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P. Kesavan and Company Vs. the Assistant Commissioner of Sales Tax (Assessment) - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKerala High Court
Decided On
Case NumberWrit Appeal Nos. 84 and 85 of 1974
Judge
Reported in[1976]37STC221(Ker)
AppellantP. Kesavan and Company
RespondentThe Assistant Commissioner of Sales Tax (Assessment)
Appellant Advocate C.S. Anantha Krishna Iyer,; S. Swaminathan and; M. Balak
Respondent AdvocateGovernment Pleader
DispositionAppeal allowed
Cases ReferredState of Madras v. Cement Allocation and Co
Excerpt:
- - the process of making strapping is a sophisticated one of recent origin by which process the cords are pasted together by strong glue, which is resilient and elastic to some extent. the result is a tape-like structure, with certain elasticity if stretched breadthwise, but having no such elasticity for stretching lengthwise, which is strong and durable. rayon in its basic form may be yarn or thread or cord and, we expect, can be in some other form as well. he further submitted that this court should not decide in the first instance questions which can competently and effectively be determined by the statutory authorities, and particularly so, when the interests of the appellant are safeguarded by the hierarchy of appellate authorities and finally by this court......at the relevant time, was in these terms:cotton fabrics, woollen fabrics and rayon or artificial silk fabrics as defined in items nos. 19, 21 and 22 respectively of the first schedule to the central excises and salt act, 1944.item 22 in the first schedule to the central excises and salt act, 1944, is in these terms :'item no. description of goods. rate of duty. 22 rayon or artificial silk fabrics.--'rayon or artificial silk seven naye paise fabrics' include all varieties of fabrics manufactured either per square metre.' wholly or partly from rayon or artificial silk, but do not include any such fabric-- (i) if it contains 40 per cent or more by weight of wool; (ii) if it contains 40 per cent or more by weight of silk; (iii) if it contains cotton and less than 60 per cent by weight of.....
Judgment:

P. Govindan Nair, C.J.

1. These appeals raise a common question. The appellants are assessees to sales tax under the Kerala General Sales Tax Act, 1963, for short 'the Act'. They contended that 'caristrap rayon cord strapping' is rayon fabric exempted from tax under item 7 of the Third Schedule to the Act. The Third Schedule sets out various goods, the sales of which are exempted from tax under Section 9 of the Act. Item 7, as it stood at the relevant time, was in these terms:

Cotton fabrics, woollen fabrics and rayon or artificial silk fabrics as defined in items Nos. 19, 21 and 22 respectively of the First Schedule to the Central Excises and Salt Act, 1944.

Item 22 in the First Schedule to the Central Excises and Salt Act, 1944, is in these terms :

'Item No. Description of goods. Rate of duty.

22 Rayon or artificial silk fabrics.--'Rayon or artificial silk Seven naye paise

fabrics' include all varieties of fabrics manufactured either per square metre.'

wholly or partly from rayon or artificial silk, but do not

include any such fabric--

(i) if it contains 40 per cent or more by weight of wool;

(ii) if it contains 40 per cent or more by weight of silk;

(iii) if it contains cotton and less than 60 per cent by weight

of rayon or artificial silk; or

(iv) if it contains no cotton and less than 40 per cent by weight

of wool and less than 40 per cent by weight of rayon or

artificial silk.

2. That 'caristrap rayon cord strapping', hereinafter referred to as 'strapping', is made by using practically exclusively rayon cord, is admitted. The process of making strapping is a sophisticated one of recent origin by which process the cords are pasted together by strong glue, which is resilient and elastic to some extent. The result is a tape-like structure, with certain elasticity if stretched breadthwise, but having no such elasticity for stretching lengthwise, which is strong and durable. If the strapping is a rayon fabric as defined in item 22 of the First Schedule to the Central Excises and Salt Act, 1944, there can be little doubt that the sale of the strapping would be exempted. It would be useful to remember the words used in item 22 wherein an attempt is made to define rayon fabrics by stating that it includes all varieties of fabrics manufactured either wholly or partly from rayon or artificial silk and by stating that it will not include any fabric enumerated in Clauses (i) to (iv) therein. A glance at the excluded items makes it clear that the fabrics manufactured out of rayon need not be made by the exclusive use of rayon. On the other hand, it is clear from the articles excluded and enumerated in Clauses (i) to (iv) that it may contain substantial parts of wool, cotton or silk.

3. The word 'fabric' has different meanings ; workmanship ; texture ; anything framed by art and labour ; a building ; manufactured cloth; any system of connected parts; and to construct. The apt meaning to be applied in the context appears to be to construct with rayon. It will thus be clear that to make rayon fabrics a manufacturing process will be involved and some sort of construction work will have to be undertaken. We can conceive of different types of articles being made out of rayon ; there can be rayon cloth, rayon sarees, rayon jerseys, rayon tapes, rayon mufflers and rayon tapes and straps. These articles of course have no common identity as they take in entirely different kinds of goods. The entry in item 22 in the First Schedule to the Central Excises and Salt Act, 1944, which is attracted by item 7 in the Third Schedule to the Act thus exempts from tax not only one type of goods which is identifiable as a separate and distinct article but different articles which have one thing in common that they are made out of rayon. In a case of this nature, it would be idle to apply what is called the identity test to find out whether the thing sold is the thing mentioned as item 22 in the schedule. Identification would be possible only when the exempted item is a specific item. In cases such as the one before us, the only question would be whether the particular strapping which, as we said, was made out of rayon cords, if not exclusively by the use of such cords, practically exclusively by using rayon cords, is rayon fabric. There can be little doubt whatever that the strapping has been fabricated out of rayon essentially and substantially and is therefore a rayon fabric as defined in item 22 of the First Schedule to the Central Excises and Salt Act, 1944, the sale of which is exempted under item 7 of the Third Schedule to the Act.

4. A number of decisions have been referred to by the learned Judge in the judgment under appeal in paragraphs 2 to 6. The learned Judge then referred to the decision in Commissioner of Sales Tax v. Harbilas Rai and Sons [1968] 21 S.T.C. 17 (S.C.), wherein the connotation of the word 'manufacture' in the context of sales tax legislation was clarified and it was laid down that 'if the goods to which some labour is applied remain essentially the same commercial article, it cannot be said that the final product is the result of manufacture'. Herein we get the echo of the identity theory. But when we speak of rayon fabrics, the mind fails to focus its attention on specific article or thing or goods. The picture that conjures up is that of a conglomeration of articles of varying uses of varying types and so different from one another. In such cases, it is impossible to apply the identity theory. The only question to consider, as we indicated, would be whether the particular strapping by whatever name called is still a rayon fabric. The common parlance theory not also apply, for rayon fabrics in common parlance does not denote any specified article or class of articles. With great respect, we are unable to agree with the learned Judge that 'in common parlance it cannot be said that caristrap is rayon fabrics'. The learned Judge has further observed that 'the two articles, rayon fabric and caristrap, are two different and distinct articles and therefore caristrap cannot be said to be entitled to exemption under Section 9 of the Kerala General Sales Tax Act'. It has also been stated that 'nobody will call caristrap, rayon fabric. The two are distinct commercial articles, one different from the other; both in its form and user'. With respect, we are unable to agree. Rayon in its basic form may be yarn or thread or cord and, we expect, can be in some other form as well. Whatever form it is in, rayon is a commodity distinct and separate from silk or cotton. Rayon fabric is something made out of rayon. One particular article produced from rayon may be completely different from another article produced from rayon. But all these articles so produced and manufactured by the use of rayon would be rayon fabric. In that view the particular strapping made out of rayon, if not exclusively by the use of rayon cords, practically exclusively by the use of rayon cords, would be a rayon fabric.

5. Our attention was drawn by counsel for the revenue to the Full Bench decision of this Court in Achamma v. State of Kerala 1967 K.L.T. 832. The question that arose therein was whether rubber chappals manufactured out of rubber soles and rubber straps and sold by a dealer, who had purchased separately the rubber soles and straps were exempt from tax in view of item No. 5 in Schedule I to the General Sales Tax Act, 1125. That item was in these terms:

Rubber products other than cycle tyres and tubes and rubber accessories of cycles.

And the contention that was raised was that what was sold by the dealer as chappals was a rubber product on which tax has been already levied at the point of the first sale within the State, namely, the sales to the dealer of the soles and strap mouldings by the manufacturer. This court took the view that in order to get the exemption, the goods sold must be the identical goods that had been purchased on which tax had been paid. So the question was considered whether rubber chappal is the same as the sole and strap mouldings, no doubt, also made out of rubber. It was held that the soles and straps were not the same as the rubber chappals; that the two were different commodities and popularly understood to be different. This decision, we do not think will be helpful in considering the question before us. Nor do we think that the decisions in Tungabhadra Industries Ltd. v. Commercial Tax Officer, Kurnool [1960] 11 S.T.C. 827 (S.C.), in which it was held that vanaspati was groundnut oil, that in the State of Gujarat v. Sakarwala Brothers [1967] 19 S.T.C. 24 (S.C.), wherein it was held that patasa, harda and alchidana fell within the definition of 'sugar', or that in Ganesh Trading Co. v. State of Haryana [1973] 32 S.T.C. 623 (S.C.) relied on by the counsel for the appellant are of much help in deciding the question arising for determination in these cases. But the decision of the Madras High Court in Deputy Commissioner of Commercial Taxes, Madurai Division, Madurai v. Madurai Printing Tape Factory [1971] 28 S.T.C. 431 is on point. The question before the Madras High Court was whether tapes made out of cotton threads by pasting them together is a variety of textile made of cotton. The decision is apposite and has taken the same view as that we have expressed above.

6. It only remains for us to examine the decision in Shree Ram Industries v. State of Gujarat [1974] 34 S.T.C. 153, very strongly relied on by counsel for the revenue. The question that arose therein was whether saris to which zalars were attached were covered by entry 41 of Schedule A or whether they fell under entry 11A or 19 of Schedule E to the Bombay Sales Tax Act, 1959.

Entry 41 in Schedule A was in the following terms:

41. Rayon or artificial silk fabrics as defined in item No. 22 of the First Schedule to the Central Excises and Salt Act, 1944.

Item 22 of the First Schedule read:

22. Rayon or artificial silk fabrics.--'Rayon or artificial silk fabrics' include all varieties of fabrics manufactured either wholly or partly from rayon or artificial silk, but do not include any such fabrics--

(i) if it contains 40 per cent or more by weight of wool;

(ii) if it contains 40 per cent or more by weight of silk ;

(iii) if it contains cotton and less than 60 per cent by weight of rayon or artificial silk ;

(iv) if it contains no cotton and less than 40 per cent by weight of wool and less than 40 per cent by weight of rayon or artificial silk ; or

(v) if manufactured on a handloom.

Entry 11A of Schedule E of the Bombay Sales Tax Act, 1959, considered was in these terms :

Saris embroidered or otherwise decorated, sold at a price not less than Rs. 18 but less than Rs. 30 per piece.

And entry 19 to Schedule E read :

Saris embroidered or otherwie decorated, sold at a price not less than Rs. 30 per piece.

The court held that :

If there is apparently any conflict between a general provision and a special provision, attempt must be made to construe them harmoniously and a general entry must give way to a special entry. Section 5 cannot be construed to mean that once the commodity or article is taken out of the entries in Schedule A to the Act because the same is governed by a specific entry contained in other schedules still the turnover in respect of the article or commodity has to be given an immunity from the liability to pay tax.

The principle that was applied by the Supreme Court was that the special excluded the general. There is no such conflict between a special and general provision in the cases before us and no special entry has been pointed out which would have the effect of taking the particular strapping out of item 7 of the Third Schedule to the Act. The ordinary import of the words 'rayon fabrics' must therefore apply.

7. Counsel on behalf of the revenue very vehemently contended before us that this court ought not to deal with this matter in proceedings under Article 226 of the Constitution. Counsel relied on a number of decisions, such as those in Bhopal Sugar Industries Ltd. v. D.P. Dube, Sales Tax Officer, Bhopal [1963] 14 S.T.C. 410 (S.C.), Thansingh Nathmal v. Superintendent of Taxes, Dhubri [1964] 15 S.T.C. 468 (S.C.), State of Madras v. Cement Allocation and Co-ordinating Organisation [1972] 29 S.T.C. 114 (S.C), Champalal Binani v. Commissioner of Income-tax, West Bengal [1970] 76 I.T.R. 692 (S.C), J. Fernandes & Co. v. Deputy Chief Controller of Imports and Exports A.I.R. 1975 S.C. 1208, Sales Tax Officer, Jodhpur v. Shiv Ratan G. Mohatta A.I.R. 1966 S.C. 142 and Hari Prasad Mulshankar Trivedi v. V.B. Raju A.I.R. 1973 S.C. 2602, in support of his submission that we should decline our jurisdiction as the appellant has adequate remedies under the statute. He further submitted that this court should not decide in the first instance questions which can competently and effectively be determined by the statutory authorities, and particularly so, when the interests of the appellant are safeguarded by the hierarchy of appellate authorities and finally by this court. This submission of counsel is not without force. But the original petitions are of the years 1972 and 1973. We ordered notice on the petitions and they have been heard on the merits. Considerable time has now elapsed and at this stage we do not think that we must decline our jurisdiction. We think, more appropriately, it is the principle stated in the decision in L. Hirday Narain v. Income-tax Officer, Bareilly [1970] 78 I.T.R. 26 (S.C.), that would apply. The Supreme Court observed as follows in paragraph 12 :

An order under Section 35 of the Income-tax Act is not appealable. It is true that a petition to revise the order could be moved before the Commissioner of Income-tax. But Hirday Narain moved a petition in the High Court of Allahabad and the High Court entertained that petition. If the High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision, because at the date on which the petition was moved the period prescribed by Section 33A of the Act had not expired. We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer under Section 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits.

A similar view has been expressed by the Supreme Court in State of Madras v. Cement Allocation and Co-ordinating Organisation [1972] 29 S.T.C. 114 (S.C.). We shall extract the observations in paragraph 1 of the judgment:

The High Court entertatined that writ petition. It would have been proper if the High Court had directed the assessee to put forward its case before the authorities under the Madras General Sales Tax Act, 1959. Now that the High Court had entertained the writ petition and gone into the merits of the case, it serves no useful purpose to refuse to go into the merits of the case.

8. We are therefore unable to accept the contention of counsel on behalf of the revenue that we must at this stage decline jurisdiction.

9. In the light of what we have stated above, we set aside the judgment under appeal and allow the original petition holding that 'caristrap rayon cord strapping' is rayon fabric exempted from tax under item 7 of the Third Schedule to the Act. We direct the parties to bear their respective costs throughout.


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