Kalyan Jyoti Sengupta, J.@mdashBy this application the petitioner before us has impugned the judgment and order dated 3rd January, 2011 passed by the learned West Bengal Taxation Tribunal by which the petitioner''s case No. RN 77 of 2009 has literally been dismissed. It appears from the records that the petitioner brought different issues before learned Tribunal, however before this Court the petitioner has challenged the judgment and order so far as it relates to classification of the products namely "Synthetic Wire Fabric". The short fact relevant to this matter is set out hereunder :-
The petitioner is a manufacturer of Synthetic Wire Fabric industries it is woven fabric of nylon polyester monofilament yarn. The product attracts excise duty, which was levied earlier under Schedule II of Central Excise Act, 1944 thereafter under present Act. In this case additional excise duty under the (Goods of Special Importance) Act, 1957 was levied under enactment of 1985 Tariff Act and thereafter no such additional duty to excise has been levied. Exemption was granted under the West Bengal Finance (Sales Tax) Act, 1941 (hereinafter 1941 Act) and the West Bengal Sales Tax Act, 1994 (hereinafter referred to 1994 Act) on sales of the said goods. The Sales Tax Authorities sought to withdraw such exemption from payment of tax after additional duty of excise ceased to be levied on the said goods. The proceedings for same assessment years between the petitioner and the Sales Tax Authorities are pending before this Hon''ble Court. In another proceeding before the West Bengal Commercial Taxes Tribunal for several assessment year was decided in favour of the petitioners holding that said goods were pliable textile fabric of artificial silk applicant herein was entitled to exemption from payment of duty as additional of excise under 1957 Act thereon was not condition precedent to such exemption. All the authorities below however in this case held against the petitioner, and the petitioner was denied relief of exemption from payment of the sales tax. All those authorities held that said goods were textile fabric of artificial silk but it is not lustrous and pliable like pure silk.
2. Mr. R.N. Bajoria, learned Senior Counsel appearing for the petitioner contends that his client being the manufacturer of the said goods is entitled to exemption u/s 24 of 1994 Act as it is classifiable under Serial No. 81. He submits that the said goods are textile fabrics of artificial silk irrespective of the use to which it is put and this is legally permissible on the strength for the judicial pronouncement of the Supreme Court in case of
(b)
(c)
Therefore all the judgments and orders inclusive that of the learned Tribunal ought to be set aside by this Court.
3. Learned counsel for the respondent Smt. Seba Roy submits that the product of the petitioner namely synthetic wire cloth/fabric itself is not covered under Entry No. 1 and the ingredients namely nylon and polyester by which the product is manufactured are not covered by the said entry. The product of the petitioner nor its ingredients thereof are not exempted from payment of sales tax straightway. Textile fabric is genus of which cloth is species. Tribunal came to finding that the goods of the petitioner being manufactured by the process of weaving and the manmade artificial fabric. So it is textile fabric in nature that means there is doubt to declare the disputed goods as textile fabric straightway the disputed clothes can be declared as textile fabric. If the disputed goods is same and identical as the artificial silk then its nature and characteristic features would be the same as artificial silk. Taxation Tribunal observed that it is not being as soft and lustrous as silk in the popular parlance test. The decision of the Constitution Bench of the Hon''ble Supreme Court reported in
4. She submits that there is another aspect of the matter for not allowing the claim of exemption is that First Schedule to the Additional Duty of Excise (Goods of Special Importance) Act, 1957 specifies the goods on which additional excise duty is leviable. Synthetic wire cloth has not been mentioned in the said schedule of the ADE Act. Hence no interference of the judgment and order of the authorities below are called for and this application should be dismissed.
5. After hearing the learned counsel for the parties and having gone through the impugned judgment and order of the learned Tribunal, bereft of all details we think in this matter moot question is whether the petitioner''s product synthetic wire fabric can be treated to be textile fabrics of all varieties mentioned in Serial No. 81 of the first schedule of the 1994 Act. We therefore set out the exact text of Entry 81 :
Textile fabrics of all varieties made wholly or partly of cotton, rayon, artificial silk or wool, including handkerchiefs, towels, bed-sheets, bed spreads, table cloth, napkins, dusters, cotton velvets and velveteen tapes, niwars and laces, whether embroidered or not, but excluding pure silk cloth, rubberized cloth, belting, pipes (including hose pipes) sataranchi, carpets and druggets, when such textile fabrics are manufactured or made in India.
6. It appears from the record that the petitioner has clearly stated the manufacturing process of its product. It is stated that the same is woven fabric and nylon and polyester monofilament yarns and no dispute with this regard has been raised. Even the learned Tribunal has accepted this admitted factual position. The learned Tribunal has examined the samples of the goods produced before it, who however, did not feel so soft lustrous like silk. So it was held that it is not artificial silk. We think the learned Tribunal''s approach is legally erroneous as the silk is one of the materials of the products. Therefore the attribute of lustree is not a relevant factor. What is relevant is whether the product satisfies the attributes of the textile fabrics or not. In this context Mr. Bajoria appropriately drawn our attention to the decision of the Supreme Court in the case of
The word "textiles" is derived from the Latin "texere", which means "to weave" and it means any woven fabric. When yearn, whether cotton, silk, woollen, 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. It may be cotton textile, silk textile, woollen textile, rayon textile, nylon textile or any other kind of textile. The method of weaving adopted may be the wrap and woof pattern as is generally the case in most of the textiles, or it may be any other process or technique. There is such phenomenal advance in science and technology, so wondrous is the variety of fabrics manufactured from materials hitherto unknown or unthought of and so many are the new techniques invented for making fabric out of yarn that it would be most unwise to confine the weaving process to the warp and woof pattern. Whatever be the mode of weaving employed, woven fabric would be "textiles". What is necessary is no more than weaving of yarn and weaving would mean binding or putting together by some process so as to form a fabric.
In the said case factually Supreme Court found that dryer felt could meet the tests laid down by the Supreme Court and it was held that the dryer felts are textiles.
7. In this case it was found that the product of the petitioner is woven product however upon examining the materials tests are satisfied. We think that the petitioner''s products comes within the purview of textile fabrics. The phrase "textile fabrics of all varieties" has sweeping coverage of every description as far as ingredient is concerned. In an opinion trustee of silk is not the material nor relevant in this matter. It appears that learned Tribunal has been swayed by the decision of the Constitution Bench of the Supreme Court in case of
In order to attract the benefit of the exemption conferred by entry 6 of Schedule I of the Act, the goods must fall within the description ''all varieties of cloth''.
What would be the cloth has been stated by the Supreme Court after considering the dictionary meaning and other decisions of the Supreme Court is as follows :-
Going by the meaning given in dictionaries as well as by its generally accepted popular connotation ''cloth'' is woven, knitted or felted material which is pliable and is capable of being wrapped, folded or wound around. It need not necessarily be material suitable for making garments because there can be ''cloth'' suitable only for industrial purpose; but nevertheless it must possess the basic feature of pliability....
At page 324 of the report the Supreme Court observed that there is no conflict at all between the decision of the Apex Court in case of Porritts and Spencer (Asia) Limited v. State of Haryana and the decision in case of
8. It is therefore clear from the aforesaid case that reliance was placed by the learned Tribunal is a goods of a cloth which is also a textile items. The textile is a general term whereas cloth is the species namely products thereof. In this case this characteristics and attributes are satisfied. Learned Tribunal has not found that it is not a pliable. It is recorded that it is pliable but not lustrous like a silk. We think artificial silk is one of the items of the textile fabrics in case if it is claimed exclusively as an artificial silk then obviously the element lustrous may be a relevant but we have already held it is textile items.
9. We, therefore, of the view that the learned Tribunal has clearly fell in error not accepting the petitioner''s product as being an item as mentioned in Entry 81.
10. By the amendment what was the history of bringing back of taxability etc. is not the relevant factor in the matter. The argument advanced by both the learned counsel in this context are not relevant. The legislative history is required to be considered when any enactment is sought to be challenged. Therefore the argument advanced in this direction is not relevant at all and this is not considered. We, therefore, allow the writ petition and reverse the judgment of the learned Tribunal and held as above.
11. There will be no order as to costs.
Joymala Bagchi, J.
I agree.
