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British India Corporation Ltd. Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberS.T.R. No. 520 of 1979
Judge
Reported in[1982]49STC47(All)
AppellantBritish India Corporation Ltd.
RespondentCommissioner of Sales Tax
DispositionRevision allowed
Cases ReferredCommissioner of Sales Tax v. Verma Hosiery
Excerpt:
..... - the hosiery department today includes jerseys, knickers, bathing costumes, coats, sports-wear combinations, pants, vests, gloves, waist- coats, sports-wear as well as socks and stockings. verma hosiery 1972 uptc 258 and it was held that as mufflers and topas satisfied both tests they were hosiery. 11. the question is whether hosiery under the sales tax act should be understood in wider sense of being, applicable to knitted goods of all kinds as held by the rajasthan high court or it should be confined to underclothing, socks and stocking only as' held by this court in ram lal's case 1969 law diary 41. this necessitates an examination of notifications issued from time to time as in such circumstances the legislature's intent discerned from these notifications can be the best guide...........and readymade garments made of woollen cloth.in 1969 hosiery was excluded altogether from woollen goods. notification no. 3613 dated 1st july, 1969, read as under :in exercise of the powers under section 3-a...the governor is pleased to make, with effect from 1st july, 1969, the following amendment in the schedule to-notification no. st-1365 dated 1st april, 1960.woollen goods excluding carpets and hosiery, but including knitting wool and readymade garments made out of woollen cloth.the same entry continued in notification no. 332 dated 15th november, 1971, except for change of rate. another notification no. 334 was issued on same day and entry in respect of hosiery read as under:hosiery of all kinds other than that made of pure cotton.15. it shall be seen that from 1948 to 1961 woollen.....
Judgment:

R.M. Sahai, J.

1. In this revision filed under Section 11 of the Sales Tax Act, the following questions of law have been raised :

(a) Whether, in the facts and circumstances of the case, the assessee is a dealer in respect of the canteen sales made by it during the year 1973-74 amounting to Rs. 26,647.52 and as such these are taxable in its hands ?

(b) Whether, in the facts and circumstances of the case, the sale of cardigans and pullovers by the assessee during the period 1973-74 amounting to Rs. 20,14,654.48 is taxable in the hands of the assessee as sale at 3 per cent or as sale of woollen goods at 6 per cent ?

2. The assessee, Cawnpore Woollen Mills Branch, Kanpur, one of the branches of British India Corporation, manufactures woollen goods and yarn, etc., woollen cardigans and pullovers. It also maintains a canteen as a measure of labour welfare activity under Section 46 of the Factories Act, 1948, read with Rule 68 of the U.P. Factories Rules. It has been held by the Additional Judge (Revisions) that canteen sales are sales within the meaning of the Sales Tax Act and the assessee was a dealer liable to pay tax. Reliance for this proposition was placed on Swadeshi Cotton Mills Co. Ltd. v. Sales Tax Officer [1964] 15 STC 505. In respect of cardigans and sweaters it was held that they were taxable at 6 per cent as held in Ram Lal and Bros. v. Commissioner of Sales Tax 1969 Law Diary 41.

3. Both these findings have been challenged. So far as canteen sales are concerned suffice it to say that in Fertilizer Corporation of India Ltd. v. Commissioner of Sales Tax 1980 UPTC 1 (FB), a Full Bench of this Court has overruled Swadeshi Cotton Mills [1964] 15 STC 505 and has held that such sales are exempt from payment of tax and the assessee cannot be considered to be a dealer.

4. As regards cardigans and sweaters the learned counsel urged that they were taxable as hosiery under Notification No. ST-334 dated 15th November, 1971. He pleaded for reconsideration of Ram Lai's decision 1969 Law Diary 41 on the strength of the dictionary meaning of hosiery. It was also urged that woollen hosiery was included in woollen goods by Notification No. 1281-A dated 1st October, 1961. This indicated that one was not part of the other and but for inclusion it would not have been taxable as woollen goods. The learned counsel pleaded for adopting test of manufacture to decide whether sweaters and cardigans were hosiery or not instead of 'worn next to skin' as laid down in Ram Lai's case 1969 Law Diary 41. It was urged that in Porritts and Spencer v. State of Haryana AIR 1979 SC 300, the Supreme Court while reiterating the principle that entries in sales tax should be understood in popular parlance yet held dryer felt to be exempt being textile applying the test of manufacture. According to the learned counsel sweaters and cardigans are manufactured by knitting and as knitted goods are considered to be hosiery they should be held to be taxable as hosiery.

5. In Webster's Third New International Dictionary 'hosiery' has been defined:

Hose which in its turn has been defined as cloth leg covering that reaches down to the ankle and sometimes covers the foot: stockings, socks. In Britain it is applied to additional knitwear.

6. 'Mercury Dictionary of Textile Terms' published by Textiles Mercury Limited, Manchester, describe hosiery thus:

(Hosiery Nonneterrie, French).--Hose originally denoted a pair of close fitting breaches reaching to the knee. The application of the term to garments covering the legs below the knee was later when power driven machinery created a great trade in knitted goods and a general term being desired, the word 'hosiery' was adopted. The hosiery department today includes jerseys, knickers, bathing costumes, coats, sports-wear combinations, pants, vests, gloves, waist- ., coats, sports-wear as well as socks and stockings. The term 'knitted texture' is more descriptive.

In Encyclopaedia Britannica the history of hosiery has been traced and it is pointed out that:

Hosiery is covering for the feet and legs designed to be worn inside the shoes and other outer foot coverings.

Then it is pointed out:

that the term is so understood in most countries particularly United States of America, but in Great Britain it is taken to include machine-knitted garments of all types (vide page 740, Vol. II).

The New Universal Encyclopaedia, Vol. 5, defines 'hosiery' as under :

Knitted goods of all kinds.... In addition to hose, knitted coats, sweaters, jerseys, gloves, necktie, caps, shawls and waist coats....

7. According to the dictionary the meaning of the word 'hosiery', therefore, is quite extensive. It applies as much to upperclothing as to underclothing. The basic characteristic however is that it should be knitted.

8. In Ram Lal's case 1969 Law Diary 41 this Court accepted the test of 'worn next to skin' mainly because of the Hindi version of Notification No. ST-905 dated 31st March, 1956. It was held :

The admitted case of the parties is that whereas the reduced rate for woollen hosiery is one paisa per rupee, for the woollen goods, it is one anna per rupee. In the Hindi notification, entry No. 17 reads: (sabhi prakar ke moje va baniyain addi).

9. The question requiring consideration is whether woollen pullovers and woollen cardigans would fall in the category of woollen goods or in the category of hosiery. The word 'hosiery' has been given the following meaning in Shorter Oxford English Dictionary :

Hose collectively, extended to the whole class of goods in which a hosier deals, the business of hosier and factory where hose is woven.

The meaning given to the word 'hosiery' in the same dictionary is, one who makes or deals in hose (stocking and socks) and underclothing generally. It is therefore indicated that hosiery means underwear or underclothing or socks, etc. The words 'moje va baniyain addi' in the notification show that what is covered by entry No. 17 are articles of the nature of underwear or those next to skin. A cardigan is used almost as a coat and so is a pullover. They are not used next to skin. In common parlance and in business terminology cardigans and pullovers are treated as woollen goods and not as hosiery. Their essential nature is different from underwear, socks, banian, etc., and they conform more to entry No. 46 where the Hindi words used are :

Uni saman jiske antargat kalinen nahi hain lekin bunne ka oonhai.

In our opinion, therefore, the pullovers and the cardigans should be treated as woollen goods and not as a woollen hosiery. If knitting wool is considered to be woollen goods and not an article, i. e., cardigans or pullovers would not more appropriately fall under entry No. 46 as woollen goods rather than as hosiery under entry No. 17.

10. The Rajasthan High Court on the other hand in Jaipur Hosiery Mills v. State of Rajasthan [1967] 19 STC 416 held that hosiery means machine knitted garments. The question again arose before this Court in Commissioner of Sales Tax v. Verma Hosiery 1972 UPTC 258 and it was held that as mufflers and topas satisfied both tests they were hosiery.

11. The question is whether hosiery under the Sales Tax Act should be understood in wider sense of being, applicable to knitted goods of all kinds as held by the Rajasthan High Court or it should be confined to underclothing, socks and stocking only as' held by this Court in Ram Lal's case 1969 Law Diary 41. This necessitates an examination of notifications issued from time to time as in such circumstances the legislature's intent discerned from these notifications can be the best guide.

12. The first Notification No. 117 was issued on 8th June, 1948, under Section 3-A and entries 3 and 4 read as under :

3. Woollen goods and knitting wool.

4. Hosiery of all kinds.

In Hindi the entry read as under :

3. Uooni mal aur hath se bunney ka uoon.

4. Sab prakar ke hosiery.

13. In 1956 the Hindi notification of hosiery in ST-905 dated 1st April, 1956, read:

Sabhi prakar ke mose, baniyain, hosiery, aadi.

The entry in respect of hosiery continued except for change of rate and point of tax till 1961 when by Notification No. 1281 dated 1st October, 1961, the entry was substituted and it read in English and Hindi as under:

Hosiery of all kinds other than woollen hosiery.

Upyukt vigyapat mey shabd 'yeoparyon' tatha 'shabd sabhi prakar' ke beech mey shabd 'uooni chizon se baney' rakh diya jay.

By Notification No. 1281-A issued on the same date woollen hosiery was included in woollen goods. The entry read :

Woollen goods excluding carpets but including knitting wool, woollen hosiery and readymade garments made out of woollen cloth.

In 1962 Notification No. 1973 dated 30th June, 1959, modified by ST-1281 dated 1st October, 1961, was superseded by Notification No. 4562 dated 1st October, 1962, and it was provided that turnover in respect of hosiery made of pure cotton or silk shall be taxable at one naya paisa per rupee at all points of sale.

14. Notification No. 1281-A was modified by ST-4562 dated 1st October, 1962, as under:

Woollen goods excluding carpets and hosiery other than pure woollen hosiery, but including knitting wool and readymade garments made of woollen cloth.

In 1969 hosiery was excluded altogether from woollen goods. Notification No. 3613 dated 1st July, 1969, read as under :

In exercise of the powers under Section 3-A...the Governor is pleased to make, with effect from 1st July, 1969, the following amendment in the schedule to-Notification No. ST-1365 dated 1st April, 1960.

Woollen goods excluding carpets and hosiery, but including knitting wool and readymade garments made out of woollen cloth.

The same entry continued in Notification No. 332 dated 15th November, 1971, except for change of rate. Another Notification No. 334 was issued on same day and entry in respect of hosiery read as under:

Hosiery of all kinds other than that made of pure cotton.

15. It shall be seen that from 1948 to 1961 woollen hosiery was taxable as 'hosiery of all kinds', but from 1961, it became taxable as woollen goods for a brief period as from 1962 it was again excluded except pure woollen hosiery and that also was taken out in 1969 and all woollen hosiery became taxable once again as hosiery of all kinds.

16. One of the outstanding features that stands out clearly from these notifications is that hosiery has been treated from the very beginning as separate item for taxability. And it has not been deemed to be included in the general entry of woollen goods. It is true that inclusion or exclusion of an item is not decisive whether the article which is included is part of it or its inclusion is by way of abundant caution yet from the entire pattern it appears reasonable to infer that woollen hosiery has not been treated as part of woollen goods. The question then is what meaning should be ascribed to the word 'hosiery', the narrow or limited sense in which it was understood in Ram Lal's case 1969 Law Diary 41 or the broader and wider meaning extending to all knitted apparels as was given to it by the Rajasthan High Court. For this also it may be useful to look to the notifications quoted earlier. It shall be seen that in the notification issued in 1948 the word 'hosiery' was used both in Hindi and English notifications. This indicates that the intention was to cover in the word 'hosiery' all that which was included in it. In 1956 no doubt the words 'socks and banian' had been used yet the word 'hosiery' had also been mentioned. From 1961 onwards even the notification issued in Hindi used the word 'hosiery'. In Ram Lal's case 1969 Law Diary 41, the Bench while quoting the Hindi notification omitted to consider that along with the words 'baniyain, mose' the word 'hosiery' was also mentioned. In any case in subsequent notification the words '..baniyain' and 'mose' having been dropped and the word 'hosiery' having been used as was done in 1948, it was clear indication of extending the entry and granting benefit of lower rate of tax to those goods which could be considered to be hosiery or knitted garments. In this light, the controversy becomes quite simple as the word 'hosiery' used in various notifications for purposes of taxability has to be understood in the wider sense in which it applies to all knitted articles instead of confining it to underclothing. On this view, sweaters, cardigans and pullovers which are manufactured by knitting are covered in the entry 'hosiery'. Even in Verma Hosiery 1972 UPTC 258, the Bench was inclined to accept the recent and extended meaning of hosiery in the sense of knitted goods but as the items for consideration were mufflers and topas which were both knitted and, worn next to skin, it did not go into the question. As the notification which came up for consideration in Ram Lal's case 1969 Law Diary 41 was different than that with which the present revision is concerned it is not necessary to refer this case to a larger Bench.

17. For reasons stated above this revision succeeds and is allowed. The question of law raised by the assessee is decided as under:

(i) that canteen sales were not taxable as the assessee was not a dealer.

(ii) that cardigans and sweaters were not taxable as woollen goods but hosiery.

The assessee shall be entitled to its costs which is assessed at Rs. 300. The fee of the standing counsel is assessed at Rs. 100.


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