- (1.) By 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 under Section 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 Porritts & Spencer (Asia) Limited v. State of Haryana, 1978 42 STC 433 The benefit of such exemption cannot be denied just because additional duty is not being levied thereon. He further submits that it is well settled that there cannot be any correlation between the additional duty of excise under the 1957 Act and the State Legislature's power to levy sales tax on goods subjected to such additional duty. In support of this legal submission he had referred to a decision of this Court in case of Prime Impex Limited & Anr. v. Assistant Commissioner of Commercial Taxes and Ors., 2002 127 STC 23 Additional duty on excise is not being levied since 1985. Disputes arose since then till in 1994 Act so no such condition as to levy on duty was made. Such exemption was withdrawn only under the West Bengal Value Added Tax Act, 2003. It is well settled that exemption available under clear provisions of the law cannot be denied on the basis of legislative intent. To support this legal submission he has placed reliance on the following decisions of the Supreme Court: (a) Hemraj Gordhandas v. H.H. Dave, Assistant Collector of Central Excise & Customs Surat,1978 2 ELT 350 at pages 353-354. (b) Commissioner of Central Excise, Hyderabad v. Sunder Steels Limited, 2005 181 ELT 154 (S.C.) at page 155. (c) Union of India and Others v. Tata Iron Steel Company Limited, 1977 1 ELT 61 (S.C.) 165. 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 in case of Filter Co. & Another v. Commissioner of Sales Tax, Madhya Pradesh clearly ruled the pliabilities and is an essential feature of cloth. But the characteristic feature of pliability of synthetic wire cloth is not so as it is in the artificial silk is. As such it cannot be said that disputed goods is same and identical as artificial silk. After having examined the characteristics, properties of the textile fabrics mentioned in Serial No. 81 of the Schedule I of 1994 Act it is neither artificial silk from common parlance test nor it is artificial silk on the point of pliability condition. The disputed goods in question itself are not covered by Entry No. 81 of the Schedule I of 1994 Act as such petitioner's claim for tax free goods cannot be entertained. So far as the species of the goods is concerned it is treated differently from artificial silk for the impost of Tax and is made subject to sales tax. There is another aspect according to Additional Duties of Excise (Goods of Special Importance) Act, 1957 if any additional excise duty is leviable on any goods of special importance, no sales tax can be levied on the sale of the said goods manufactured in India, if the State was to take the benefits under the ADEA that textile fabric is specially important goods but no additional excise duty is levied on synthetic wire cloth/fabric as such on this angle also in this case the petitioner cannot claim any exemption from payment of Sales Tax if additional duty under ADE Act has been levied.;