2013 (5) TMI 397 - HC - VAT and Sales Tax

Whether bed sheet answers the description of cloth entitling the appellant for exemption. - appellant s case is that bed sheet made of powerloom cloth is essentially cloth as such and it is entitled to exemption under the specific entry provided under Item 10 of the Third Schedule to the KGST Act and along with that he prayed for waiver of interest. Department submitted that lack of specific entry in the First Schedule providing for rate of tax on an item does not lead to exemption for the commodity because the residuary entry of the First Schedule specifically states that all those items which are not covered by specific entries would be subject to rate of tax at 8%. Held that - It may be noticed that various tariff entries referred to in Item No.11(i) of the Third Schedule does not take in the above HSN Code, which means that even under the Central Excise Tariff bed sheet is treated as a separate item different from cloth from which it is made. It is worth noticing that when exemption is granted to handloom cloth along with it even readymade garments made of handloom cloth are covered by the said exemption entry i.e. Item 27 of the Third Schedule. So much so, we are of the view that Entry 10 of the Third Schedule is not intended to cover any products made from cloth such as bed sheets, bed covers, towels, napkins etc. - In our view the learned Single Judge rightly held so. - Decided against the assessee. Waiver of Interest - held that - Waiver will be granted until the date of the judgment of the learned Single Judge against the appellant. However, if payment is not made as above, the partial waiver of interest granted by us will stand automatically vacated and the respondents can proceed for recovery of entire arrears with interest till date of payment.

Summary

Issues:
Interpretation of sales tax exemption under Item 10 of the Third Schedule to the Kerala General Sales Tax Act for bed sheets made of powerloom cloth.

Analysis:
The Writ Appeal challenged the judgment holding that bed sheets made of powerloom cloth are not entitled to sales tax exemption under Item 10 of the Third Schedule to the KGST Act. The appellant argued that bed sheets made of powerloom cloth qualify for exemption under the specific entry in the Third Schedule. However, the Assessing Officer and the Single Judge, following the decision in Delhi Cloth & General Mills Co. Ltd. v. State of Rajasthan, held that bed sheets are products made of cloth and not covered under the exemption for powerloom cloth. The appellant contended that until the introduction of a specific entry for bed sheets in the First Schedule, the exemption for cloth woven on powerloom should apply to bed sheets as well since they are made of cotton cloth woven on powerloom.

The Government Pleader argued that the absence of a specific entry in the First Schedule does not automatically exempt a commodity from tax. The court acknowledged that the First Schedule is not exhaustive, and unlisted items are subject to an 8% tax rate. The court emphasized that the scope of exemption must be determined from the exemption entry itself, considering other entries in the same schedule. The court analyzed various entries in the Third Schedule to understand the legislative intent behind the exemption for cloth woven on powerloom.

The court referred to the principle that words or expressions in statutes must be understood in the sense in which they are perceived by traders, dealers, and consumers. The interpretation of the exemption for cloth woven on powerloom under Entry 10 of the Third Schedule was crucial. The court noted that the legislature did not intend for products like bed sheets, bed covers, towels, etc., made of cloth to be covered under the exemption for powerloom cloth. The court emphasized that the distinction between cloth and products like bed sheets is clear in the legislative intent.

The court rejected the appellant's argument that bed sheets should be exempted under Entry 10, stating that bed sheets made of powerloom cloth do not fall under any exemption entry in the Third Schedule. The court also dismissed the appellant's reliance on certain court decisions, emphasizing that they were not applicable to the case. The court highlighted that the Sales Tax Appellate Tribunal's decision in favor of another assessee did not bind the state, and the government could take a different stance in similar cases.

The court further analyzed the exemption clause under Item 11(i) for cotton fabrics and Central Excise Tariff entries, noting that bed sheets were treated as separate items distinct from the cloth they were made of. The court concluded that Entry 10 of the Third Schedule was not intended to cover products like bed sheets, bed covers, towels, or napkins made from cloth. The court granted a partial waiver of interest to the appellant until the date of the Single Judge's judgment, provided the arrears were paid within two months.

In conclusion, the Writ Appeal was disposed of, affirming the Single Judge's decision that bed sheets made of powerloom cloth are not entitled to sales tax exemption under Item 10 of the Third Schedule to the KGST Act.