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iswardas Dwarkadas Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case NumberSpecial Jurisdiction Case No. 122 of 1977
Judge
Reported in[1982]50STC154(Orissa)
Appellantiswardas Dwarkadas
RespondentState of Orissa
Appellant AdvocateB. Agarwalla, Adv.
Respondent AdvocateStanding Counsel (S.T.)
Cases ReferredState of Orissa v. Modi Stores
Excerpt:
.....us we are satisfied that the term 'carpet' in the notification in question has not been used to include all varieties of material which is used for covering floors and stairs. 4. it is a proposition of law beyond dispute now that the words like 'carpets' and 'satranji' have to be understood in. one would be a rich man's place of visit where carpets would be available and the other would be a miscellaneous store which would handle sale of sattanjis.r.n. misra, c.j.1. the member, additional sales tax tribunal, orissa, has referred this case and the following two questions have been sent for opinion of the court at the instance of the assessee :(1) whether, on the facts and in the circumstances of the case, the articles, namely, satranjis, asanis and durees, which are woven out of coloured cotton yarn are cotton fabrics or carpets ?(2) whether, on the facts and in the circumstances of the case, satranjis and durees which are woven out of coloured yarn are cotton fabrics and are to be treated as tax-free list as per entry serial nos. 19 and 33 of the tax-free list or are to be taxed under entry serial no. 25 of the luxury list ?2. the assessee is a dealer in mill-made and handloom cloth, hosiery goods, satranjis, etc. in the course of.....
Judgment:

R.N. Misra, C.J.

1. The Member, Additional Sales Tax Tribunal, Orissa, has referred this case and the following two questions have been sent for opinion of the court at the instance of the assessee :

(1) Whether, on the facts and in the circumstances of the case, the articles, namely, satranjis, asanis and durees, which are woven out of coloured cotton yarn are cotton fabrics or carpets ?

(2) Whether, on the facts and in the circumstances of the case, satranjis and durees which are woven out of coloured yarn are cotton fabrics and are to be treated as tax-free list as per entry serial Nos. 19 and 33 of the tax-free list or are to be taxed under entry serial No. 25 of the luxury list ?

2. The assessee is a dealer in mill-made and handloom cloth, hosiery goods, satranjis, etc. In the course of assessment, a question arose as to whether satranji would be tax-free article or being carpet would be taxed as luxury goods. The Member, Additional Sales Tax Tribunal, ultimately in second appeal by the assessee, came to hold that satranji, asani and duree were all cotton fabrics and did not belong to the category of carpet as denned in entry serial No. 25. Yet, he felt bound by a Bench decision of this Court in the case of State of Orissa v. Modi Stores, Cuttack [1969] 24 STC 255 and observed:

But as I am bound by the decision of the Orissa High Court, I am unable to accept the interpretation raised, on behalf of the appellant and hold that the articles dealt in by the appellant as per his account and as per payments made by him should be taxed at 12 per cent as per entry serial No. 25 of the luxury list and....

The correctness of the Bench decision of this Court relied upon by the Member, Additional Sales Tax Tribunal, falls to be considered. In paragraph 5, the learned Chief Justice at page 257 of the Reports observed:.The question referred to this Court assumes that satranjis are carpets.

In fact, the Tribunal has given a distinct finding that satranjis are carpets. That is a pure question of fact and on that point there is no reference to this Court....

These preliminary observations having been made, it followed that the question as to whether the material in issue was carpet or not was not open to be dealt with and that aspect had been taken as final being a question of fact as found by the Tribunal. Though the decision started with these preliminary observations, the matter was again discussed subsequently and reference was made to a Gujarat case and to the bhashakosh for finding support for the factual question already determined by the Tribunal in a conclusive way as to whether satranjis were carpets.

3. The petitioner's counsel placed before us a Bench decision of the Allahabad High Court in the case of Commissioner, Sales Tax v. Asha Handloom [1972] 29 STC 554, where the question that came for consideration was whether satranji, duree and the like would be classified as carpets. At page 557 of the reported decision, the Allahabad High Court stated :

On behalf of the department a reference was made to Vrajlal Bhukhandas v. State of Gujarat [1964] 15 STC 437. The question before the Gujarat High Court was as to whether satranji fell within the classification of handloom cloth of all varieties. It was held in that case that although satranji was woven on handloom out of cotton yarn, yet it could not be regarded to be 'handloom cloth' because in the popular meaning satranji was a cotton carpet, even though technically it could be said to be handloom cloth. In State of Orissa v. Modi Stores, Cuttack [1969] 24 STC 255, the Orissa High Court held 'satranji' to be a carpet for the purpose of sales tax of that State. However, that case can be distinguished, because the learned Chief Justice Misra, who delivered the judgment, gave a specific finding that in Orissa, the term 'carpet' was understood to include 'satranji'. In that case also it was emphasised that a particular word used in the Sales Tax Act must be given its popular meaning. We have already pointed out that so far as the U. P. Sales Tax Act is concerned, the word 'carpet' is confined to a woollen fabric manufactured by the process of weaving and knotting. In this State there is no such thing as a cotton carpet. On the material before us we are satisfied that the term 'carpet' in the notification in question has not been used to include all varieties of material which is used for covering floors and stairs.

4. It is a proposition of law beyond dispute now that the words like 'carpets' and 'satranji' have to be understood in. their popular sense or their commercial sense unless there be a statutory definition. In the popular sense, as indicated in the New Oxford Illustrated Dictionary, 'carpet' would mean :

Thick fabric for spreading on floor or stair, commonly of wool, frequently patterned in colours, and made by knotting short lengths of yarn on to the warp threads of a fabric during weaving, or by same means as tapestry, or by various mechanical weaving processes;....

Webster's Third New International Dictionary gives the following meaning of carpet:

A heavy woven or felted fabric usually made of wool....

In the commercial sense, we are inclined to think that a distinction is maintained between carpet and satranji. One who goes to the market asking for a satranji cannot afford to buy a carpet and one who goes for a carpet does not entertain the supply of a satranji in answer to his requisition. Ordinarily, in a developed commercial centre the shops which deal in these commodities would be different. One would be a rich man's place of visit where carpets would be available and the other would be a miscellaneous store which would handle sale of sattanjis. We agree with the submission of the learned standing counsel that a carpet need not necessarily be made of wool. Strictly speaking, the manufacturing process of satranji and carpet is different. Ordinarily, a satranji would not be woven in small places and then joined up though a carpet would be woven in portions and they are joined up later. We are, therefore, of the view that in the common parlance theory or as commercially understood, the two are not the same Article1-one going for the other.

5. The next question is, 'Are we really bound by the precedent?' As we have pointed out, in the reported decision the Tribunal had already found that the commodity in question there was carpet whereas there is absolutely a contrary finding before us. But for the reported decision, the Tribunal, as indicated in the case before us, would have accepted the assessee's stand. As we have already pointed out, the learned Chief Justice in paragraph 5 of the reported decision indicated that that satranji was carpet was a finding of fact not open to dispute.

The matter which has been referred to us is the dispute itself as to whether satranji is carpet. Therefore, we are of the view that the decision in State of Orissa v. Modi Stores [1969] 24 STC 255 is not a precedent which would not permit this Division Bench to take a different view. We are, therefore, of the view that nothing has been said in State of Orissa v. Modi Stores [1969] 24 STC 255 which would preclude us from expressing the view we now adopt.

6. On the analysis indicated, we come to the conclusion that satranji is not carpet nor are asani and duree carpets so as to invoke taxability at the rate prescribed for luxury articles. On the other hand, they would be tax-free articles being covered by the other entry referred to by the Tribunal. The questions therefore are answered in favour of the assessee and against the revenue. But since there was a precedent on which the Additional Sales Tax Tribunal had relied upon, we think it appropriate to leave the parties to bear their own costs.

B.K. Behera, J.

7. I agree.


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