the product from out of which it was prepared; if so it was held to be different goods.
18. In Porritts & Spencer (Asia) Ltd. v. State of Haryana : 1983(13)ELT1607(SC) , the Supreme Court held 'the word 'textiles' in item 30 of Schedule B must be interpreted according to its popular sense, meaning that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it'. Adopting that method, the court held that 'the word 'textiles' has only one meaning, namely, a woven fabrics, and that is the meaning, which it bears in ordinary parlance, and that the method of weaving adopted for producing a particular textile, is of no consequence and it continues to be a textile. What is produced is a textile and with the development of technology, though various processes are adopted for producing textiles, it does not alter the concept of textile'.
19. The principle of this decision, if applied to the case on hand, no one intending to purchase or sell a cotton pillow case, would ever ask for or offer it as a cotton fabric. The pillow case, having regard to its definite shape and being used for a definite purpose, is referred to as such, and there being an identifiable and marketable commodity of sale, it must be held to be falling outside the ambit of 'cotton fabrics'. We are of the view that pillow cases are not cotton fabrics and therefore they are not exempt from tax under item 5 of the Fourth Schedule.
20. Mr. Ramakrishnaiah, the learned counsel for the dealer, next contended that they should at least be treated as cotton garments, and referred to the definition of 'garment' contained in Webster's Dictionary, which is as follows :
'Garment, n. (fr, garment; O. Fr. garniment, from garnir, to garnish, to deck GARNISH) An article of clothing or piece of dress, as a coat, a gown, etc., a vestment.'
21. Garment as ordinarily understood, is no doubt an article intended to cover. But any article intended to cover something else is not referred to as garment. Only that which covers a human body or any part of the body of a human being is referred to as a garment. The decision in Commissioner of Sales Tax v. Ashiq  43 STC 281 would not lend any assistance to his contention for that was a case where cotton fabric was stitched into the shape of a cap and as a cap is used to cover the head of a human being was rightly treated as a garment. A pillow case is not used for the purpose of covering any part of human body, it cannot be held to be a garment.
22. The learned counsel for the assessee also contended that merely because things of a different shape are produced from out of cotton fabrics, though that particular article may be put to a definite use, they do not cease to be a cotton fabric. In this context, he placed reliance on the decision in Shamdas v. State of Andhra Pradesh  19 STC 412 where zarda manufactured out of tobacco, was still held to be tobacco and not taxable. In Surana and Company v. State of A.P.  40 STC 192 sugar-candy prepared out of sugar was still held to be sugar (sic).
23. In Narain Venkat & Co. v. State of A.P.  41 STC 437 it was held that 'what is necessary to make an article 'cotton fabric' is the manufacture of the same wholly or partly from cotton as stated in item 19 of the First Schedule to the Central Excises and Salt Act, 1944. The fact that subsequently such cotton fabrics became rags would not make any difference and such rags would not cease to be cotton fabrics. Therefore, the cotton rags sold by the assessee were exempt from sales tax under item 5 of the Fourth Schedule to the Andhra Pradesh General Sales Tax Act, 1957'. It will be seen that the Bench in Shamdas v. State of Andhra Pradesh  19 STC 412 in arriving at the conclusion that zarda is nothing but tobacco, observed that in common parlance, zarda is nothing but a variety of chewing tobacco. It thus applied the common parlance test. By that test, in common parlance, a pillow case can never be treated as a mere cotton fabric. We, therefore, hold that pillow cases are not cotton fabrics within the meaning of item 5 of the Fourth Schedule and the turnover regarding their sales is not exempt from tax. They are also not cotton garments covered by item 87 of the First Schedule. No exception can therefore be taken to the said turnover being held exigible to tax under section 5(1) of the Andhra Pradesh General Sales Tax Act.
24. In the other two writ petitions, a further contention is raised, that for the respective years 1976-77 and 1977-78, assessments were completed and assessment orders were made and under the said assessment orders, the turnover relating to sales of cotton pillow cases, was held exempt from tax as claimed by the assessee and that now by the impugned notices in the said writ petitions, the respondent, the Commercial Tax Officer, is seeking to revise the assessment in exercise of the powers conferred under the provisions of section 14(4)(cc) of the Act. In this context the contention of the learned counsel for the assessee is that although this amendment was introduced with retrospective effect and section 14(4)(cc) of the Act came into force with effect from 17th January, 1978, that power cannot be exercised with reference to the assessment orders of 1976-77 and 1977-78. According to him, as the turnover related to a period anterior to the date on which the amendment came into force, the revisional power under section 14(4)(cc) cannot be exercised with reference to that period. It must be noticed that the power of appeal or revision or review is exercisable with respect to an order made by an authority. In the instant cases, though the assessment relates to 1976-77, the assessment order itself was made on 18th May, 1978, and in respect of the assessment for 1977-78 the assessment order ws made on 11th September, 1978. Thus both these orders were passed after the amendment came into force and when they were made they could not be treated as final, their finality was not only subject to an appeal or revision but also subject to the provisions of section 14(4)(cc). When these orders were made, if the conditions laid down in section 14(4)(cc) of the Act are satisfied, the competent authority was empowered to issue notices to the assessees calling upon them to show cause why the correct amount of tax payable should not be now assessed by him. In our view, the mere fact that assessment orders related to an assessment year when section 14(4)(cc) of the Act was not in force, it does not preclude the Commercial Tax Officer from exercising his powers thereunder if in fact the assessment order was made on or after 17th January, 1978, when the amendment came into force. The exercise of the power is with reference to the order and not the year to which the turnover relates and the assessment not having become barred by limitation and the finality of the assessment order being subject not only to appeal or revision but also subject to the power under section 14(4)(cc), the Commercial Tax Officer was competent to issue the notices. However, it is necessary that before the Commercial Tax Officer exercises the power conferred on him under section 14(4)(cc) it must be found that the correct amount of tax payable was not assessed as a result of the exemption having been wrongly allowed. Whether the exemption was rightly or wrongly allowed has to be decided on the facts of each case. In the instant cases, it depends upon the view taken by the Commercial Tax Officer as to whether pillow cases fall within the ambit of cotton fabrics. Having considered every aspect of the matter, he has held that pillow cases are cotton fabrics. It may be an erroneous view of the matter. But when once that view was taken, the assessee was entitled to exemption and the grant of exemption cannot be said to have been made wrongly by the assessing authority. The Commercial Tax Officer by changing his opinion with regard to the nature of articles, cannot now hold that the exemption was wrongly granted. A mere change of opinion cannot be the basis for exercising the power vested under section 14(4)(cc). When all the facts were before the Commercial Tax Officer and upon consideration of all the facts, he had come to the conclusion that pillow cases are cotton fabrics, it cannot be said that the exemption was wrongly granted. There was no basis for exercising the powers vested in him under clause (cc) of sub-section (4) of section 14 of the Act.
25. In Arvind Boards & Paper Products Ltd. v. M. T. Keshruwala : 124ITR626(Guj) the High Court of Gujarat held that when all the material facts were before the assessing authority at the time when he made the original assessment order, a mere change of opinion with regard to an inference, cannot form the basis for exercising the power to reassess the income returned. If a mere change of opinion could be the basis for holding that an exemption or deduction was wrongly allowed, then there could be no finality to any assessment. Even the present order that is made would be liable for review or revision under section 14(4)(cc) of the Act, if at a later date and within the period of limitation, the assessing authority were to change its opinion once again. That could never be the intention of the legislature in introducing section 14(4)(cc). That provision applies to a situation where on a finding of fact arrived at with reference to the goods in question, the assessing authority has come to a particular conclusion as to whether it falls under one or the other items of the various schedules, but in granting exemption, has committed some mistake or error, it is only that 'wrongful' exemption that could be rectified under section 14(4)(cc) of the Act. A change of opinion with regard to the nature of the goods itself, cannot form the basis for the exercise of the power under that provision. In this view of the matter, while we hold that the power under section 14(4)(cc) of the Act, could be exercise with reference to any order of assessment made on or after 17th January, 1978,inasmuch as the conditions precedent for the exercise of the power are not existing in the instant cases, the show cause notices issued by the respondent, cannot be sustained and they are accordingly quashed.
26. W.P. Nos. 5732 and 5374 of 1979 are accordingly allowed with costs. Advocate's fee Rs. 150 in each.
27. So far as the other two writ petitions - W.P. Nos. 6666 and 6673 of 1982 are concerned, for the reasons stated above we hold that the turnover relating to the sale of pillow cases is not exempt from tax under item 5 of the Fourth Schedule and is not covered by item 87 of the First Schedule. The writ petitions are accordingly dismissed with costs. Advocate's fee Rs. 150 in each.