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TMI Blog1975 (11) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... aye 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 text ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.). 142., 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 ExportsA.I.R. 1975 S.C. 1208,, Sales Tax Officer, Jodhpur v. M/s. Shiv Ratan G. Mohatta[1965] 16 S.T.C. 599 (S.C.); A.I.R. 1966 S.C.and Hari Prasad Mulshankar Trivedi v. V.B. RajuA.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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