BERI (Ag.) C. J. - (1.) THE petitioner owns an industrial unit "shriram Rayons", which is located at Kota in the State of Rajasthan and it manufactures "rayon tyre cord fabric. "
(2.) THE petitioner's case is that this commodity is a textitle consisting of rayon threads in the warp and cotton threads in the weft and is manufactured on weaving looms like any other textile. It is supplied to the manufacturers of tyres who use the material for the purposes of impregnating it with rubber. Entry 18 of the Schedule to the Rajasthan Sales Tax Act, 1954 (hereinafter called "the Sales Tax Act") exempts from the sales tax and purchase tax cotton fabrics, rayon or artificial silk fabric, woolen fabric as defined in the Additional Duties of Excise (Goods of Special Importance) Act, 1957. THE Additional Duties of Excise Act, 1957 in turn borrows the definition of rayon or artificial silk fabrics etc. from Item No. 22 of the First Schedule to the Central Excise and Salt Act, 1944. Sales were made by the petitioner of the rayon tyre cord fabric and they claim that this article was exempt from sales tax and in point of fact for the years 1965-66, 1966-67, 1967-68 and 1968-69 the petitioner was not charged any sales tax on the said commodity. It is emphasised that the orders relating to the year 1967-68 and 1968-69 were passed after evidence was led and the questions keenly debated. It was in April, 1971 that a question was raised in the Legislative Assembly of Rajasthan that the exemption from Sales Tax of the sales of the petitioner's rayon tyre cord fabrics was erroneously granted and a debate followed and in the course of it the Minister declared to bring the sales of the petitioner's commodity in question to tax. THE Commissioner of Commercial Taxes issued a letter (Annexure 'a' to the petition) to the respondent No. 1 to levy Sales tax at 10 per cent. On the 10th of May, 1971 the Dy. Commissioner (Administration), Commercial Taxes, Jaipur, issued four notices under the proviso to sec. 12 (1) of the Sales Tax Act for taxing the sales of the petitioner's commodity in question. THE proceedings were dropped on the 21st of June, 1971 in view of the petitioner's preliminary objection and thereafter the respondent No. 1 issued 4 notices, all dated 31st July, 1971 under sec. 12 of the Sales Tax Act for the years 1965-66 to 1968-69 with a view to taxing the sales of the commodity in question. By his order dated 15-10-1971 the respondent No. 1 assessed the petitioner under the Central Sales Tax Act on the sales of the commodity in question rejecting the petitioner's contention that the said commodity was exempt from sales tax because it was covered by entry 13 to the Schedule of exempted goods under the Sales Tax Act. THE said assessment order has been impugned in writ petition No. 1885/71. On the 25th January, 1972 the respondent No. 1 made the assessment on the aforesaid commodity for the year 1970-71 and imposed sales tax on sales at the rate of 10 per cent and demanded a sum of Rs. 9,45,010. 16 P. This assessment order is challenged in writ petition No. 398/72. As both the writ petitions are of the same petitioner and raise an identical point it will be convenient to dispose them together. The grounds of attack are that the rayon tyre cord fabrics in technical as well as commercial parlance is a fabric which is exempt under Item 18 in the Schedule to the Sales Tax Act; that the said tax has been assessed by the taxing authorities in view of the declaration made by the Government on the floor of the Legislative Assembly and the petitioner is being asked at this late stage to produce 'c' Form Certificates as the transactions of sale were interstatal. The petitioner has relied on a number of documents and books to show that the commodity in question is a fabric covered by Item 18 in the Schedule to the Sales Tax Act. The prayer in writ petition No. 1885/71 is for a grant of writ in the nature of certiorari or other appropriate writ, direction or order under Arts. 226 and 227 of the Constitution of India calling for the record of the case and after examining the legality thereof to quash and set aside the assessment order and notice of demand dated the 15th of October, 1971 for the year 1969-70 and the notices dated 11th August, 1971 under sec. 12 of the Sales Tax Act proposing to make reassessments on the sales for the years 1965-66 to 1968-69 and restrain the State from demanding the amount of Rs. 45,34,765'. The prayer in the writ petition No. 398/72 is the same but it relates to the demand of tax dated 25th January, 1972 for the year 1970-71 and to restrain the respondents from recovering the sum of Rs. 9,45,010. 16p. The State has filed an answer to the petition contesting the plea raised by the petitioner that the commodity in question is exempt under Item 18 of the Schedule to the Sales Tax Act and it is further submitted that according to the legal provisions and definitions, fabric is a manufactured material which is an end-product which does not need further manufacturing involving change in its properties. They say that fabric is cloth with the definite properties of end-product, though it may be cut, shaped, designed, fitted, stitched, adjusted, embroidered, impregnated or coated or may be put to like processing without losing its original properties before it is put to use and that the commodity produced by the petitioner, which it is claimed to be exempted, is not fabric but it is basically cord. In the course of the arguments on behalf of the respondents a statement in writing was made that the four notices relating to reassessment the years 1965-66, 1966-67, 1967-68 and 1968-69 issued under sec. 12 of the Sales Tax Act have been withdrawn because they were not issued by the Deputy Commissioner (Administration) or under his directions. The Department it is stated has also filed in the month of October 1971 revision applications under sec. 14 of the Sales Tax Act against the four assessment orders made on 23-10-1968; 12-5-1969; 11-12-1970 and 26-3-1971 for the assessment years 1965-66 : 1966-67 : 1967-68 & 1968-69 respectively.
(3.) LEARNED counsel for the respondents Mr. S. T. Desai made the following statement at the Bar : "that if the matter goes back to the Authority before whom appeals are pending, the Department will not contend that the assessee was liable to pay tax at the rate of 10 per cent and will waive the objection regarding the nonsubmission of 'c Forms. " This concession it appears will substantially reduce the petitioner's tax liability. Mr. Desai, however, raised a preliminary objection that this Court should not exercise its jurisdiction under Arts. 226 and 227 of the Constitution of India because whether Rayon tyre cord fabric is fabric or not is a disputed question of fact and should not be adjudicated in the exercise of extraordinary jurisdiction. He further submitted that the petitioner has alternative remedies which are provided by the Sales Tax Act and the petitioner should not be permitted to by-pass the statutory machinery. He contended that there is no error apparent on the face of the record in the circumstances of this case attracting the jurisdiction of this Court at this stage and merely because the petitioner will be required to deposit tax before resorting the remedy of appeal is no ground for exercising the extraordinary jurisdiction and he relied on Sales Tax Officer, Jodhpur vs. Shiv Ratan G. Mohatta (l); Bhopal Sugar Industries Ltd. , Madhya Pradesh vs. D. P. Dube, Sales Tax Officer, Bhopal (2); M/s Jaipur Hosiery Mills Pvt. Ltd. , etc. vs. The State of Rajasthan etc. (3); State of Rajasthan vs. Karamchand Thappar & Bros. (4); Nenuram vs. The State of Rajasthan (5); Thansingh Nathmal vs. The Superintendent of Taxes, Dhubri (6); Shivram Poddar vs. Income Tax Officer, Central Circle II, Calcutta (7); C. A. Abraham vs. Income-tax Officer, Kottayam (8); Nagendra Nath Bora vs. The Commissioner of Hills Division and appeals, Assam (9) and Tata Engineering and Locomotive Company Ltd. vs. The Assistant Commissioner of Commercial Taxes (10 ). Mr. Desai, however, urged that in case his preliminary objections are over-ruled he should be given an opportunity to lead experts' evidence to satisfy the Court that the commodity in question is not a fabric. Mr. A. K. Sen, learned counsel for the petitioner, urged that there was no dispute on facts because both the parties agree on the sample of the fabric shown to the Court and it can be decided whether it is a fabric or not as envisaged by Item 18 of the Schedule to the Sales Tax Act. It is not a question of fact but of an interpretation of a particular item in the Schedule. Whether the commodity in question is a fabric or not urged the learned counsel should be understood in the same sense as the commercial community comprehends it and the meaning given to it in common parlance and this Court in exercise of its powers under Art. 226 has jurisdiction to decide such a question. The plea of alternative remedy is not available to the respondents when the question is whether a commodity falls within the ambit of a given item or not, and the alternative remedy is of no use when the authorities have been influenced by higher authorities to lend support to a particular construction. He further urged that rules of natural justice have been violated in this case and in such a situation the plea of alternative remedy is not available to the respondents. 11 the case before us the learned counsel contended that the assessing authority has relied on the decision of the Excise Authorities without disclosing the same to the petitioner and thus violated the principles of natural justice. Where an assessing authority takes into account extraneous considerations it amounts to a jurisdictional error on its part and the remedy under Art. 226 of the Constitution should not be denied to the petitioner. Mr. Sen placed reliance on certain cases which we shall notice at appropriate place. ;