STATE OF ORISSA REPRESENTED BY THE COMMISSIONER OF SALES TAX Vs. ABHIRCHAND DWARIKADAS
HIGH COURT OF ORISSA
State Of Orissa Represented By The Commissioner Of Sales Tax
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R.N. Misra, J. -
(1.) THE following question has been referred to us under Section 24(1) of the Orissa Sales Tax Act (hereinafter referred to as the Orissa Act) by the Member, Sales Tax Tribunal for determination of this Court.
Whether in the facts and circumstances of the case, the tribunal is right in holding that handloom woollen blankets and rugs come within the exemption as per serials 19 and 33 of the Schedule of tax free goods so as to be exempt from taxation under the Orissa Sales Tax Act?
(2.) THE Assessee is a dealer in mill -made cloth, handloom rugs, etc. The assessing officer found that the Assessee had incurred liability under the Act with effect from 1 -12 -1964 and he was, therefore, assessed as an unregistered dealer under the Act. The assessing officer held that sale of rugs was liable to tax at 7 per cent and accordingly assessed him.
In first appeal, the Appellate authority found that woollen rugs were taxable but at the rate of 2 per cent upto 31 -7 -1966 and at the rate of 3 per cent thereafter on the ground that woollen rugs were declared goods. The Assessee thereupon appealed to the Tribunal. The Tribunal came to hold:
The only question in these two appeals is whether the blankets dealt in by the Assessee is liable to tax at all. The assessing authority took the stock to be handloom woollen rugs and taxed it at 7 per cent, but the learned first Appellate authority took it to be woollen fabrics as defined in item No. 21 of the first schedule of Central Excise and Salt Act and so taxed it at 2 per cent till 31 -7 -1966 and 3 per cent thereafter. The contention of the Assessee is, it comes under the tax free list both under serial 19 and 33, whereas substantially according to the Department, it comes under the taxable item though no specific serial was attributable. I think, the stuff would come under tax free item under serials 19 and 33 and, therefore, is not liable to tax, When there is a specific provision, their general provision relied on by the Department is inapplicable. Accordingly, I allow the appeals, reduce the assessment to nil and, therefore, the penalty is scrapped...
According to the State, woollen rugs would come neither under serial 19 nor serial 33 of the Schedule of tax free goods. That is how the question has been raised and referred to us.
Under the provisions of the Orissa Act, sale of all goods is liable to tax. Section 5 provides the rate of tax and Section 6 empowers the State Government to exempt from tax the sale of any goods or class of goods and likewise withdraw any such exemption. Under Sub -section (1) of Section 5, the general rate of tax is indicated. By the provisos appended to Sub -section (1) power has been vested in the State Government by notification to fix a higher rate of tax. Under the fourth proviso to Sub -section (1) a mandate is given that in regard to declared goods the rate shall not exceed the rate specified under Section 15 of the Central Sales Tax Act (hereinafter referred to as the Central Act).
(3.) IN exercise of the power vested under the proviso to Section 5(1) of the Orissa Act and in exercise of the power vested under Section 6 of that Act, two separate notifications were issued by the State Government on 30th of December, 1957. The relevant entries in the Schedule of tax -free goods are serials 19 and 33, which are to the following effect:
In the other schedule providing for a higher rate of tax, entry No. 46 is to the following effect:
Learned standing counsel concedes that woollen rugs cannot be taxed at a rate higher than what is prescribed under Section 15 of the Central Act. According to him, however, the item of goods is not exempt from taxation as it is not covered by either entry No. 19 or entry No. 33 of the Schedule of tax free goods. He relies on a decision of this Court in the case of State of Orissa v. Modi Stores, (1969) 26 STC 255. The point for determination in that case was as to whether carpets were mill -made fabrics. Dealing with the point, this Court stated:
...The law is well settled that if there are two separate and distinct entries, then both the entries must be so construed as to reconcile them. If carpets would come within the definition of 'fabrics ' as given in entry 33, then entry 40 will become redundant. The legislature is not to be attributed with enactment of any redundant entries. It is not necessary to cite many authorities on this point. A reference to Ramavatar Budhiaprasad v. Assistant Sales Tax Officer, (1961) 12 S.T.C. 286 would be enough....
This Court further stated:
...Carpets have not been defined in the Sales Tax Act. In the absence of a definition the word must not be construed in any technical sence, but must be taken as understood in common parlance. Sataranji is a word of everyday use and must be construed in its popular sence, i.e. that sense which people conversant with the subject matter with which the statute is dealing, would attribute to it. That was the pronouncement of the Supreme Court in Ramavatar Budhiaprasad v. Assistant Sales Tax Officer, (1961) 12 S.T.C. 286. Carpet s a generic word....
According to learned Standing counsel entry No. 46 of the schedule of Taxable goods has excluded hand -made kambals. If Kambals were excluded by virtue of either entry No. 19 or 33 of the schedule of tax -free goods, there could be no reference to the hand -made kambals in entry 46 of the schedule of taxable goods. "Cloth" has not been defined under the Act. The meaning in common parlance attributed to the word therefore, to be adopted. Though the Assessee 's counsel seriously presses upon us to accept the dictionary meaning of the word "cloth" which covers rugs and blankets, we are not prepared to do so. In common parlance, cloth is never understood to cover a rug or blanket. No one going to the market to buy cloth is shown rugs or blankets when he demands cloth to be shown to him. A customer is not satisfied when his demand cloth is answered by delivery of rugs or blankets. The Assessee 's counsel referred us to a decision of the Madhya Pradesh High Court Commr of Sales Tax v. New Bhopal Pradesh Ltd., (1970) 26 S.T.C. 306, where Hussian cloth had been accepted to be cloth. We do not think support can be had from that decision for our present purpose.;
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