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TMI Blog1977 (12) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... ks was not taxable at 3 per cent and that the revising authority was justified in holding them taxable at 2 per cent. Since no one has appeared on behalf of the assessee, there will be no order as to costs. Reference answered accordingly. The judgment of the Court was delivered by MADON, J.-These are three references made by the Sales Tax Tribunal at the instance of the Commissioner of Sales Tax. The respondents in all these references are the same and two identical questions have been referred to us in each of these references. The material facts necessary for deciding these references are also the same, the only difference being that Sales Tax Reference No. 100 of 1976 is under the Central Sales Tax Act, 1956, in respect of the assessment period 1st April, 1958, to 31st March, 1959; Sales Tax Reference No. 101 of 1976 is under the Bombay Sales Tax Act, 1953, in respect of the assessment period 1st April, 1959, to 31st December, 1959; and Sales Tax Reference No. 102 of 1976 is under the Central Sales Tax Act, 1956, in respect of the assessment period 1st April, 1959, to 31st December, 1959. Sales Tax Reference No. 101 of 1976 is made under section 34(1) of the Bombay Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les were entitled to exemption but were taxable under the residuary entry, namely, entry 80 of Schedule B to the Bombay Sales Tax Act, 1953. Against these orders of the Deputy Commissioner of Sales Tax the respondents filed appeals to the Tribunal. Before the Tribunal the respondents, inter alia, contended that the Deputy Commissioner of Sales Tax had no jurisdiction to revise the said orders. They also contended that the decision of the Tribunal relied upon by the Deputy Commissioner of Sales Tax did not apply to the facts of the case. Both these contentions had also been taken by the respondents before the Deputy Commissioner of Sales Tax. There were certain other contentions also urged before the Deputy Commissioner of Sales Tax and taken by the respondents before the Tribunal, which it is unnecessary to set out. So far as the sales of bookbinding cloth were concerned, the Tribunal held that as by these impugned orders the Deputy Commissioner of Sales Tax revised only the orders of the Assistant Commissioner of Sales Tax and as sales of bookbinding cloth did not form the subject-matter of the appeal before the Assistant Commissioner of Sales Tax, the Deputy Commissioner of Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction?" Two points were urged before us by Mr. Jetly, the learned counsel for the applicant, namely, (1) that the Tribunal was in error in holding that this was a case of a mistake apparent from the record, and (2) that assuming this was a case of a mistake apparent from the record, the Commissioner of Sales Tax could nevertheless in exercise of his revisional jurisdiction under section 31(1) of the Bombay Sales Tax Act, 1953, revise any such mistake and that similarly any officer acting under the authority of the Commissioner of Sales Tax in that behalf delegated to him, as the Deputy Commissioner of Sales Tax did in this case, could validly revise and correct any such mistake. The first question which, therefore, falls to be decided is whether there was any mistake apparent from the record. It is now well-settled that mistakes apparent from the record which can be rectified are both mistakes of law and facts, but in the case of a mistake of law it must be a glaring and obvious mistake, such as, for instance, the levy of tax under a statutory provision which is subsequently held by the Supreme Court to be inoperative and ineffective or making an assessment which on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the President and two Members had to consider whether bookbinding cloth which belonged to the "medium variety" and was subsequently subjected to the processes of bleaching, dyeing and starching still remained in the category of medium cloth. In that case, the Commissioner of Sales Tax held that the conversion of ordinary medium cloth into a stiff, non-porous and highly moisture resisting article no longer capable at all of being put to uses to which medium cloth ordinarily is put represented a fundamental alteration and no longer fell under the said entry 11. Reversing the decision of the Commissioner of Sales Tax, the Tribunal held that it could not be said that the count of the cloth, after the process to which it was subjected, was altered, nor could it be said that after such processing it ceased to be cloth. It further held that even after the processing, the elements required in order that the cloth might be "medium cloth" within the meaning of the said entry 11 were still present and that however stiff or non-porous or highly moisture resisting article it might have become by its being subjected to the process of bleaching, dyeing, starching and calendering, it did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot required to consider the correctness of these reasons because we are not called upon to decide on merits whether the sales of rexine cloth made by the respondents were exempted by the said Bombay Sales Tax Laws (Special Exemptions) Act, 1957, because that question has not been decided by the Tribunal. What the Deputy Commissioner of Sales Tax did was that he relied upon another decision of the Tribunal in the case of Messrs. Jaisinh Waterproof Works v. State of Bombay10 S.T.D. 118. In that case, it was contended by the assessees that rubberised cloth was exempted by the said Special Exemptions Act. In support of their contention, the assessees relied upon the said earlier decision of the Tribunal in the case of Trambaklal Ratilal[1956] 7 S.T.C. 258. A Bench of two Members of the Sales Tax Tribunal, however, held that the composite article made up of mill-made or powerloom cloth and a rubber solution applied thereto could not be said to be cloth manufactured in a mill or on a powerloom and that this article was not generally known as handloom cloth but as rubberised cloth. They have assumed that it would be cloth but not cloth manufactured in a mill. It further appears that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bvious that the said decision in Messrs. Jaisinh Waterproof Works10 S.T.D. 118. is not on all fours with the respondents' case. Mr. Jetly, the learned counsel for the applicant, strongly relied upon this fact in order to make good his submission that this was not a mistake apparent from the record. We have carefully considered this submission of Mr. Jetly, examined the various decisions referred to by the Assistant Commissioner of Sales Tax and the Deputy Commissioner of Sales Tax and have found this contention of Mr. Jetly that the case of the respondents cannot be said to be on all fours with the case of Messrs. Jaisinh Waterproof Works10 S.T.D. 118. to be correct. We have also found his contention that the matter is highly arguable and debatable and that any authority or tribunal or court can come to either decision also to be correct. In this view of the matter, it cannot be said that this was a case of a mistake apparent from the record. So far as Mr. Jetly's alternative submission, namely, that even if this was a mistake apparent from the record the Deputy Commissioner of Sales Tax could in exercise of his suo motu powers of revision under section 31(1) of the Bombay Sales Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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