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TMI Blog1976 (4) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) if it contains 40 per cent or more by weight of wool; (b) if it contains 40 per cent or more by weight of silk; or (c) if it contains 60 per cent or more by weight of rayon or artificial silk;". Under rule 3(28)(a) and (b) of the Bengal Sales Tax Rules, 1941, framed under the Bengal Finance (Sales Tax) Act (6 of 1941), and as was in force up to 6th April, 1975, it was provided as follows: "3. In calculating his taxable turnover a registered dealer may deduct from his turnover the following, namely: (28)(a) Sales of cotton fabrics, rayon or artificial silk fabrics, woollen fabrics and tobacco other than cigarettes; (b) Sales of cotton fabrics, rayon or artificial silk fabrics and woollen fabrics when dyed or printed after they come out of the mill/loom; (c) Sales of mill-made cotton fabrics embroidered after they come out of the mill. Explanation.-In this clause, the expressions 'cotton fabrics', 'rayon or artificial silk fabrics', 'woollen fabrics' and 'tobacco' respectively have the same meaning as in items 19, 22, 21 and 4 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944)." The facts shortly are as follows: Petitioner No. 2, S. Yahy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ton fabrics" is wide enough to include rubberised cotton fabrics. It is contended that by taking such a narrow view the authorities have acted in express violation of the said statute. The authorities concerned understood the matter all throughout in the correct way up to the quarter ending 1969 and, on that basis, granted such exemption in respect of such rubberised cotton belting or fabrics, but it would seem that since the publication of a judgment' of the Gujarat High Court touching this point the authorities have been influenced by the same to change their mind to the prejudice of the petitioners. The petitioners thereafter preferred separate appeals both under the State Act as also under the Central Act before the Assistant Commissioner of Commercial Taxes, Barrabazar Circle, respondent No. 1 herein. The said two appeals were disposed of by a common order made by the said respondent No. 1 by his order dated 7th August, 1975, whereby the said two appeals were rejected and the orders of respondent No. 2 passed in respect of the said assessment for the said four quarters for 1970 were confirmed. The petitioners thereupon moved this writ court under article 226 of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment is concerned. It is contended that both the Commercial Tax Officer as also the Assistant Commissioner, Commercial Taxes, have applied the law as laid down by the said Gujarat High Court case in Hind Engineering Co., Rajkot v. Commissioner of Sales Tax[1973] 31 S.T.C. 115., and have been influenced by the said decision and failed to apply their mind to ascertain the correct law as laid down by the said judgment and thereby exceeded their jurisdiction by failing to apply the statutory provisions of the Bengal Sales Tax Rules, 1941, which was not considered in the said Gujarat High Court case(1). Even apart from that, Mr. Chakravarti, the learned counsel, drew my attention to paragraph 29 of the petition, wherein the petitioners have stated that they have no further effective, adequate, speedy and alternative remedy. Accordingly, it would be futile and unnecessarily expensive to pursue such remedy where the same results would be bound to follow. The petitioners have also made averments in the petition regarding the non-applicability of the said decision of the Gujarat High Court to the facts and circumstances of this case and about the respondents' acting improperly, unjustly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Finance (Sales Tax) Act, 1941, and for obtaining stay pending disposal of the revision application further court-fee and onerous procedure has been prescribed. The right thereby given is, therefore, in no sense a remedy that article 226 of the Constitution of India provides." Mr. Chakravarti points out that regarding the period subsequent to 1970 and up to 6th April, 1975, it has been pleaded that the position is exactly similar both in points of fact and in points of law and, as such, the relief by way of injunction has been prayed for in respect of the subsequent periods to prevent the multiplicity of proceedings. The facts in respect of rubberised cotton belting are the same in respect of the entire period up to 6th April, 1975, and, as such, the relief should be the same in respect of the said entire period. Under similar circumstances such relief has been granted by this court and, particularly, in National Rubber Works v. Commercial Tax Officer Matter No. 161(W) of 1964-(Calcutta High Court). as also in the case of Dilip Kumar Mukherjee v. Commercial Tax OfficerA.I.R. 1965 Cal. 498. The petitioners have made averments regarding the aforesaid facts in paragraph 3(b) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92 (S.C.)., the judgment whereof was delivered on 4th December, 1969, that is, a few months prior to the judgment in Hirday Narain's case(1). It is contended that the High Court should follow the latest opinion of the Supreme Court whereby the Supreme Court had revised the earlier opinion as laid down in the case of Sovachand Mulchand v. Collector of Central Excise and Land CustomsA.I.R. 1968 Cal. 174. To my mind, quite apart from the above principles as laid down by the Supreme Court, the preliminary point cannot succeed, because there are enough materials on record wherefrom the court is satisfied that there is justification for the petitioners to apply before the writ court before exhausting the remedy as provided under the statute. I am satisfied that in the circumstances as stated hereinabove it is futile on the part of the petitioners to wait for the decision in respect of the several quarters' assessments, where identical question would be involved. The petitioners in the given circumstances have undoubtedly the more speedier and less expensive remedy in the writ jurisdiction of this court. I am satisfied also that the facts in respect of the period from January, 1970, till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned therein in manufacturing the articles along with cotton. It would be noticed that the expression "cotton fabrics" has been defined under several other categories as well, but, for the purpose of this case, it is not necessary to go into the same. The opening words of the definition are: "means all varieties of fabrics" and significantly such fabrics must be manufactured fabrics. It is to be noticed that the expression "either wholly or partly from cotton" would signify that the fabrics so manufactured must contain some portion of cotton. The required percentage has not been mentioned there. But, in respect of certain fabrics, where cotton would be mixed with wool, silk, rayon or artificial silk, they must not exceed the percentage of such wool, silk, etc., as specified thereafter. In other words, if such articles, such as wool, silk, etc., as mentioned thereunder, would not exceed such percentages, then the same so mentioned would come within the meaning of the expression "cotton fabrics". It is an artificial definition in the sense that a special meaning has been attached to the expression "cotton fabrics" and, as such, the ordinary common sense or dictionary meaning would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efinition would be complied with, there is an end of the matter. It would appear from the explanation to rule 3(28) of the Bengal Sales Tax Rules, 1941, that the expression used therein "have the same meaning as in item 19..." In other words, the expression "cotton fabrics" within the meaning of the Bengal Sales Tax Rules would also mean all varieties of fabrics manufactured either wholly or partly from cotton with the inclusion of the items as enumerated under item 19 and with the exclusion of the items mentioned thereunder. It has further to be remembered that in so far as the assessment in the case before me is concerned, it relates to four quarters beginning from January and ending with December, 1970. There is no dispute before me as to the applicability of rule 3(28) of the Bengal Sales Tax Rules, 1941, and item 19 of the First Schedule to the Central Excises and Salt Act, 1944, in respect of the assessment in question before me. Keeping the above in mind, the Gujarat case[1973] 31 S.T.C. 115. has to be considered because it has to be noted that the said decision was made on the basis of the Bombay Sales Tax Act, 1959, and the assessment in question was in respect of the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... publication issued by the Department of Commercial Intelligence and Statistics, Government of India. It was published on 30th June, 1967, and sets out the rates of excise duty on excisable goods as on 30th June, 1967. Item 19 of the First Schedule is found at page 74 of this publication and at page 78 of the said publication, the notification of the Government of India under which some varieties of 'cotton fabrics' have been exempted from 'so much of duty as was in excess of the duty' specified in the said notification, is reproduced. The notification does not relate or refer to the payment of the additional excise duty, if any, leviable thereon. Besides, it appears from the text of the notification that the notification granting such exemption was first issued on 1st March, 1966, and that it was amended from time to time and the last of such amendment was made by the notification dated 26th May, 1967. It would, therefore, appear that there is nothing to show that when item 19 was incorporated by reference into the Bombay Sales Tax Act by the notification dated 6th April, 1962, rubberised cotton fabrics were treated as covered by the said item. The subsequent additions or alteratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be included in the expression "tobacco" of the category of chewing tobacco within the meaning of item 9 of the First Schedule to the Central Excises and Salt Act. 1944, in spite of the fact that for the purpose of manufacturing zarda various other ingredients such as essence jafran and tabak, besides tobacco cuttings were used to make it an attractive finish. It was held that even though thereby the character was changed yet it came within the meaning of item 9 of the First Schedule to the Act of 1944. Similarly, in the case of Tungabhadra Industries Ltd., Kurnool v. Commercial Tax Officer, Kurnool[1960] 11 S.T.C. 827 at 835 (S.C.)., the Supreme Court considered the question whether hydrogenated groundnut oil (commonly called vanaspati) was "groundnut oil" within the meaning of rule 18(2) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. The Supreme Court after considering the matter from all these aspects, held on this point as follows: "There is no use to which the groundnut oil can be put for which the hydrogenated oil could not be used, nor is there any use to which the hydrogenated oil could be put for which raw oil could not be used. Similarly, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arat case in B. Dar Laboratories v. State of Gujarat[1968] 22 S.T.C. 160. and held that gudakhu came within the definition of manufactured tobacco and, as such, was tax-free. The only question which is left open is whether the relief should be granted to the petitioners in respect of the assessments for the period subsequent to December, 1970, up to 6th April, 1975. Such reliefs have been granted in the case of Dilip Kumar Mukherjee v. Commercial Tax OfficerA.I.R. 1965 Cal. 498. To my mind, in this case the same facts and the same points of law are involved in respect of all these years and the matter dependent only on the construction of the statute and, the same having been done here, the petitioners should be entitled to get relief up to 6th April, 1975. In my opinion, Mr. Chakravarti's contentions are acceptable. Under those circumstances, I hold that "rubberised cotton fabrics" come within the meaning of the expression "cotton fabrics" as defined by the Bengal Sales Tax Rules, 1941, and are exempted from sales tax under rule 3(28) of the Bengal Sales Tax Rules, 1941, and, as such, the disallowance of exemption on the said turnover by the respondents is without jurisdiction, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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