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Judgment
N. Kumar, J.—The Petitioner, a Government of India undertaking has challenged in this Revision Petition the concurrent finding of fact recorded by the three authorities to the effect that the raw silk imported by the Petitioner from China is not exempted from payment of surcharge in pursuance of Notifications No. 530 FD 190 [SL.93(I)] Bangalore, dated 30th March, 1994, No. 590 FD 49 [SL.95(27)] Bangalore, dated 31st March, 1995 and No. 630 FD 35 [SL.96(22)] Bangalore, dated 30th March, 1996 issued by the State Government in exercise of its power u/s 8(a) of the Karnataka Sales Tax Act, 1957 [for short hereinafter referred to as ''the Act''].
Few facts leading to this petition, are as under:
The order of assessment relates to the assessment years 1994-95, 1995-96 and 1996-97. The Petitioner is a registered dealer under the provisions of the Act dealing in raw silk yarn imported from outside the country. The Petitioner imported raw silk from China during the aforesaid assessment years. Entry 22 of Part ''S'' of Second Schedule of the Act provides for 4 per cent of tax on raw silk imported during the period from 1st April, 1994 to 31st March, 2002, which the Petitioner has paid. By means of Notification dated 30th March, 1994 referred to above, for the aforesaid relevant years, the Government of Karnataka exempted payment of surcharge leviable u/s 6-C, prior to amendment by means of Act No. 18 of 1994, on ''mill yarn (all kinds)''. In fact, mill yarn (all kinds) excluding cotton yarn, spun silk yarn, filature silk and those falling under any other entry finds a separate entry in Entry No. 8 of Part-M of Second Schedule of the Act for which, during the relevant period, the sales tax payable was only 2 per cent. In the Fifth Schedule also Entry No. 38-A refer to Raw silk including raw silk yarn and silk yarn (twisted or thrown silk yarn, spun silk yarn and noil silk yarn). Thus these goods find three separate entries in the schedules.
The Petitioner claimed exemption from payment of surcharge on the basis of aforesaid notifications on the ground that the silk yarn imported by it from China falls within the phrase ''mill yarn (all kinds)''. All the three authorities, on consideration of the material on record and the relevant entries referred to above, have declined to grant the exemption claimed by the Petitioner. Aggrieved by these orders as already stated, the Petitioner is before this Court.
The learned Counsel for the Petitioner contended that mill yarn (all kinds) within its ambit, includes raw silk which the Petitioner has imported from China. As it is only after the milling process the raw silk is obtained, it falls within the phrase ''mill yarn (all kinds)''. He referred to us Entry 38-A of the Fifth Schedule of the Act wherein it is mentioned as raw silk including raw silk yarn (twisted or thrown silk yarn, spun silk yarn and noil silk yarn) other than those imported from outside the country where taxes are exempted. Per contra the learned Additional Government Advocate sought to support the impugned orders.
In the light of the rival contentions advanced by the learned Counsel appearing for the parties, the short point that would arise for consideration in this petition, is whether the imported raw silk falls within the ambit of mill yarn (all kinds), referred to in the aforesaid notifications?
It is not in dispute that Entry 22 of Part S of the Second Schedule of the Act refers to raw silk and silk yarn imported from outside the country and is liable to tax at 4 per cent. Entry 8 of Part M of the Second Schedule of the Act refers to mill yarn (all kinds) excluding the yarns mentioned therein and the tax payable is only at 2 per cent during the relevant period. However, as per Entry 38-A of the Fifth Schedule for raw silk including raw silk yarn and silk yarn (twisted or thrown silk yarn, spun silk yarn and noil silk yarn) other than those imported from outside the country, no tax is levied. In other words, the legislature by making these three different entries, have treated these goods as different entities. In granting exemption from payment of surcharge, they have extended the benefit only to mill yarn (all kinds). The raw silk and silk yarn which find a place in Entry 22 of Part S of the Second Schedule of the Act is not included for such treatment. The legislature has specifically treated these three goods differently. They are competent to take into consideration this distinction and treat different commercial commodities differently for the purpose of levy of tax. Even though the raw silk, silk yarn and mill yarn may fall under the heading ''yarn'', they undoubtedly constitute separate groups which are capable of distinct classification on intelligible basis. As soon as separate commercial commodities emerge or come into existence they become separate taxable goods or entity for the purpose of sales tax. Whenever a specific entry is made in the Schedule, it is to be considered, instead of referring to the other entries which are similar or identical. Whenever there is a specific entry, other entries need not be considered for the purpose of taxation. Items expressed in the schedule must be construed in the sense in which they are understood in the trade by a dealer and consumer. The fact that the legislature in its wisdom has provided for separate and distinct entries, show that each one of the entry excludes the other. Therefore, after providing for three separate and distinct entries if the government chose to grant exemption from payment of surcharge in respect of the goods falling in one of those entries, i.e., mill yarn (all kinds) set out in item No. 8 of Part M of the Second Schedule of the Act, by implication they did not intend to extend such benefit to the goods set out in Entry 22 of Part S of the Second Schedule of the Act. Further, according to Chambers 21st Century Dictionary, the meaning attached to the word ''raw'' is.- not processed, purified or refined, raw silk in a natural crude state. In view of the aforesaid meaning of the word ''raw'', it is opposed to the mill yarn for which the exemption was granted.
The learned Counsel for the Petitioner brought to our notice the judgment of the Supreme Court in the case of 1998 (77) ECR 443 (SC) and the judgment of this Court in the case of State of Karnataka Vs. Kasturi and Sons Ltd., ; in the case of M/s. Manipal Power Press v. State of Karnataka made in STA No. 8 of 2002 disposed of on 26th November, 2004.
In the case of State Trading Corporation of India Limited (supra), the question that came up for consideration was that the sugar which was exempted from levy of tax includes imported sugar. In that context it was held, having regard to the definition, it is to be read that every grain of sugar, whether imported or produced in India is exempted from levy of tax under the Act provided that it has been produced in a factory ordinarily using power in the course of production of sugar. Admittedly there was no separate entry for levy of tax for imported sugar.
In the case of Kasturi (supra) the question that came up for consideration was that the description of ''paper'' in Entry 3 of Part P of the Second Schedule includes paper of all kinds including ''waste paper''. The schedule do not contain separate entry for ''waste paper''. It is in that context it was held that ''paper'' includes ''waste paper''.
Same is the position in the case of Manipal Power Press (supra). In the aforesaid judgment the decision rendered in the case of Kasturi (supra) has been followed. In the decisions referred to above, there was no separate entry in the schedule. Therefore, the judgments referred to above, have no application to the facts of this case.
As noticed by us earlier, on proper appreciation of the material on record and keeping in mind the settled legal position, all the three authorities have rightly come to the conclusion that the Petitioner is not entitled for exemption from payment of surcharge for the raw silk imported from China. We do not find any good ground to take a different view from what is taken by the authorities.
In the light of what is stated above, this revision petition is rejected.
ORDER ON FOR BEING SPOKEN TO IN STRP No. 132 of 2003
This is a revision petition. However, obviously on account of typing error at paragraph-11 of the order, it is stated that the "appeal" was rejected instead of stating that the "revision petition" was rejected. When it was brought to our notice, we directed the matter to be listed for being spoken to today. Accordingly, it is listed.
In the light of what is stated above, the word "revision petition" is directed to be substituted in the place of "appeal" at paragraph-11 of the order. Accordingly, it is ordered.