V.P. Tyagi, Ag. C.J.
1. S. Zoraster and Company (Supplies) Pvt. Ltd. has filed this writ petition under Article 226 of the Constitution praying that the Union of India may be restrained by issuing a writ of prohibition from levying and collecting excise duty on their product, namely, woollen industrial felt under the Central Excises and Salt Act, 1944 (hereinafter referred to as 'the Act'). It was further prayed that the amount of Rs. 7,52,320.55 paise collected by the respondent as excise duty from the petitioner company be ordered to be refunded to the petitioner.
2. The petitioner-company manufactures woollen felts at Jaipur. The woollen felts and allied product manufactured by the company, according to the petitioner, are used for industrial purposes, and not for wearing apparels and therefore it does not fall within the expression 'woollen fabrics' as used in Item No. 21 of Schedule I annexed to the Act under which the excise duty is charged.
3. According to the averments made by the petitioner-company there is similar factory known as Gujarat Woollen Felt Mills, Baroda producing exactly the similar material. That Mill challenged in the Gujarat High Court the levy and collection of excise duty on their produce and the Gujarat High Court by their judgment in Special Civil Appln. No. 442 of 1967 under Article 226 of the Constitution in the matter of Gujarat Woollen Felt Mills v. Union of India held that the woollen felt manufactured by that firm could not be taxed under Item No. 21 of Schedule I to the Act. On the basis of this judgment of the Gujarat High Court the petitioner-company wrote to the excise authorities not to levy and collect the excise duty on the woollen felt produced by it but in spite of its repeated requests made by the petitioner the excise authorities did not agree and continued to levy and collect the excise duty on the product of the petitioner-company. It is under these circumstances that the petitioner has filed this writ petition with the prayer as aforementioned.
4. The Union of India joined issues with the petitioner-company and urged that Item No. 21 of Schedule I to the Act only speaks of the 'woollen fabrics' which, according to the replying respondent, covers the woollen felt. It was also averred that the purpose or use of the woollen felt has no bearing on the levy and collection of the excise duty under the said provision of law. It was denied that the product of the petitioner-company is used for ammunition industry, aviation industry, telephone industry, agriculture industry and for oil filters used in automobile industry, etc. According to the Union of India the purpose for which the petitioner company is alleged to be manufacturing felt has no bearing whatsoever on their liability for payment of excise duty under Item No. 21 of Schedule I of the Act.
5. Mr. Daphtary argued that 'fabric' is a term which covers all textiles, no matter how manufactured and the nature of the material from which it is made. Felts, according to him, can never fall within the ambit of textiles as the process used by the petitioner-company for manufacturing the woollen felts is different from the process employed for manufacturing the fabrics. The compressed felt sheets manufactured by the petitioner-company, according to Mr. Daphtary, are quite different from the apparel cloth as it does not stand the course of washing. According to the petitioner, the finished product of the company is obtained by the process of making the compressed woollen felts both with manual labour as well as with the help of two or three imported and also indigenously fabricated machines, and the process of making the compressed woollen felts is just to put the fabrics of the wool symetrically and press it with the help of multi roller using chemicals as well. The felts are manufactured in sheets of various thickness in length and width and are used for industrial purposes. Therefore, in his opinion felt industry cannot be linked with the process of manufacturing woollen fabrics.
6. On the other hand, Mr. S.K. Mal Lodha, appearing on behalf of the Union of India, relied on the dictionary meaning of the word 'felt' and urged that the word 'fabric' according to the Oxford Dictionary, or Encyclopaedia Britannica, 9th Volume (1969 Edition) and Mercury's Dictionary of Textile Terms, covers felt also, and therefore while interpreting the expression 'woollen fabric' as used in Item No. 21 of Schedule I of the Act it would not be possible to take the 'Felt' out of the said expression.
7. To resolve the controversy whether 'felt' is covered by the word 'fabric', let us first look to the dictionary meaning of these expressions.
8. The India Standard Institution has issued a Glossary of Textile Terms and that Glossary has defined 'felt' as under,--
'Felt--A textile material characterised by the densely matted condition of most of all the fibres of which it is composed.
Note.--Two broad classes of felt can be distinguished (a) materials having a woven fabric structure, and (b) non-woven materials consisting principally of animal fibres, relying for their construction upon the ability of the constituent fibres to meet together to form a composite body with neither wrap or weft'.
9. Oxford Dictionary at page 149 has given the meaning of 'felt' as a kind of cloth made by rolling and pressing wool, 'Fibre' has been defined as a substance capable of being spun, woven or felted. The meaning of the word 'fabric' as given in this dictionary is, 'thing put together, woven material, construction and texture tissues.'
10. Encyclopaedia Britannica, 1969 Edition, at page 161 has given the meaning of 'felt' as follows,--
'Felt, a class of fabrics or fibrous structures obtained through the interlocking of wool, fur or some hair fibres under conditions of heat, moisture and friction. .....'
'Wool Felt' has also been described in this very volume at page 228 as 'The wool fibre is covered with a sheath of over-lapping scales arranged like the shingles on a roof.... .... The combination of moisture, heat and mechanical agitation causes the wool fibres to extend and retract. The scales permit the fibres to slide past each other more easily in one direction than in the other. Thus the fibres become progressively entangled to the point where a compact felt, or fulled, fabric results. Felts can be prepared by the direct entanglement of fibres or by first spinning yarns, weaving cloth and then fulling the cloth with hot, soapy water and agitation.'
11. Webster's Third New International Dictionary, Volume I (1966 Edition) at page 836, has defined 'felt' as follows,--
'a cloth constructed usually of wool and fur fibres often mixed with natural or synthetic fibres by the interlocking of the loose fibres through the action of heat, moisture, chemicals, and pressure without spinning, weaving or knitting.'
The dictionary meaning of the word felt' as given above hardly leaves any room for doubt that the felt is manufactured by the interlocking of the loose fibres by adopting a process as employed by the petitioner-company for manufacturing its product. Encyclopaedia Britannica has described 'felt' as a class of fabrics or fibrous structure. 'Fabric' has been defined as a cloth of a particular kind. In view of the dictionary meaning of the words 'felt' and 'fibre', there is hardly any room for doubt that the expression 'felt' which is manufactured by fibres is covered by the expression 'woollen fabric'. In this view of the matter, it is difficult for us to accept the contention of Mr. Daphtary that felt as produced by the petitioner-company will not, in its generic sense, come within the ambit of the expression 'woollen fabric'.
12. It was, however, contended by Mr. Lodha that 'fabric' is a genus of 'felt', which is only a specie and therefore it cannot be taken out of the application of the term 'woollen fabric'. The demand of the petitioner that its product should be exempt from the levy of the excise duty, therefore according to Mr. Lodha cannot be entertained by the High Court in the exercise of its jurisdiction under Article 226 of the Constitution. In support of this contention, reliance has been placed by Mr. Lodha on authorities in Girdharilal Bansidhar v. Union of India AIR 1964 SC 1519 and V.V. Iyer of Bombay v. Jasjit Singh, Collector of Customs AIB 1973 SC 194.
13. In Girdharilal's case AIR 1964 SC 1519, the interpretation of Entry 22 of Part I of the Import Trade Control Hand-book was challenged and it was urged that the High Court while exercising its jurisdiction under Article 226 of the Constitution should not interfere with the conclusion reached by the authority under the Act, which on the very face of it appears to be quite reasonable. While dealing with this point learned Judges held that 'a court dealing with a petition under Article 226 is not sitting in appeal over the decision of the Customs Authorities and therefore the correctness of the conclusion reached by those authorities on the appreciation of the several items in the Hand-book or the Indian Tariff Act which is referred to in these items, is not a matter which falls within the writ jurisdiction of the High Court.' The learned Judges further observed that 'there is, here no complaint of any procedural irregularity of the kind which would invalidate the order, for the order of the Collector shows by its contents that there has been an elaborate investigation and personal hearing accorded before the order now impugned was passed.'
14. In Iyer's case AIR 1973 SC 194, the question that was raised before the Court was whether the High Court in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution could interpret the expression used in the Act so as to judge the proper scope of Item No. 74 (vi) of Part V of the I. T. C. Schedule when they have been given proper hearing by the Customs authorities. Their Lordships of the Supreme Court after reviewing their previous judgments in Venkateshwaran v. Wadhwani (AIR 1961 SC 1506) and Girdharilal Bansidhar v. Union of India (AIR 1964 SC 1519) observed as follows:--
'In view of these two decisions of this Court which are binding on us, we have no manner of doubt that the High Court of Bombay was quite right in accepting the conclusions and findings of the Customs authorities about the proper scope of Item 74 (vi) of the I. T. C. Schedule. In our opinion, there is nothing in the decision of the Collector which can warrant its condemnation as perverse or unreasonable. Even if it be assumed that because of the language used in the two items viz. Item 74 (vi) and 74 (x) of the I. T. C. Schedule, there is some room for confusion, it would not be competent for the High Court to interfere in a writ petition with the conclusion or findings of the Collector of Customs regarding the scope and ambit of those items.'
15. Relying on the observations of this Court in Krishan Chander v. Board of Revenue for Rajasthan 1972 WLN 850 = (AIR 1973 Raj 171) Mr. Lodha urged that even if there is possibility of giving a different meaning to a particular item in the Schedule from the one as given by the authorities created under the Act, this Court should adhere to the meaning given by such authorities and should be slow to interfere while exercising its jurisdiction under Article 226 of the Constitution with the verdict given by the authorities.
16. While meeting this argument of Mr. Lodha, Mr. Daphtary vehemently urged that in a taxing statute, like the one under consideration, the court should not, as far as possible, enlarge the scope of the Item mentioned in the Schedule by adhering to the dictionary meaning of the expressions or words used by the legislature. According to him, the expression used by the legislature should be given a meaning as it is commonly understood in commercial world. According to Mr. Dephtary the expression 'woollen fabric' as used in Item No. 21 in Schedule I is understood in common parlance as meaning woollen cloth and woollen textiles; 'felt'. which is never used as textiles, cannot be covered by the words 'woollen fabric'. In support of this argument, reliance has been placed by the learned counsel on the Gujarat High Court judgment and certain other judgments of the Supreme Court and other High Courts; including the decision of the Gujarat High Court in the case of Gujarat Woollen Mills SCA No. 442 of 1967 (Guj) (supra).
17. In the Gujarat case the petitioner used to manufacture felt of the same type which the petitioner-company produces. The judgment of that case resolves the controversy raised in the instant case and it applies to it on all fours. The learned Judges of the Gujarat High Court after considering various decisions of the Supreme Court under the provisions of the Sales Tax Act, held that in the light of the practical common sense and in applying the tests laid down by the decided cases referred therein, it is clear that the product manufactured by the petitioner firm for industrial use, though a felt as understood from the technical point of view, is not a woollen fabric as is generally understood in common parlance by persons dealing with this commodity and are well conversant with woollen fabrics in their dealing with this commodity in the course of their trade and business.
18. In another Gujarat case: State of Gujarat v. Umedram Lallubhai (1965) 16 STG 1059 (Guj), a question arose whether borders woven on handloom out of pure silk, art silk and jari threads are handloom cloth within the moaning of entry 29 in Schedule A of the Bombay Sales-tax Act, 1959. In order to interpret this entry 29 the learned Judges were asked to interpret the word 'cloth' used therein. The argument advanced before the Court was that even a carpet would be covered under the expression 'handloom cloth' but in the technical or technological sense meaning given by a dictionary, a carpet may be a woven fabric but it could never be given a meaning which would bring it within the ambit of the word 'cloth' after consulting various dictionaries. The learned Judges quoted with approval the following para,--
'The expression 'cloth' has acquired a secondary meaning, that is to say, a meaning attached to that expression in common par-lance by those dealing in and conversant with handloom cloth, and the carpet of the type we have before us would not, in our view, be included in the expression 'handloom cloth of all varieties'.'
After taking into consideration various authorities cited before the Court, the learned Judges finally held that the word 'cloth' in entry 29 of Schedule A must be interpreted according to its secondary or popular sense, and not in its primary or technical sense, in which it is commonly understood in ordinary parlance. In ordinary parlance border cannot be regarded as cloth.
19. The Supreme Court in Ganesh Trading Co., Carnal v. State of Haryana (1974) 3 SCC 620 = (AIR 1974 SC 1362) laid down a principle to interpret the taxing statute and observed while deciding a question whether paddy and rice are identical goods for imposition of Sales Tax under the Punjab General Sales-tax Act, 1948, as follows,--
'In order to find out the true meaning of the entries mentioned in the Sales Tax Act, what is relevant is not the dictionary meaning but how those entries are understood in common parlance, specially in commercial circles. Sales Tax primarily deals with dealers who are engaged in commercial activity and, therefore, what is of the essence is to find out whether in commercial circles, paddy is considered as identical with rice.'
20. In Burmah Shell Oil Storage and Distributing Company of India Ltd. Madras v. State of Madras (1968) 21 STC 227 (Mad) entry 47 Schedule I of the Madras General Sales-tax Act, 1959, came up for interpretation before the Madras High Court. The said entry contained 'lubricating oils, all kinds of mineral oils, quenching oils and greases'. A question arose whether furnace oil, a non-lubricant, would fall within the ambit of lubricant. Their Lordships observed that the words 'all kinds of mineral oils' in the ordinary sense had only a limited meaning, namely, mineral oils which were lubricants, and therefore mineral oils could not be covered by entry 47.
21. In another case: Ramavatar Budhai Prasad v. Assistant Sales Tax Officer Akola, AIR 1961 SC 1325 a question arose before the Supreme Court while interpreting item 6 of Schedule II of the C. P. and Berar Sales Tax Act, 1947, whether 'betel leaves' are included in the vegetables as mentioned in the said entry. While rejecting the case of the assessee that betel leaves were covered by the expression 'vegetables' as used in item 6, their Lordships observed that the expression 'vegetables' must be interpreted not only on the dictionary meaning or in its technical sense or from the botanical point of view but it should be given a meaning as understood in common parlance. Their Lordships in this connection observed as follows,--
'It, (vegetable) has not been defined in the Act and being a word of every day use it must be construed in its popular sense meaning 'that sense which people conversant with the subject matter with which the statute is dealing would attribute to it'. It is to be construed as understood in common language.'
While arriving at this conclusion their Lord-ships referred with approval the following observations of the Nagpur High Court in AIR 1956 Nag 54:--
'In our opinion, the word Vegetables' cannot be given the comprehensive meaning the term bears in natural history and has not been given that meaning in taxing statutes before. The term Vegetables' is to be understood as commonly understood denoting those classes of vegetable matter which are grown in kitchen gardens and are used for the table.'
22. Mr. Lodha placing reliance on a Supreme Court authority in the State of Gujarat v. Sakarwala Brothers (1967) 19 STC 24 (SC) urged that in that case the expression 'sugar' in entry 47 of Schedule A to the Bambay Sales Tax Act, 1959, was given a wider meaning. It covered all types of product of sugar like patasa, harda and alchidana, and similarly any product made from the woollen fabric will be covered by the expression 'woollen fabric'. This decision, in our opinion, does not affect the principles laid down by the Supreme Court to interpret the taxing statute in a manner in which the term used therein is generally understood in common parlance by those who deal with such commodities.
23. The law laid down by the Gujarat High Court in the Gujarat Woollen Felt Mills' case clearly covers the controversy raised in the case before us. We are in respectful agreement with the law laid down by the learned Judges of the Gujarat High Court and we feel that the expression 'woollen fabric' as used in Item 21 of Schedule I of the Act shall not cover the product of the petitioner-company 'woollen felt'.
24. As regards the prayer for the refund of the duty realised by the Union of India from the petitioner-company we can say that this Court cannot pass a decree in favour of the petitioner for the refund of the said amount while exercising its extraordinary jurisdiction under Article 226 of the Constitution. The petitioner's learned counsel also did not press this claim with that vehemence with which he had argued the case of other points. We, therefore, reject the prayer of the petitioner for the refund of the amount realised as duty on the products of the petitioner-company.
25. For the reasons mentioned, the writ petition is partly allowed and it is declared that felt produced by the petitioner-company would not be covered by the expression 'woollen fabric' as contained in Item No. 21 of Schedule I of the Act and as such the Union of India shall not realise the excise duty from the petitioner-company.
26. Looking to the circumstances of the case we make the costs easy.