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Porritts and Spencer (Asia) Ltd. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1484 of 1979
Judge
Reported in17(1980)DLT539a; 1980CENCUS489D; 1980(6)ELT679(Del); ILR1980Delhi1173
ActsCentral Excise Act, 1944
AppellantPorritts and Spencer (Asia) Ltd.
RespondentUnion of India and ors.
Advocates: A.K. Sen,; A.R. Lal,; P.N. Sewak and;
Cases ReferredPorritts and Spencer (Asia) Ltd. v. State of Haryana
Excerpt:
.....the present writ petition, the petitioner sought the relief of declaration that the paper maker's felts manufactured by it did not fall within the meaning of fabrics under item 19 an 20 dismissing the writ petition,; 1. the ratio of the decision of the supreme court in the gujarat woollen felt mills case is that all non woven material are not fabrics. the supreme court regarded woven material as fabric. the supreme court held that the word 'textile' in item 30 ought to be interpreted to mean any woven fabric. it was further observed that the use to which a product is put does not determine its character at all. `dryer felts' are textiles within the meaning of the expression in item 30 of schedule b. the supreme court has regarded the felts of the kind manufactured by the petitioner as..........deputy collector, central excise, chandigarh- (4) the history of assessment with regard to woollen felts manufactured by the petitioner is also somewhat similar. the petitioner sought and obtained approval in form no. 1 in respect of the woollen felts on the basis that it fell under tariff item 21(l)(b). according to the petitioner this form was filed by it and the approval obtained under a misapprehension of the correct legal position. (5) it appears that the petitioner came to know about a decision of the gujarat high court delivered in gujarat woollen felt mills v. union of india in which it was held that woollen felts could not be classified as woollen fabrics under item 21 of the first schedule to the excise act. applying the said reasoning, in respect of the cotton dryer felts, the.....
Judgment:

B.N. Kirpal, J.

(1) The question which arises for consideration in this writ petition is as to whether paper maker's felts (woollen and cotton) which is manufactured by the petitioner can be regarded as cotton fabrics of woollen fabrics under Entry No. 19 and 21 respectively in the First Schedule of the Central Excises and Salt Act, 1944.

(2) The petitioner in the year 1970 set-up a plant for the manufacture of paper maker's felts, both cotton and woollen. It is an admitted case that these felts are manufactured by the petitioner by the process of weaving of cotton and synthetic yam, in the case of manufactured of cotton dryer felts; and by weaving wool fibre or wool fibre mixed with varying percentage of synthetic fibre in the case of the manufacture of woollen felts. According to the petitioner these felts which are manufactured by it are used only for industrial purposes.

(3) With regard to cotton felts the petitioner on or about 17th November, 1970 made an application to the Superintendent, Central Excise, Faridabad for the grant of license to manufacture the said paper maker's cotton dryer felts. It is stated that on' the advice received that the said item fell under the description of 'mattress fabrics' and was classified under Tariff Item 19 (1) of the Excise Act, the petitioner completed form No. 1 (Classification List of Exciseable Goods Produced or Manufactured and Intended to be removed by the assessed) prescribed under the Excise Rules. This was submitted for approval and on 31st March, 1971 approval, until further orders, was granted by the Excise Authorities, Faridabad. Subsequently on 6th April, 1971 the petitioner submitted a revised form No. 1 on the basis that the said cotton dryer felts should in fact be classified under Tariff item No. 19(l)(2)f), i.e., 'cotton fabrics not otherwise specified'. This form was not approved because according to the Superintendent the said goods fell within Tariff item 19(I)(1). Against the said communication dated 12th April, 1971 the petitioner wrote a letter dated 19th April, 1971 to the Superintendent Central Excise Faridabad. In the said letter it was stated that the petitioner wanted to prefer an appeal to the Deputy Collector, Central Excise. Chandigarh and in the meantime the clearance may be. allowed on the basis that it felt under Tariff item No. 19 (1) (2) (f). This request was ultimately agreed to and the petitioner was permitted to pay excise duty under Tariff item No. 19 (1) (2) (f) upon its furnishing security. Against the original order the petitioner filed an appeal to the Deputy Collector, Central Excise, Chandigarh-

(4) The history of assessment with regard to woollen felts manufactured by the petitioner is also somewhat similar. The petitioner sought and obtained approval in form No. 1 in respect of the woollen felts on the basis that it fell under Tariff item 21(l)(b). According to the petitioner this form was filed by it and the approval obtained under a misapprehension of the correct legal position.

(5) It appears that the petitioner came to know about a decision of the Gujarat High Court delivered in Gujarat Woollen Felt Mills v. Union of India in which it was held that woollen felts could not be classified as woollen fabrics under item 21 of the First Schedule to the Excise Act. Applying the said reasoning, in respect of the cotton dryer felts, the petitioner on 9th November. 1971 made an application to the Deputy Collector, Central Excise, Chandigarh, before whom the appeal filed by the petitioner was pending, praying that the petitioner may be permitted to raise an additional ground so as to enable it to contend that the said cotton felts could not be subjected to excise duty under Item 19 at all. No reply was received to the said communication and it appears that the petitioner filed a writ petition in the High Court of Punjab & Haryana at Chandigarh under Article 226 of the Constitution praying for various reliefs. The appeal which was pending before the Deputy Collector, Central Excise Chandigarh was transferred to the Appellate Collector. During the pendency of the aforesaid writ petition the Appellate Collector by an order dated 5th May, 1972 remanded the case back to the Assistant Collector, Central Excise, Faridabad for issuing revised orders after instituting necessary enquiries with regard to the correctness of the classification of goods. On remand the Assistant Collector made some enquiries and by the letter dated 1st November, 1972 he sent the petitioner copies of the information which he had collected from the Indian Standards Institute and the reports of the Chemical Examiner. As per the said documents the felts manufactured were to be regarded as fabrics. The petitioner appeared belore the Assistant Collector on 4th November, 1972 and submitted three affidavits purported to be of persons in fabric trade, and two affidavits of persons concerned with manufacture and sale of paper maker's felts and one other certificate from a person connected with the fabric trade. The contention of the petitioner, based on the aforesaid affidavits and documents, which it had filed, was that the felts manufactured by it were not a fabric as contemplated by the said Tariff items 19 and 21. The contention of the petitioner was, however, not accepted and by order dated 2nd December, 1972 the Assistant Collector held that the cotton and woollen fabarics manufactured by the petitioner fell within the purview of Tariff items 19 and 21 respectively.

(6) Against the aforesaid order the petitioner filed an appeal to the Appellate Collector, Central Excise, New Delhi. The said appeal was rejected by an order dated 1st May, 1975 and against the said order a revision petition under section 36 of the Central Excise and Salt Act was filed before the Government of India, Ministry of Finance.

(7) While the aforesaid proceedings were continuing the petitioner, who was required to pay excise duty under Items 19 and 21, went on claiming refund of the payments made by it. On the applications being rejected, it filed appeals before the Appellate Collector. In this manner two batches of appeal were rejected by the Appellate Collector vide order dated 21st May, 1975 and 30th April, 1976 and against these orders also revision petitions were filed before the Govt. of India, Ministry of Finance.

(8) In July, 1977 two other batches of appeals were preferred arising out of such refund applications which were till then pending before the Appellate Collector. When the said appeals were taken up for hearing on 6th July, 1977 the petitioner relied upon the Supreme Court decision in the Case of Gujarat Woollen Felt Mills reported as Union of India and others v. Gujarat Woollen Felt Mills, : 1977(1)ELT24(SC) . On the basis of the Supreme Court authority it was successfully contended before the Appellate Collector that the felts manufactured by the petitioner were not assessable under Tariff items 19 and 21. The orders accepting such appeals were passed by the Appellate Collector on 6th July, 1977 and 14th November, 1977. Thereafter the petitioner received a show cause notice under section 36(2) of the Act from Additional Secretary, Government of India calling upon the petitioner to show cause why the Appellate Collector's order dated 6th July, 1977 be not modified and the Assistant Collector's order restored. In the said show cause notice the ground given was that the aforesaid judgment of the Supreme Court had been wrongly applied. The petitioner sent a reply to the said notice. Similarly show cause notice and reply in connection with the Appellate Collector's order dated 14th November, 1977 was also received and sent by the petitioner. Ultimately the Central Government passed the impugned order dated 1st September, 1979. By the said order the revision petitions filed by the petitioner were dismissed and the orders of the Appellate Collector in favor of the petitioner were reviewed. It was, inter alia, held that the Items in question were exigible to duty under Tariff Items 19 and 21.

(9) The petitioner has filed the present writ petition challenging the aforesaid order dated 1st September, 1979 and has also prayed that it should be declared that the paper maker's felts manufactured by it do not fall within the meaning of fabrics under Items 19 and 21. The petitioner has further prayed for the refund of the excise duty collected by the respondents from it.

(10) Before us also the only contention raised on behalf of the petitioner is that the felts made by it are not fabrics. It is the contention of he petitioner that it is a well established principle that in construing an entry in a taxing statute resort should be had not to the technical, scientific or dictionary meaning but to the meaning attached to the item by those dealing in the goods in the commercial sense. It is contended that the petitioner's products are in common parlance of the trade known as 'paper maker's felts' and not as any kind of fabric. The petitioner has placed reliance on the Supreme Court decisions in the cases of Commissioner of Sales Tax U. P. v. M/s. S. N. Brothers, : [1973]2SCR852 , Dunlop India Ltd. v. Union of India Air 1977 S. C. 597(3), Union of India and others v. Gujarat Woollen Felt Mills. : 1977(1)ELT24(SC) and M/s. Healthways Dairy Products Cc v. Union of India : 1978(2)ELT457(SC) . In all these cases, it is contended by the petitioner, it has been held by the Supreme Court that the meanings given to the different commodities mentioned ir. fiscal statute must be such as the people in trade and commerce, conversant with the subject, generally read and understand. It is contended by the petitioner that the theory of common parlance is applicable even in a case where there are no competing entries under which a particular item is sought to be taxed. Reliance has been strongly placed on the Gujatat Woollen Felt Mills' case (supra) and it has been contended that in view of the said decision the respondents were incorrect in coming to the conclusion that the felts manufactured by the petitioner were taxable under Tariff items 19 and 21 of the Act. Relying on the affidavits filed, it is contended that in common parlance 'paper maker's felts' is not 'fabric' and the respondents have not shown to the contrary.

(11) On behalf of the respondents Shri M. Chandrasekhar does not contest the legal proposition that in interpreting such entries in the Schedule regard must be had to the meaning ascribed to them in common parlance. The contention of Shri Chandrasekhran, however, is that in Gujarat Woollen Mills' case the Supreme Court had categorically held that under item 21 woven material is to be regarded as fabric. He has further relied on the decision of the Supreme Court in the petitioners case under the Sales Tax Act reported as Porritts and Spencer (Asia) Ltd. v. State of Haryana, : 1983(13)ELT1607(SC) and contended that even if there was any doubt the same has been set at rest by the judgment of the Supreme Court in this case, wherein it has been held that in common parlance felt is a fabric. The contention of Shri Chandrasekhran, inother words, is that the case is fully covered by the aforesaid two decisions of the Supreme Court in favor of the respondents.

(12) In our opinion there is considerable force in the submissions of the respondents. Items 19 and 21 areas under :

'19.Cotton Fabrics 'Cotton Fabrics' means all varieties of fabrics manufactured either wholly or partly from cotton and includes dhoties. sarees. chadders, bed-sheets, bedspread. counter panes, table-cloths, embriodery in the piece, in strips or in motifs and fabrics impregnated, coated or laminated with preparations of cellulose derivatives or of other artificial pastic material..... 1(2) Others (0 Cotton fabrics not otherwise specified.'

'21.Woollen Fabrics 'Woollen Fabrics' means all varieties of fabrics manufactured wholly of wool or which contain 40 per cent or more by weight of wool and includes blankets, lohis, rugs, shawls and embroidery in the piece, in strips or in motifs. (1) Woollen fabrics, other than embroidery in the piece; in strips of in motifs.'

What is to be seen is as to what is regarded as a fabric in common parlance. The Supreme Court in Gujarat Woollen case was concerned with the interpretation of entry No. 21. In that case the petitioner was manufacturing woollen felts. It was an admitted case that there were two types of felts, namely, woven and non-woven. In the said Supreme Court decision what was in question was as to whether the non-woven felts could be regarded as woollen fabrics or not. The Supreme Court observed that 'fabric means woven material'. It was held that non-woven material cannot be regaraded as fabric and as such the felts manufactured by the Gujarat Woollen Felt Mills were not exigible to excise duty under entry No. 21. While rejecting the argument on behalf of the Government that even non-woven felts could come under the category of woollen fabrics the Supreme Court observed as under :

'INthis group, entry 21 describes woollen fabrics as meaning all varieties of fabrics manufactured out of wool, barring the exceptions mentioned, including blankets, lohis, rugs, shawls and embroidery in the piece, in strips or in motifs. If the term 'woollen fabrics' in this entry had been used in its technical or scientific sense and, if in that sense, it was wide enough to cover non-woven material which is wool-based, then it is difficult to explain why the entry should specifically mention blankets, rugs and shawls as being included within it. No one could possibly be in any doubt in respect of these few items if the term was so pervasive, and there was no reason for singling out these specific objects. On the contrary, the mention of these items suggests that the word 'fabrics' in entry 21 has been used to mean woven' material in which sense it is popularly understood, and blankets, rugs and shawls, etc. have been specifically included in the entry out of abundant caution to indicate that 'woollen fabrics' in entry 21 means not only woollen garments but also woollen material used as covering or for similar other purposes. We, thereforee find no reason to take a view different from that taken by the High Court.'

The ratio of the aforesaid decision, thereforee, appears to be that all non-woven material are not fabrics. The contention of Shri Asoke Sen is that merely because a fabrics has to be a woven material would not necessarily lead to the conclusion that everything woven is fabric. This submission appears to be answered by the Supreme Court when it held that entry 21 'has been used to mean woven material in which sense it is popularly understood.' It is thus clear that the Supreme Court regarded woven material to be fabric. The other decision which is relied upon by Shri Chandra Sekhar, i.e., Porritts & Spencer (Asia) Ltd. (supra), puts the matter beyond any controversy. That case arose under the Sales Tax Act. The contention of the petitioners, who were the appellants before the Supreme Court, was that the sale of felts were exempt from the levy of sales tax as it fall within the exempled category of 'all varieties of cotton, woollen or silken textile' specified in Item 30 of Schedule B of the Punjab General Sales Tax Act, 1948. The sales tax authorities held that the felts were not textile. The High Court on a reference also came to the conclusion that felts were not included in expression 'textile' and were thus not exempt from tax. Before the Supreme Court the question arose whether the dryer felts manufactured by the petitioner could be regarded as textile or not. The Supreme Court held that the word 'textile' in Item 30 must be interpreted according to the popular sense. It was observed that 'the word 'textiles' is derived from the Latin 'texere' which means 'to weave' and it means any woven fabric. When yarn, whether cotton, silk, woollen, rayon, nylon or of any other description or made out of any other material is woven into a fabric, what comes into being is a 'textile' and it is known as such'. It was further observed that the use to which a product is put does not determine its character at all. Dealing with the nature of the felts manufactured by the petitioner it referred to the process of manufacture as described by the petitioner itself. The Supreme Court thereafter observed that 'dryer felts are, thereforee, clearly woven fabrics and must be held to fall within the ordinary meaning of the word 'textiles'. The Supreme Court also referred to the Customs Tariff Act, 1975. In the said Act reference is made to textile fabrics in Chapter 59, Section Xi of the First Schedule of the said Act. Clause (4) of the said Chapter provided that the expression 'textile fabric' would, inter alia, apply to 'woven textile felts...... of a kind commonly used in paper making or other machinery......' After referring to this provision the Supreme Court observed that 'this reference in a statute which is intended to apply to imports made by the trading community clearly shows that 'dryer felts' which are 'woven textile felts.....of a kind commonly used in paper making machinery' are regarded in common parlance, according to the sense of ordinary traders and merchants, textile fabrics. We have, thereforee, no doubt that 'dryer felts' are 'textiles' within the meaning of that expression in Item 30 of Schedule B.'

(13) It is apparent, thereforee, that the Supreme Court has regarded the felts of the kind manufactured by the petitioner as textile fabrics even in common parlance.

(14) In view of the aforesaid decisions of the Supreme Court the affidavits filed by the petitioner and sought to be relied upon by it, to contend to the contrary are of no help to the petitioner. The first affidavit relied upon by the petitioner is of Shri D. B. Lal. He has, inter alia, stated that he was dealing in many varieties of fabrics. He has, however, categorically stated that 'the fabrics we deal in are intended for use in making garments and clothes for wearing'. He no doubt says that the material shown to him, namely, felt is not a fabric as he understood the term in the trade. Similarly in the other affidavits also the deponents have said that the material shown to them is not understood as fabric in the textile trade. In our opinion the said averments cannot be accepted as correct. Not only have the Supreme Court in the aforesaid decisions regarded the felts as a textile fabric but even in the glossary of textile terms, prepared by the Indian Standards Institute a fell is classified as a textile fabric. In this connection we may observe that the Supreme Court in the case of Union of India and another v. Delhi Cloth and General Mill? Co. Ltd., : 1973ECR56(SC) has held that the opinion of the Indian Standards Institute is important and had to be preferred to the opinion of an author in that case. We would also prefer to rely upon the opnion of the Indian Standards Institute as expressed in the glossary of textile terms compiled by it in preference to the opinion given by the traders, whose affidavits have been filed by the petitioner.

(15) In our opinion, thereforee, there is no merit in the writ petition. The petition is accordingly dismissed with costs. Counsel's fee Rs. 500.


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