Sky Industries Limited and Others vs Commissioner of Commercial Taxes and Others

K. Chandru, J.—These batch of writ petitions were grouped together and posted before this Court on being specially ordered by the

honourable Chief Justice by an order, dated October 29, 2009.

W.P. Nos. 11761 of 2006, 13808 and 13809 of 2008 and 19138 and 19139 of 2009 were heard on November 17, 2009 and orders were

reserved. Subsequently, W. P. Nos. 19261 and 19262 of 2006 came to be heard on November 19, 2009. Since all the writ petitions have raised

a common question, a common order is passed.

W.P. No. 11761 of 2006 was filed by one M/s. Sky Industries Ltd., seeking to set aside the clarification order, dated April 18, 2006 issued by

the Commissioner of Commercial Tax (for short, ""the COCT""), Chennai. The COCT, by the impugned communication, dated April 18, 2006

issued a clarification No. 66/2006 in respect of the petitioner holding that the ""hook and loop tape fastener"" otherwise called ""Velcro fastener"" is an

article of narrow woven fabrics, falling under excise chapter heading No. 58.07. It was clarified that it was taxable at 12 per cent under residuary

entry 40, Part D, First Schedule to the Tamil Nadu General Sales Tax Act, 1959 and also the earlier clarification dated October 31, 2005 was

reiterated. If it is imported it is taxable at 20 per cent under entry 9 of the Eleventh Schedule to the TNGST Act. The said writ petition was

admitted on April 26, 2006. Pending the writ petition, an interim stay was granted.

Thereafter, W. P. Nos. 19261 and 19262 of 2006 came to be filed by M/s. Aaron India, seeking to challenge the orders, dated May 24, 2006

and March 31, 2006. In the first writ petition, the impugned order was pursuant to the communication sent by the CTO, Ayanavaram Assessment

Circle, Chennai stating that the dispute regarding is disallowance of exemption on sales of hook and loop tape fasteners to a sum of Rs. 32,04,104

and assessed to tax at 12 per cent and the petitioner''s claim was rejected on the ground that the dealers have effected local purchase of hook and

loop tape fasteners from the unauthorised dealers. They have purchased commodity for Rs. 22,44,670 from M/s. Sky Industries Limited

(petitioner in W. P. No. 11761 of 2006) and the burden of proof for sufferance of tax lies with the dealers u/s 10. Therefore, the earlier order

passed by the authority cannot be reconsidered.

In the second writ petition, the challenge is to the assessment order dated March 31, 2006, wherein they were levied 12 per cent interest on

purchase of hook and loop tape fasteners and also a penalty was imposed. These two writ petitions were dismissed by the learned judge of this

Court by his common order, dated June 26, 2006 on the ground that they have a right of remedy by way of an appeal. A writ appeal was filed

before a Division Bench in W. A. No. 921 of 2006. The said writ appeal came to be disposed of by holding that since seller''s writ petition, i.e.,

W. P. No. 11761 of 2006 has been admitted by this Court and an interim stay was granted, these two writ petitions ought not to have been

dismissed. Therefore, the order of the learned single judge was set aside and the matter was remanded for a fresh disposal along with W. P. No.

11761 of 2006.

Subsequently, W. P. Nos. 13808 and 13809 of 2008 came to be filed by M/s. Jain & Co. Both the writ petitions were admitted on June 13,

2008. Pending the writ petitions, an interim stay was granted. Both the writ petitions were also directed to be posted along with W. P. No. 11761

of 2006. In that case, the petitioner had challenged the orders dated April 10, 2008. These were the orders passed by the Appellate Assistant

Commissioner, Commercial Tax II, Chennai in APCST No. 6 of 2007 and AP No. 99 of 2007. By the said order, the appeal made against the

order of DCTO II, Pethanayakenpet North in respect of assessment year 2004-05, dated December 29, 2006 was confirmed. It was held that

they are not eligible for exemption under Sales Tax Act as per entry 8(vi), Part A of the Third Schedule to the TNGST Act. Therefore, the

assessment was made on the turnover at the rate of 12 per cent under the TNGST Act and 12.6 per cent under the CST Act as unclassified item

and both appeals were dismissed.

The very same petitioner filed W. P. Nos. 19138 and 19139 of 2009. In these writ petitions, the challenge is to the order of the first

respondent-Commercial Tax Officer, Bethanayakanpet North Assessment Circle, dated June 16, 2008 in CST. 95349/2003-04 and TNGST

1140932/2003-04. In both the cases, the assessment orders were under challenge in respect of the same subject-matter. In those two writ

petitions, notices were ordered to the respondents and an interim stay was granted.

On behalf of the DCTO, Pethanayakanpet North, a common counter affidavit, dated November 9, 2009 was filed.

Heard the arguments of Mr. N. Prasad and Mr. K. Balasubramanian, Learned Counsel for the petitioners and Mr. Haja Nazruddin, Special

Government Pleader (Taxes) assisted by Mr. Radhakrishnan and Mr. J. Ganesan, learned Government Advocates for Tax.

According to the petitioners, the entire issue arose out of the order passed by the COCT u/s 28A, dated April 18, 2006. The operative

portion of the order reads as follows:

From the perusal of the sample furnished by them, it is seen that it is commercially called as ''Velcro tape''. It is a pair of nylon tapes having

adhesive character by a mechanism of tiny hooked fibres on one surface that fasten easily to other surface. This paired device is used in clothing,

carpentry, etc. In other words this article named ''Velcro fastener'' consists of two strips of nylon fabric one having tiny hooked threads and the

other a coarse surface which form a strong bond when pressed together.

Also it is seen that not all narrow woven fabrics are a specific mention under the sub-heading 58.06 classified under excise. There is a clear

exclusion clause: ''other than goods of heading No. 58.07''. The relevant excise tariff headings are extracted as below:

The extract of tariff headings.

58.06 Narrow woven fabric, other than goods of heading No. 58.07;

narrow fabrics consisting of warp without weft assembled by

means of adhesive (bolducs).

5806.10 Woven pile fabrics (including terry towelling and similar

terry fabrics) and chenille fabrics

58.07 Label, badges and similar articles of textile materials in

the piece, in strips or cut to shape or size, not

embroidered.

Thus goods of heading 58.07 are taken away from the scope of heading 58.06 for excise and AED purposes. Any ''articles of textile materials''

even if they are made/assembled from narrow woven textile materials, by virtue of their finding place under heading 58.07, are specifically

excluded from heading 58.06. There cannot be any doubt that ''Velcro'' (this expression is a trademark name) ''fastener'' is an article made of

narrow woven-fabrics. In other words, ''Velcro fastener'' is not narrow woven fabric simpliciter; it is an article made of narrow woven fabric.

Inasmuch as the commodity in question, i.e., ''hook and loop tape fastener'' otherwise called ''Velcro fastener'' is an article of narrow woven

fabrics falling under excise chapter heading No. 58.07, it is clarified that it is taxable at 12 per cent under residuary entry No. 40, Part D, First

Schedule to the TNGST Act, 1959 by reiterating the clarification, dated October 31, 2005. If imported it is taxable at 20 per cent under entry No.

9 of the Eleventh Schedule to the TNGST Act, 1959.

According to the petitioners, Section 8 of the Tamil Nadu General Sales Tax Act, 1959 (for short, ""the TNGST""), provides for exemption in

respect of goods specified in the Third Schedule and serial No. 8(vi), the Third Schedule specifies narrow woven fabrics described against the

heading 58.06 in column 3 to the First schedule of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (for short, ""the ADE

Act, 1957""), which reads as follows:

THE THIRD SCHEDULE

Goods exempted from tax by Section 8

Description of goods

(Effective from March 27, 2002)

PART A

The following goods produced or manufactured in India as described in column (3) against the relevant heading in column (1) of the First Schedule

to the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (Central Act 58 of 1957)

(''1 to 7 omitted'')

8(i) Woven pile fabrics and chenille fabrics of wool, cotton or man-made fibres as described against the heading ''58.01''.

(ii) Terry towelling and similar woven terry fabrics and tufted textile fabrics as described against the heading ''58.02''.

(iii) Gauze as described against the heading ''58.03''.

(iv) Lace in the piece in strips or in motifs of cotton or man-made fibres as described against the heading ''58.04''.

(v) Embroidery in the piece, in strips or in motifs as described against the heading ''58.05''.

(vi) Narrow woven fabrics as described against the heading ''58.06''.

Section 8 of the TNGST Act provides for a general exemption from tax which reads as follows:

Exemption from tax.--Subject to such restrictions and conditions as may be prescribed, a dealer who deals in the goods specified in the Third

Schedule shall not be liable to pay any tax under this Act in respect of such goods.

Appendix 4 to the Additional Duties of Excise (Goods of Special Importance) Act in the First Schedule, heading 5806 deals with narrow

woven fabrics other than goods of heading 5807, wherein additional duties rates are prescribed.

Even as early in the year 1989, the Special Commissioner and Commissioner for Commercial Tax earlier by a communication dated April 7,

1989 addressed to all Deputy Commissioners for Commercial Tax including enforcement wing sent a circular which reads as follows:

In the references cited, it has been clarified that Velcro-brand hook and loop tape fasteners are taxable at five per cent multi-point.

The above clarification was re-examined in the light of the opinion given by the Collector of Central Excise, Madras Ref. IV/16/52/89 CXI

dated March 10, 1989. According to the Central Excise Tariff of India Act, 1985, the commodity, hook and loop tape fasteners are classifiable

under heading 5801.30 of the Central excise tariff. The above articles attract additional excise duty in lieu of sales tax. In view of this, it is now

clarified that ''hook and loop tape fasteners'' are not liable to tax under the Tamil Nadu General Sales Tax Act, 1959.

The earlier clarification issued in this office Ref. Acts Cell II/ 50273/88 dated December 12, 1988 and 4490/89 dated February 2, 1989 is

hereby cancelled.

Notwithstanding this clarification, since the Department insisted upon imposition of 12 per cent tax, a clarification was sought for by the

petitioner in W. P. No. 11761 of 2006. In support of their stand, the petitioner enclosed the following documents:

(a) A technical report dated July 22, 1998 given by the Silk and Art Silk Mills'' Research Association, Bombay, certifying that hook and loop

fastener was a narrow woven fabric.

(b) A copy of the approved classification list filed by the petitioners under Rule 173B of the Central Excise Rules, 1944, where the classification of

the petitioner''s product as one falling under chapter 58.06 which had been approved by the Central excise authorities.

(c) A copy of the proceeding dated October 16, 2000 of the Commissioner of Commercial Taxes, Thiruvananthapuram, clarifying that hook and

loop tape fastener fell under chapter 58.06 to the Schedule to the Additional Duties of Excise Act.

(d) A copy of the proceeding dated July 15, 2000 of the Additional Commissioner (CT) Calcutta, clarifying that hook and loop tape fastener fell

under chapter 58.06 to the Schedule to the Additional Duties of Excise Act.

(e) A copy of the order of the Sales Tax Appellate Tribunal, U.P., Lucknow, in A.P. No. 13 of 1991 dated January 21, 1992 holding that hook

and loop tape fastener fell under chapter 58.01 (presently 58.06) of the Schedule to the Additional Duties of Excise Act.

It was also brought to the notice of the COCT that the Government of India by a Notification No. 76/05, dated July 25, 2005 imposed anti

dumping duty on hook and loop tape fasteners, treating it as a narrow woven fabrics falling under heading 58.06. It is also claimed that the Ministry

of Industries, Government of India, certified that hook and loop tape fasteners falling under heading 58.06. However, in the impugned clarification,

the COCT clarified that hook and loop tape fasteners falling under heading 58.07. Heading 58.07 reads as follows:

Labels, badges and similar articles of textile materials, in the piece, in strips or cut to shape or size, not embroidered.

It is ununderstandable as to how the COCT can treat a specific commodity as residuary commodity of being labels or badges or similar article

of textile material when there is already specific entry in 58.06 is available in the Additional Duties of Excise (Goods of Special Importance) Act,

1957. It is also claimed that in all other States such as West Bengal and Kerala, the very same commodity was treated as falling under heading

58.06 and not liable for any sales tax since additional excise duties are charged. Initially when COCT by an order dated October 31, 2005

rejected the case, a writ petition was filed in W. P. No. 40084 of 2005. This Court by an order dated December 23, 2005 found that it was a

non-speaking order and directed the COCT to consider the issue afresh after taking into account the other relevant circumstances. It is pursuant to

the said direction, the impugned order came to be passed.

In assailing the conclusions reached by the COCT, the Counsel for the petitioners contended that the classification adopted by the petitioner

was accepted by the Central excise authority that the product in question is no way different from the narrow woven fabric. That product was also

known as Velcro. It is claimed that Velcro was a brand of M/s. Velcro, USA, a company which pioneered the concept of hook and loop tape

fastener. The petitioners are marketing their product under the brand ""Sky Magic"". In the clarification for exemption under the Third Schedule,

prima facie opinion of the excise authority alone will count. One has to find out whether for the purpose of exemption under the Third Schedule, the

product is falling under Chapter 58.06. When the petitioners claim that it falls under 58.06, it would not be open to the COCT to bring it under

Chapter 58.07, which is not only done without notice, but it is a classification based on ipse dixit. Chapter 58.07 deals with the excise of

garments''. But hook and loop tape fasteners manufactured and marketed by the petitioner in W.P. No. 11761 of 2006, used in the industry to

perform the function of fastening. The product is used in the leather, garments, orthopedic, luggage industry and telecommunication industry.

Therefore, it was claimed that the conclusion arrived at by the COCT was totally repugnant to the rule. It was claimed that the order was a non-

application of mind, arbitrary and violative of Article 14 of the Constitution.

In fact, the very same Department has been accepting vide its earlier circular referring to that the commodity in question does not attract any

tax under the TNGST Act. The first respondent''s finding in the impugned clarification is that the hook and loop tape fasteners, which was Velcro,

was commercially different from narrow woven fabrics. This conclusion was drawn applying an incorrect test user. It has always been held that the

user test is not conclusive for the purpose of classification. The directive issued by the Government of West Bengal, dated July 15, 2005 in respect

of the very same hook and loop tape fastener is produced and it reads as follows:

With reference to the above, this is to inform you that hook tapes and loop tapes, known as hook and loop tape fasteners and also as Velcro,

made from nylon, are nothing but woven fabrics of nylon. Therefore, such hook tapes and loop tapes, manufactured or made in India, are covered

by the description of goods, ''textile fabrics made wholly or partly of cotton, rayon, artificial silk or wool manufactured or made in India, other than

those specified elsewhere in any other Schedule'', specified in column (2) against serial No. 37A in column (1) of Schedule A, appendix A,

appended to the West Bengal Value Added Tax Act, 2003.

The impugned order insofar as bringing it under entry 58.07 is totally repugnant. If an entry is already covered by the specific entry, the

question of relegating it as residuary entry will not arise. Since in view of the clarification of the other authorities will not apply, the other assessment

officer''s assessment in their independent judgment and when a writ petition came to be filed, the need for this Court to decide the validity of the

clarification issued u/s 28A of the TNGST Act than remanding the matter to the authorities has been reiterated by the courts in several instances.

Mr. N. Prasad, Learned Counsel for the petitioners brought to the notice of this Court a judgment of the Supreme Court in Innamuri Gopalan

and Others Vs. State of Andhra Pradesh and Another, and relied on the following passage found in paragraph 10, which reads as follows (at page

749 of STC):

...The next question would be as to whether the exemption to which the appellants were manifestly entitled under the first paragraph of the

notification they have been deprived of by the operation of the proviso. If the proviso on its proper construction, as we have endeavoured to point

out earlier, cannot apply to cases where an additional duty of excise is not leviable under Clause 3 of the Bill it would follow that the operation of

the exemption is unaffected by the proviso. The appellants were therefore entitled to the relief from sales tax granted by the notification dated

December 13, 1957.

The judgment of the Supreme Court in Filterco and Another Vs. Commissioner of Sales Tax, Madhya Pradesh and Another, was pressed into

service. The following passage found in paragraph 11 was relied upon (at page 322):

We are of the opinion that the High Court should have examined the merits of the case instead of dismissing the writ petition in limine in the

manner it has done. The order passed by the Commissioner of Sales Tax was clearly binding on the assessing authority u/s 42B(2) and although

technically it would have been open to the appellants to urge their contentions before the appellate authorities, namely, the Appellate Assistant

Commissioner, that would be a mere exercise in futility when a superior officer namely, the Commissioner, has already passed a well considered

order in the exercise of his statutory jurisdiction under Sub-section (1) of Section 42B of the Act holding that 21 varieties of the compressed

woollen felt manufactured by the appellants are not eligible for exemption under entry 6 of Schedule I of the Act. Further Section 38(3) of the Act

requires that a substantial portion of the tax has to be deposited before an appeal or revision can be filed. In such circumstances we consider that

the High Court ought to have considered and pronounced upon the merits of the contentions raised by the parties and the summary dismissal of the

writ petition was not justified. In such a situation, although we would have, ordinarily, set aside the judgment of the High Court and remitted the

case to that court for fresh disposal, we consider that in the present case it would be in the interests of both sides to have the matter finally decided

by this Court at the present stage itself especially since we have had the benefit of elaborate and learned arguments addressed by the Counsel

appearing on both sides.

Once the commodity is the subject-matter of the ADE Act, 1957, an additional duty will be collected on those goods. On the interplay

between ADE Act and sales tax law, the Learned Counsel relied upon a Division Bench judgment of this Court in Kishinchand Chellaram v. Joint

Commercial Tax Officer, Chintadripet Division, Madras-2 reported in (1968) 21 STC 367. The following passages found in pages 375 to 377

may be usefully extracted below:

...The latter relative motion of law has to be interdicted in a deserving case by courts exercising extraordinary jurisdiction under Article 226 of the

Constitution, if on a prima facie review of the relative and relevant facts, it is found that the jurisdictional fact has been erroneously found by the

concerned Tribunal. In other words, if the assessing authority is not right in having assumed jurisdiction in it to levy sales tax on its own self serving

finding that terylene, terene, decron, etc., are not artificial silk, then a writ of prohibition can issue in order to avert the application and

commandment of law, resulting from such an erroneous assumption of jurisdiction. We are therefore unable to agree with the learned Advocate-

General that these writs are not maintainable.

In the instant case, we are confronted with the expression ''artificial silk'' which has a special connotation of its own. It satisfies the popular

understanding test in that it is understood as ordinary mill textiles and which is a man-made fabric, may the base be either viscose or mineral oil.

Such overwhelming authority is available that it would not be safe to take out artificial silk appearing as item 4 in the Third Schedule to the Madras

General Sales Tax Act, 1959, totally out of the popular context and meaning attributed to it and accept the contention of the Revenue that the

articles under review are not artificial silk. The Central Government which has been made a party to these writ petitions categorically avers that

nylon, terylene, terene, dacron, nylex, etc., are considered as artificial silk being man-made fibres and that this view has been prevalent throughout

India about the classification of these fibres and adds that even factually and technically, the products are textiles coming under the category of

artificial silk. These goods are subject to the additional duty of excise under the Additional Duties of Excise (Goods of Special Importance) Act,

1957, and there has not been any controversy about the character of the goods at any time. They are of the view that by virtue of the agreement

between the State and the Central Government, the Centre is collecting the additional excise duty on these fabrics and distributing a portion of the

same out of the consolidated fund to the State, and that in respect of these fabrics the State cannot levy sales tax. It is a fundamental canon of law

that whilst it is possible for both the Centre and the State to interpret upon and explain certain words or expressions used in taxing statutes amongst

others, a certain uniformity should prevail in order to avert inconvenience and harassment resulting to the persons affected by such an interpretation

or ruling. Article 261 of the Constitution of India is a pointer to this effect and provides that full faith and credit shall be given throughout the

territory of India to public acts of the Union and of every State. It cannot be disputed seriously that the opinions and the decisions taken by the

Government of India under the Indian Tariff Act and the Excise Acts are such public acts. It is also significant to note that the Additional Duties of

Excise (Goods of Special Importance) Act was passed after a deep consideration of the mutual interests and benefits the Centre and the States

should and ought to derive by such an imposition. This is seen from the Finance Commission''s Report preceding the passing of the Additional

Duties of Excise (Goods of Special Importance) Act and this is also referred to in the counter-affidavit filed on behalf of the Central Government.

Such being the essence of the bargain between the Centre and the States, when the additional excise duty was imposed on artificial silk, it is not

ordinarily open to the State, who did not at any time choose to impose a levy on the products under consideration ever since the passing of the

Madras General Sales Tax Act, 1959, to take up a view contrary to that practice and understanding and arbitrarily decide to levy sales tax on the

goods in question on the foot that they are not artificial silk. . .

If there is an exemption under the Act, certainly it is not open to the authorities below to demand tax though the State is empowered to levy tax

even for commodities coming under the ADE Act, 1957. In this context, it is necessary to refer to the judgment of the Supreme Court in State of

Bihar v. Bihar Chamber of Commerce, (1996) 9 SCC 136 and in paragraph 29 it was observed as follows (at page 19):

...We are, therefore, unable to say that by agreeing to take a share in the proceeds of the additional duties of excise, the State of Bihar has

deprived itself of its power to levy entry tax under and by virtue of entry 52 in List II in the Seventh Schedule to the Constitution. Indeed, it has not

even forsaken its power to levy taxes on sale or purchase of tobacco or any other scheduled commodity; if it does so, all that would happen is that

the consequence provided in the proviso to Rule (2) in the Schedule to the ADE Act will follow and nothing more. The ADE Act does not affect

the legislative competence of the State Legislature to make a law with reference to any of the entries in List II. The contention of Shri Ganesh on

this score is accordingly rejected.

Finally, the Learned Counsel submitted that if a specific entry which is leviable for additional duty under the Act, 1957 is made, it is

automatically exempted u/s 8 of the TNGST Act for the purpose of levying tax by the commercial tax authorities. By exotic interpretation, they

seek for levy tax would amount to double taxation, which is not contemplated. That will also violative of distribution of power of various taxation

statutes.

The Supreme Court in Godfrey Phillips India Ltd. and Another Vs. State of U.P. and Others, in paragraph 49 observed as follows:

Under the three Lists of the Seventh Schedule to the Indian Constitution a taxation entry in a legislative List may be with respect to an object or

an event or may be with respect to both. Article 246 makes it clear that the exclusive powers conferred on the Parliament or the States to legislate

on a particular matter includes the power to legislate with respect to that matter. Hence where the entry describes an object of tax, all taxable

events pertaining to the object are within that field of legislation unless the event is specifically provided for elsewhere under a different legislative

head. Where there is the possibility of legislative overlap, courts have resolved the issue according to settled principles of construction of entries in

the legislative Lists.

....

However, while widening the scope of entry 54 of List II, the powers of the States to levy such tax are subjected to a corresponding restriction

as a consequence of the constitutional curbs imposed on sales tax under Article 286 read with Sections 14 and 15 of the Central Sales Tax Act,

1956, and the ADE Act, 1957. The tax leviable by virtue of Sub-clause (b) of Clause (29A) of Article 366 of the Constitution thus becomes

subject to the same discipline to which any levy under entry 54 of the State List is made subject to under the Constitution. The position is the same

when we look at Article 286 of the Constitution. If any declared goods which are referred to in Section 14 of the Central Sales Tax Act, 1956, are

involved in such transfer, supply or delivery, which is referred to in Clause (29A) of Article 366, the sales tax law of a State which provides for

levy of sales tax thereon will have to comply with the restrictions mentioned in Section 15 of the Central Sales Tax Act, 1956.

....

So even if tobacco is an article of luxury, a tax on its supply is within the exclusive competence of the State but subject to the constitutional

curbs prescribed under Article 286 read with Sections 14 and 15 of the Central Sales Tax Act, 1956, and most importantly the ADE Act of 1957

under which no sales tax can be levied on tobacco at all if the State was to take the benefits under that Act.

The Learned Counsel also placed reliance upon the judgment of the Supreme Court in Delhi Cloth and General Mills Co. Ltd. Vs. State of

Rajasthan and Others, to show the coexistence between the local Sales Tax Act and the ADE Act, 1957. He referred to the following passage

found in paragraph 20, which is as follows (at page 263 of STC):

The unconditional exemption from sales tax granted on the sale of rayon fabrics, that is to say, without the condition that additional excise duty

was paid by the manufacturer, was withdrawn by a notification dated March 5, 1973, made by the Rajasthan State Government u/s 4(2) of the

Rajasthan Sales Tax Act. The notification provided that in the case of unprocessed rayon and artificial silk fabrics the exemption from sales tax

would apply only if the additional duty is leviable on them under the Additional Duties of Excise (Goods of Special Importance) Act, 1957, and

such goods had not specifically been exempted from the said duty and the dealers thereof furnished proof to the satisfaction of the assessing

authority that such duty had been paid. Therefore, as from March 5, 1973, the exemption from tax under the Rajasthan Sales Tax Act was

available only if additional excise duty was leviable and the dealer had established that he had paid such duty. About the same time, the Rajasthan

Taxation Laws (Amendment) Act, 1973, deleted item 18 in the Schedule to the Rajasthan Sales Tax Act with effect from March 5, 1973. It is

evident, therefore, that a dealer was entitled to exemption from sales tax up to March 4, 1973, without the requirement of payment of additional

excise duty. The conclusion is inescapable that even if the appellant did not pay additional excise duty, he was exempt from sales tax on the

turnover of rayon tyre cord fabric for the assessment years under consideration.

In the present case, it is not the stand of the State that they are taxing the specified commodity, i.e., hook and loop tape fasteners. It is the

clarification issued by the COCT bringing it under a different head in order to levy tax without relying upon the nature of goods and the entry under

which it has been made under the ADE Act, 1957.

As to what is a narrow fabric and hook and loop tape fasteners, the Learned Counsel referred to the publication of the first petitioner-

company regarding the description of narrow fabric and hook and loop tape fasteners, which reads as follows:

What is a narrow fabric ?

Narrow fabrics are those textile products which are limited by the width dimensions, they are generally categorised for being less than 30 cm width

but mostly are of less than 125 mm width. Prominent examples are hook and loop tape fasteners, elastic tapes, webbing tapes, ribbons, etc. (P.1)

What is a hook and loop tape fasteners ?

Hook and loop tape fasteners is a type of narrow fabric. It is a textile tape used in different applications for fastening purpose. It is a combination

of two separate woven tapes one called the hook tape and the other a loop tape, which when placed in contact with each other displays excellent

fastening properties. (P1)

Therefore the issue raised herein is the type of entry in the ADE Act, 1957 so as to attract exemption u/s 8 of the TNGST Act. In construing

narrow woven fabric, one cannot interpret in a narrow sense or take into wholly different entry found in 58.07. As to how such entries are to be

looked into came up for consideration by the Supreme Court in Porritts and Spencer (Asia) Ltd. Vs. State of Haryana, . The following passage

found in paragraph 5 may be usefully extracted below (at page 436 of STC):

There can, therefore, be no doubt that the word ''textiles'' in item 30 of Schedule B must be interpreted according to its popular sense, ''meaning

that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it''. There we are in complete

agreement with the judges who held in favour of the Revenue and against the assessee. But the question is: What result does the application of this

test yield ? Are ''dryer felts'' not ''textiles'' within the ordinary accepted meaning of that word ? The word ''textiles'' is derived from the Latin

''texere'' which means ''to weave'' and it means any woven fabric. When yarn, 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 warp 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. Moreover a textile need not be of any particular size or strength or

weight. It may be in small pieces or in big rolls: it may be weak or strong, light or heavy, bleached or dyed, according to the requirement of the

purchaser. The use to which it may be put is also immaterial and does not bear in its character as a textile. It may be used for making wearing

apparel, or it may be used as a covering or bedsheet or it may be used as tapestry or upholstery or as duster for cleaning or as towel for drying the

body. A textile may have diverse uses and it is not the use which determines its character as textile. It is, therefore, no argument against the

assessee that ''dryer felts'' are used only as absorbents of moisture in the process of manufacture in a paper manufacturing unit. That cannot militate

against ''dryer felts'' falling within the category of ''textiles'', if otherwise they satisfy the description of ''textiles''.

Therefore, the Learned Counsel for the petitioners prayed for setting aside the order of COCT and also various assessment and appeal orders

made pursuant therein.

In response to the same, in the counter-affidavit, dated November 9, 2009, the respondents have averred that as against the assessment order,

an appeal is provided and in respect of appeal order, a further appeal is also provided and that the petitioners should avail of such remedies and

not by way of filing writ petitions. In paragraphs 5 and 6 of the counter-affidavit, it was averred as follows:

. . It is submitted that hooks and loop tape fasteners which are called as ''Velcro'' fasteners in the market consist of pair of nylon tapes of the

same length and breadth moulded with tiny hooked nylon fibres on the one surface of the tape and tiny fibre loops moulded on one surface of the

another tape, so that the hooked surface of the one tape is easily fastened with the looped surface of the another tape when pressed together. It is

therefore submitted that they both together acts as a wide range of products such as clothing, carpentry, stationery products, footwear, bags etc.,

as a fastening material. Since the nature of the goods is such as above, it is respectfully submitted that the above items cannot be classified as a

woven fabric either as understood in common parlance or as described under heading 58.06 of the Central Excise Tariff Act.

...It is submitted that the entry 8(vi) of Part A speaks only about narrow woven fabrics as described under the heading 58.06 and not above

hooks and loop tape fasteners which is commercially called as ''Velcro'' fasteners. Inasmuch as the product as marketed by the petitioners does

not fall within the abovesaid entry, the question whether the said entry attracts additional excise duty or not or whether the additional excise duty is

actually paid or exempted by notification as averred by them in para 7 of the affidavit and pales into insignificance.

Mr. Haja Nazuruddin, the learned Special Government Pleader (Taxes), in support of his submissions, referred to the judgment of the

Supreme Court in Union of India (UOI) and Others Vs. Tata Engineering and Locomotive Co. Ltd., and contended that the High Court in exercise

of its jurisdiction cannot give guidelines to the Assistant Collector about the manner and mode in which assessment should be made and the

authorities are entitled to assess as they think fit and the assessee must avail of the statutory remedy.

He also placed reliance upon the judgment of the Supreme Court in Tin Plate Co. of India Ltd. Vs. State of Bihar and Others, for the very

same purpose of rejecting the case in view of alternative remedy. In case, the writ petitions are to be dismissed on that ground, then no opinion

need to be expressed as to how the authorities should decide the matter.

He also relied upon the judgment of the Supreme Court in Punjab National Bank Vs. O.C. Krishnan and Others, and also Titaghur Paper

Mills Co. Ltd. and Another Vs. State of Orissa and Others, for the very same purpose.

The Learned Counsel also placed reliance upon the judgment of the Kerala High Court in Kerala Textile and Garments Dealers Welfare

Association v. State of Kerala reported in (2009) 24 VST 104 for the purpose of contending that the power of the State to levy tax under Article

286(3) of the Constitution included in the First Schedule to the ADE Act is not taken away and at the maximum, the result is loss of revenue.

He also relied upon the judgment of the Supreme Court in State of Bihar v. Bihar Chamber of Commerce, (1996) 9 SCC 136 for the very

same purpose. Thereafter, the Learned Counsel in respect of entries in the Schedule contended as to how they will have to be interpreted in the

context of taxing statutes. For this purpose, he relied upon a Division Bench judgment of this Court in Nemichand Parasmal and Co. v. Deputy

Commercial Tax Officer, Evening Bazaar Assessment Circle, Madras reported in (1984) 55 STC 47, wherein the Division Bench of this Court has

held that it is a well considered rule of construction that the words used in a law imposing a tax should be construed in the same way in which they

are understood in ordinary parlance in the area in which the law is in force. If an expression is capable of a wider meaning as well as narrower

meaning the question whether the wider or the narrower meaning should be given depends on the context and the background of the case. In that

case, the Division Bench held that the term ""sugar"" will not include sugar candy or the diamond sugar.

The Learned Counsel also placed reliance upon the judgment of the Supreme Court in State of Goa and others Vs. Leukoplast (India) Ltd.

etc., , wherein the Supreme Court held that the assessee should not be allowed to by-pass the statutory remedy and can approach the High Court

with a writ petition. The Counsel also placed reliance upon the judgment of the Supreme Court in Sony India Pvt. Ltd. v. Commercial Tax Officer

reported in (2009) 23 VST 1 for the very same purpose.

He further placed reliance upon the judgment of the Supreme Court in Godfrey Phillips India Ltd. and Another Vs. State of U.P. and Others,

YY for the purpose of contending that the power of the State to levy sales tax is not taken away by the ADE Act, 1957.

On the basis of the rival contentions, it has to be seen whether the impugned clarification issued by the COCT is legally valid.

While issuing clarification, it is mandatory for the COCT to write a speaking order. After referring to the relevant materials placed by the

assessee, the COCT simply rejected the stand of the dealers and held that entry 58.06 will not apply and the materials produced are not

satisfactory. It cannot be said that the dealers have not provided legally sustainable materials. On the other hand, in the absence of any clear

definition, the definition of the State enactments on the clarification issued therein also will have to be taken into account. In the present case, it was

clearly demonstrated that the product in question is a narrow woven fabric. Merely because it is described differently, it cannot be taken out of

purview of the entry 58.06 under the appendix to the ADE Act. The attempt made by the Commissioner to bring it in some other head, i.e., 58.07

does not stand to reason as it is neither badge nor label nor similar article of textile materials in the piece, in strips or cut to shape or size. It is a

strange interpretation arrived at by the Commissioner only for the purpose of taxing the petitioners/dealers. It goes against the earlier understanding

of the very same Commissioner covered by the circular, dated April 7, 1989, wherein the Department followed the Central Excise Tariff Act,

1985 and held that they have not asked for local sales tax.

As rightly contended, for arriving at such a conclusion, the Commissioner never gave any notice to the dealers and it is his own decision based

on ipse dixit. Once it is not a commodity under heading 58.07, but once it is squarely covered under heading 58.06 subject to the Excise Act and

the ADE Act, 1957, this Court is empowered to direct the respondents to statutorily grant exemption provided u/s 8 of the TNGST Act. If the

State wants to levy even that particular commodity, it is well open to them to declare it as liable for tax, but cannot include it under some other

wrong entry and then to levy tax only for the purpose of maximising the State''s revenue. The clarification issued by the COCT does violence to the

language found in the relevant entry.

In the light of the above, W. P. No. 11761 of 2006 will stand allowed and the impugned clarification stands set aside. It is hereby declared

that the hook and loop tape fastener called as Velcro fastener is coming under entry 58.06 and not liable for tax in view of Section 8 of the

TNGST Act.

In view of allowing W. P. No. 11761 of 2006, automatically the other assessment orders and the appellate orders confirming the orders of the

Commercial Tax Officers impugned in the other writ petitions are also liable to be set aside. Accordingly, they are set aside. Wherever there is an

appellate order, the same will stand set aside and will be remitted to the assessment officer for a fresh disposal in the light of this order. Wherever

there is assessment order, the same also stands set aside and the matter is remitted to the respective assessment officers to re-examine their order

in the light of this judgment.

In the light of the above, all the writ petitions will stand allowed with the above directions. No costs. Consequently, connected miscellaneous

petitions stand closed.