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TMI Blog2022 (12) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... - - Dated:- 15-12-2022 - THE CHIEF JUSTICE DR. S. MURALIDHAR AND MURAHARI SRI RAMAN JUDGE Advocates appeared in the case: For the Petitioner : Mr. Chitta Ranjan Das, Advocate For the Opposite Party : Mr. Sunil Mishra, Additional Standing Counsel (CT GST Organisation) JUDGMENT Murahari Sri Raman, J.- 1. The petitioner, a proprietorship concern, assailed Order dated 22nd September, 2017 in Second Appeal No.205(ET) of 2014-15 passed by the learned Odisha Sales Tax Tribunal, Cuttack (for short, OSTT ) by way of revision petition under Section 19 of the Odisha Entry Tax Act, 1999 (referred to as, OET Act ) directed against Order dated 30.09.2014 of the Deputy Commissioner of Sales Tax, (Appeal), Bhubaneswar Range, Berhampur in connection with Audit Assessment framed under Section 9C of the OET Act by the Sales Tax Officer, Bhubaneswar-II Circle, Bhubaneswar pertaining to tax periods from 01.04.2006 to 30.09.2011. Question of law framed by this Court: 2. While entertaining the revision petition, this Court vide Order dated 3rd May, 2018 framed the question of law that whether SAREE, PATTA, DHOTI and GAMUCHHA fall under Entry Serial No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Limited Ors., (2008) 14 VST 9 (Gau), said word is to be construed to be restrictive. Therefore, he would submit that the term textile in the said entry is to be restricted to the words cotton fabrics and ready-made garments which follow it. Had the intention to tax entire range of textile products , the words cotton fabrics and ready-made garments would not have been placed in the said Entry No.3 of Part-II of Schedule. 4.1. Further plea of learned counsel for the petitioner is that aforesaid Entry No.3, Part-II of Schedule when pitted against Entry No.5, Part-I of same Schedule, it must mean that the intent under the OET Act for levy of tax is restricted to those goods specified therein, namely pure silk fabric, silk, artificial silk yarn, raw silk . Contention of the opponent-Revenue: 5. Per contra, Sri Sunil Mishra, learned Additional Standing Counsel (CT GST Organisation) submitted that the learned OSTT has flawlessly decided the issue at hand and correctly interpreted the classification of commodity vis- -vis leviability of entry tax on the goods namely saree, patta, dhoti, gamuchha . 5.1. The learned Additional Standing Counsel has pressed into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is fortified in its reasoning by the meaning given to the word textile by the Hon ble Apex Court in the case of Porritts (supra) as under: The word 'Textile is derived from the Latin texere' which means to weave and it means any woven fabric. When yarn, whether cotton, silk, woolen, rayon, nylon or of any other description or made out of any other material is woven into a fabric, what comes into being is a textile and it is known as such. The Apex Court further held that whatever be the mode of weaving employed, woven fabric would be textiles . *** In such view of the matter, the impugned order is liable to be interfered with and the tax liability to be assessed accordingly. The order of the Assessing Authority to the above extent is hereby confirmed. 5.2. The learned Additional Standing Counsel, therefore, urged that clear and loud reasoning ascribed by the learned OSTT repelling the contentions of the petitioner raised before it and distinguishing the ratio of case laws insisted upon to be applied does not deserve indulgence by this Court in the instant revision. Discussion and reasons: 6. The relevant entries fall for consideration in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the petitioner. The learned Tribunal came to hold that: 8. *** In the case of Sterlite Optical Technologies Vrs. Oil India Limited and Ors., (2008) 14 VST 9 (Gau), the Hon ble Gauhati High Court was seized with the question whether the word including used in Entry No.4 of Assam Entry Tax Act, 2001, is exhaustive or used in a restrictive sense and in such context, it was held that sound transmitting equipment including telephones, mobile phones, pagers and components and parts thereof shall be treated as inclusive to mean only those products as has been stated in the entry itself. In the present case, however, the situation is different inasmuch as different types of textile products have been included under different parts of the schedule with reference to the rate of taxation as has been discussed in detail herein before. Therefore, the restrictive meaning used for the word including occurring under Entry 4 of the Schedule to Assam Entry Tax Act cannot be applied to the entries under Part-I and II of the Schedule to the OET Act. 7.3. In Krishi Utpadan Mandi Samiti Vrs. Shankar Industries, 1993 Supp. (3) SCC 361 it is laid down that where the Legislatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties, namely, saree, patta, dhoti and gamuchha, in wider sense it is understood that they all fall within the connotation of the term textile product . 8. Therefore, this Court further has delved into the meaning of textile product for arriving at appropriate conclusion in the present case. 8.1. In Porritts Spencer (Asia) Ltd. Vrs. State of Haryana, (1978) 42 STC 433 (SC), while deciding whether dryer felts fell within the category of all varieties of cotton, woolen or silken textiles , the observation of the Hon ble Supreme Court runs as follows: Now, the word textiles is not defined in the Act, but it is well-settled as a result of several decisions of this Court, of which we may mention only a few, namely, Ramavatar Budhaiprasad Vrs. Assistant Sales Tax Officer, Akola, [1961] 12 STC 286 (SC) = AIR 1961 SC 1325; Motipur Zamindary Co. Ltd. Vrs. State of Bihar, [1962] 13 STC 1 (SC) = AIR 1962 SC 660 and State of West Bengal Vrs. Washi Ahmed, [1977] 39 STC 378 (SC) = [1977] 3 SCR 149 , that in a taxing statute words of everyday use must be construed not in their scientific or technical sense but as understood in common parlance. *** There can, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ric? The Mercury Dictionary of Textile Terms defines fabric as a term which covers all textiles no matter how constructed, how manufactured, or the nature of the material from which made, and the expression textile is described as: any product manufactured from fibres through twisting, interlacing, bonding, looping, or any other means, in such a manner that the flexibility, strength, and other characteristic properties of the individual fibres are not suppressed. The Man-Made Textile Encyclopaedia (1959) defines fabric as: a collective term applied to cloth no matter how constructed or manufactured and regardless of the kind of fibre from which made. In structure it is planar produced by interlacing yarns, fibres or filaments. Textile fabrics include the following varieties, bonded, felted, knitted, braided and woven. The Fairchild s Dictionary of Textiles (1959) says that fabric is: a cloth that is woven or knit, braided, petted, with any textile fibre ... and textile is said to refer to: a broad classification of any material that can be worked into fabric, such as fibres and yarns including woven and knitted fabric, felt, netted fabric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cases have purchased excise duty paid handkerchief from the Mill and without subjecting those to any process sold it in the market. The handkerchiefs have been sold in the same condition in which it had been supplied to the assessee from Mills. The further fact and position has not been denied that the handkerchiefs have been produced wholly out of cotton. In the wake of the aforesaid fact and position, the Division Bench opined as under: *** It is not in dispute that the handkerchiefs have been manufactured wholly out of cotton. The mere fact that as part of the process of manufacture the edges of the cloth have been stitched will not in any way affect its character as a cotton fabric. In fact such process of stitching is essentially involved in the manufacture of several of the items enumerated in the inclusive portion of the definition of cotton fabrics contained in entry No. 19 of the First Schedule to the Central Excises and Salt Act, for example, bed sheets, bed spreads, counterpanes, tablecloths, etc. it is not therefore possible to accept the plea put forward by the learned Government Pleader that the fact that the edges of the G.S.T.R. Nos. 65 to 67 of 1991 kerchi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r naturally or as a result of effort or work. Kulfi is not yielded naturally from milk, but is produced as a result of evaporating the milk to a certain extent till it becomes viscid, and the addition of sugar, dry fruits and essence. Dry fruits, sugar and essence are added to give sweetness and flavor to the viscid milk and form a very small constituent of kulfi. The main constituent is milk. Thus, kulfi is nothing else but a milk product and is exempt from tax under both the notifications. 8.7. The Hon ble Supreme Court in Alladi Venkateswarlu Vrs. State of Andhra Pradesh, (1978) 2 SCC 552 considered the question whether Atukulu (parched rice), and Muramaralu (puffed rice) are rice within the meaning of Entry 66(b) of Schedule I to the Andhra Pradesh General Sales Tax Act, 1957? and held as follows: 17. We think that, on a parity of reasoning the term rice as ordinarily understood in English language would include both parched and puffed rice. 8.8. In the same analogy when saree, patta, dhoti, gamuchha are considered, they are the products of textile . They do not lose essential characteristics of fabric. Thus, the expression textile products incl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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