Shiv Dayal, J.
1. This is a reference Under Section 44 of the M.P. General Sales Tax Act, 1958 (hereinafter called the Act), at the instance of the Commissioner of Sales Tax, M. P. The questions referred for our decision are:-
(1) Whether hessian cloth is 'cloth' and is covered by entry No. 6 of Schedule I of the Madhya Pradesh General Sales Tax Act, 1958?
(2) Whether the penalty of Rs. 1,500 in the assessment under the State law and Rs. 500 in the assessment under the Central law for non-submission of returns was properly and legally imposed ?
2. M/s. New Bhopal Textile Ltd., Bhopal (hereinafter referred to as the assessee) is a registered dealer engaged in the business of manufacture and sale of textiles. For the period 1st April, 1963, to 31st March, 1964, the gross turnover of the assessee was determined at Rs. 1,33,90,060.95 and the taxable turnover at Rs. 14,54,985.35. According to the assessment order of the Assistant Commissioner, Sales Tax, Bhopal, the total value of hessian sold was Rs. 60,000. By his assessment order under Section 19(4) of the Act, he assessed sale at Rs. 15,000 and imposed a sales tax of Rs. 7,105.58 and also Under Section 8(1) of the Central Sales Tax Act, he assessed sale at Rs. 45,000 and imposed sales tax of Rs. 17,593.27. He further imposed a penalty of Rs. 1,500 under the State law and Rs. 500 under the Central law.
3. The assessee preferred two appeals, one under the State law and the other under the Central law. Both the appeals were dismissed by the Deputy Commissioner of Sales Tax, Indore.
4. The assessee then preferred two second appeals respectively and contended inter alia that hessian is a variety of cloth exempt from tax by entry No. 6 of Schedule I to the Act. This contention found favour with the Board of Revenue, Madhya Pradesh.
5. This order shall also govern Miscellaneous Civil Case No. 13 of 1968.
6. Schedule I to the Act enumerates Articles, which, Under Section 10(1) of the Act, are exempt from tax. Entry No. 6 is in these words:
6. All varieties of cloth manufactured in mills or on powerlooms or handlooms including processed cloth but excluding pure silk cloth.
The question is whether hessian is cloth. The word 'cloth' as used in that entry has not been defined in the Act. It is, therefore, not a term of art and must be understood in the sense which it has in common parlance and in its popular meaning as understood by people who deal in sale and purchase of cloth.
7. In its ordinary acceptation, 'cloth' means a fabric distinguished by a simple weave in which the warp and weft threads pass over and under each other alternately. The term ' cloth' is not restricted to fabric used for garments. According to Oxford English Dictionary, it means a piece of pliable woven or felted stuff, suitable for wrapping or winding round, spreading or folding over, drying, wiping or other purpose ; a swaddling or winding cloth, wrap, covering, veil, curtain, handkerchief, towel, etc. In the Webster, New 20th Century Dictionary, it bears the following meaning :
A woven knitted or pressed fabric of fibrous material, as wool, hair, cotton, flex, hemp, synthetic fibres etc., used for garments or other covering and for various other purposes, as household furnishings....
In Webster's New International Dictionary, Second Edition (1959), 'cloth' is stated to mean :
A pliable fabric woven, felted, or knitted from any filament, commonly fabric of woven cotton, woollen, silk, rayon, or linen fabric, used for garments etc.
8. Now, it is well known that hessian cloth is made by the same process as cotton cloth. In the latter case, it is cotton which is used as raw material for weaving. The warp and weft threads pass over and under each other alternately. So also in the case of rayon cloth and so also in the case of hessian cloth.
9. According to Webster's New International Dictionary (Second Edition 1959), hessian means, inter alia, 'a coarse sacking of hemp or hemp and jute.' And, according to Shorter Oxford English Dictionary (1959), it means 'a strong coarse cloth, used for packing bales.
10. Thus structurally hessian cloth is 'cloth' although it is coarse and seldom used for garments. However, it is well known that like canvas it is used for curtains, for spreading over the floor and for other household furnishings.
11. Just as a cotton or woollen fabric is made of cotton fibre or woollen fibre, so also hessian cloth is made of jute or hemp fibre. Since the entry is comprehensive enough to include 'all varieties of cloth', there is no warrant for excluding hessian cloth from that entry.
12. Hessian cloth is a commodity of very common use. If the Legislature had not intended to include it in the expression 'all varieties of cloth', there was bound to be a specific entry for it, either in the First Schedule or in the Second Schedule. But that is not so. This lends support to the view we take.
13. Then, again, it may be noted that just as cotton, cotton yarn, cotton yarn waste or cotton waste are mentioned in the Second Schedule, Part I, so also jute has a separate entry in that Schedule, but there is no entry of hessian cloth, although there is entry No. 20 which makes ' pure silk fabrics and Articles made thereof' chargeable to sales tax. It appears that by an amendment in 1967, the entry pertaining to pure silk fabrics and Articles made of pure silk has been deleted.
14. Shri R.S. Dabir, learned counsel for the Sales Tax Commissioner, relied on the Additional Duties of Excise (Goods of Special Importance) Act, No. 58 of 1957, under which additional excise duty was imposed on cotton fabrics, rayon or artificial silk fabrics and woollen fabrics. It was argued that the proceeds of the additional excise duty are distributed among the States on the principles enunciated by the Finance Commission, It was this historical background for which cotton, rayon and woollen cloth was exempted from sales tax under entry No. 6 of the First Schedule and since hessian cloth is not chargeable to additional excise duty, it cannot be said to be exempted from sales tax. Learned counsel appearing for the assessee, meets this argument by pointing out that the Sales Tax Act exempted cloth even before the last mentioned Act of 1957 was enacted. It is difficult to accept the contention raised for the department before us for the first time. There is no indication in Section 10 of the Act or in Schedule I thereto that all goods chargeable to additional excise duty under the Central Act will be exempt from sales tax.
15. In support of the case for the department, Shri R.S. Dabir then relied on a notification published in the M. P. Gazette dated 4th January, 1963 (Part I, page 43), whereby in exercise of the powers conferred by Section 12 of the M. P. General Sales Tax Act, 1958, the State Government exempted 'gunny bags including hessian' from sales tax for the period from 4th January, 1963, to 31st March, 1964, subject to the following restrictions and conditions :
When sold by a dealer registered under the Madhya Pradesh General Sales Tax Act, 1958, on his furnishing of a true declaration in the appended form that the goods in respect of which exemption is claimed have neither been imported nor manufactured by him.
The argument is that if hessian cloth had been exempted under entry No. 6, there was no need for this notification and that it was by virtue of this notification alone that the assessee could claim exemption from sales tax. That could be done only when the restrictions and conditions stated in the notification were satisfied. In the present case, those conditions were not satisfied. In answer to this argument, learned counsel for the assessee lays stress on the word 'hessian'. His argument is that 'hessian' must be distinguished from 'hessian cloth'. Learned counsel reads 'hessian' to mean a string of hessian (sutli) so that not only gunny bags (bora) were exempted for that particular period but also the jute or hemp string.' 'Having regard to all the entries in the Schedules to the Act and the common use of the expression 'hessian cloth', which expression also occurs in their Lordships' decision in Union of India v. Commercial Tax Officer A.I.R. 1956 S.C. 202, we think that Shri V. S. Dabir is right. Hessian simpliciter is not the same thing as 'hessian cloth'. It is remarkable that the department must be presumed to be aware of this notification, yet, it was not relied on either before the Board of Revenue or in the application for reference Under Section 44 of the Act.
16. As a result of the above discussion, we answer the first question in the affirmative and, as a necessary consequence, the second question in the negative.