TaxTMI 
TaxTMI 
1993 (4) TMI 298
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....Sales Tax) Act, 1941 (hereinafter referred to as "the Act of 1941") and the Central Sales Tax Act, 1956. All these cases relate to carpets. In some of these cases such as cases Nos. RN-239(T) of 1989 and RN-351(T) of 1989 some assessments and proceedings under the Central Sales Tax Act, 1956, have also been challenged. This Tribunal has no jurisdiction in respect of tax under the Central Sales Tax Act, 1956, which is not specified in the Schedule of the West Bengal Taxation Tribunal Act, 1987. As such, the questions relating to the assessments made or proceedings taken under the Central Sales Tax Act, 1956 ("the CST Act, 1956", in short) will not be taken up for consideration in this judgment. 3.. The case of the applicant, M/s. Samuel Fitze and Company Private Limited in cases Nos. RN-239(T) of 1989/RN-31(T) of 1992 is that rule 3 of the Bengal Sales Tax Rules, 1941 (hereinafter referred to as "the Rules of 1941") provides that in calculating the taxable turnover of a registered dealer, the turnover as specified in the sub-rules and clauses therein shall be deducted from the gross turnover. Sales of woollen fabrics were exempted from payment of sales tax under rule 3(28) of the....
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.... dated December 12, 1982. The appeal is still pending. Similarly, for the period of four quarters ending on December 31, 1980, the respondent No. 1 has made assessment without allowing the claim of the applicant for deduction of the sale proceeds of carpets from the taxable turnover under rule 3(28) of the Rules of 1941. The applicant has received notice in form VII for that assessment for the period of four quarters ending on December 31, 1980 on December 5, 1984. On December 5, 1984, the applicant has also received notice in form VI under sections 11 and 14(1) of the Act of 1941 for hearing of the assessment case of the applicant on March 12, 1985, for the period of four quarters ending on December 31, 1981, after the applicant submitted returns for the four quarters ending on December 31, 1981 and on December 31, 1982. The applicant had also filed returns for the period of four quarters ending on December 31, 1983 and December 31, 1984, on claiming deduction of sale proceeds of carpets from gross turnover. On alleging that the respondent No. 1, the Commercial Tax Officer, has no competence or jurisdiction to issue the notice under sections 11 and 14(1) of the Act of 1941 for the....
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....rm VI for assessment for the period of four quarters ending on June 30, 1981. There is also a prayer for issuance of a writ in the nature of prohibition so that the respondents cannot give any effect to the Notifications Nos. 1820-F.T. and 1823-F.T., both dated April 1, 1975. 5.. The applicants in cases Nos. RN-314 of 1990 and RN-429 of 1990 are the same. They carry on business in partnership under the name and style of Bhalla's Carpet at 45, Park Street, Calcutta. Their case is that with a view to achieve the object of making trade, commerce and intercourse free throughout the territory of India, in accordance with articles 301 and 286 of the Constitution of India, certain goods were declared to be of special importance in inter-State trade or commerce in section 14 of the CST Act, 1956 and restrictions and conditions with regard to tax on sale or purchase of declared goods within a State were imposed by section 15 of the CST Act, 1956. When the Central Sales Tax Act was promulgated, woollen fabrics were not included in section 14 of that Act of 1956. With effect from October 1, 1958, woollen fabrics was included in section 14 of that Act of 1956, in sub-clause (x) of that sect....
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....The contention of the applicants in case No. RN-314 of 1990 is that in spite of this decision of the Division Bench of the Calcutta High Court a circular, being Circular No. 4936(125) C.T. dated March 28, 1990, was issued by the Commissioner of Commercial Taxes, West Bengal, stating that there was no bar to treat woollen carpets, irrespective of percentage of wool contents, as exigible to tax at 11 per cent. The applicants have challenged the jurisdiction of the Commissioner of Commercial Taxes, West Bengal, to issue such a circular. According to the applicants in case No. RN-314 of 1990, the concerned Commercial Tax Officer, Park Street Charge, made an assessment on February 6, 1989, in respect of the applicants for the period of four quarters ending on March 31, 1985. On March 14, 1990, the Assistant Commissioner of Commercial Taxes, South Circle, passed an appellate order in respect of the applicants for the period of four quarters ending on March 31, 1983 to the effect that carpets should be exigible to tax at the rate of 4 per cent because of the judgment of the High Court, Calcutta. Assessments are also being made by the concerned Commercial Tax Officer, Park Street Charge, i....
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....case No. RN-314 of 1990, the applicants have prayed for issuance of a writ of prohibition and an injunction so that the respondents cannot assess, levy or collect sales tax from the applicants on sale of woollen carpets at a rate exceeding 4 per cent. 7.. The applicant in cases Nos. RN-432 of 1990 and 281 of 1991 is Shri Surinder Singh, who carries on a proprietorship business of purchase and sale of woollen carpets under the name and style of Delstar Carpet Cleaning Company, having its head office at 5, Russel Street, Calcutta. The case of this applicant is that sale of such carpets will be exigible to tax at 4 per cent. The case of the applicant on this score is alike the case of the applicants in cases Nos. RN-314 of 1990 and RN-429 of 1990. For the period of four quarters ending on March 31, 1980 and March 31, 1981, there was an order of remand by the appellate authority in the light of the judgment of His Lordship honourable Mr. Justice D.K. Sen in the case of Madanlal Shroff [1980] 13 STA 211 (Cal) and thereafter the assessments of the applicant in respect of sale of carpets for these years was reduced to zero per cent on reassessment and the excess payment made by the app....
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....cant has prayed for quashing such assessment in case No. 77(D)/90-91 and has also prayed for writ of prohibition and a writ of mandamus so that the respondents cannot levy or collect sales tax at a rate exceeding 4 per cent. 9.. The respondents contest these cases by filing separate affidavits-inopposition. With the permission of this Tribunal, they have filed supplementary affidavits-in-opposition in cases Nos. RN-31(T) of 1992/RN-239(T) of 1989 and RN-351(T) of 1989. The case of the respondents in the affidavits-in-opposition and the supplementary affidavits-in-opposition filed in all these cases is the same. The case of the respondents is that woollen carpets resold by the applicants are commodities covered under item 24 in Schedule II of the Act of 1941 and is not covered by clause (x) of section 14 of the CST Act, 1956. As such, sales of woollen carpets are exigible to tax at the rate of 15 per cent. Previously there was no dispute regarding taxability of carpets under the Act of 1941 as blanket exemption on sales of such goods had been granted by clause (28) of rule 3 of the Rules of 1941 on the basis of Notification No. 182-F.T. dated January 19, 1966. Though carpets o....
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....he CES Act, 1944. Item No. 21 in the First Schedule to the CES Act, 1944 which was referred to as a definition of "woollen fabrics" in section 14(x) of the CST Act, 1956 suffered a series of amendments during the periods from 1977 to 1979. In 1979, Explanation III was inserted in item No. 21 of the First Schedule to the CES Act, 1944 with the result that floor coverings, falling under item No. 22G in that Schedule to the CES Act, 1944, was excluded. Floor coverings in item 22G meant carpets, carpeting and rugs. As Explanation III in item 21 of the First Schedule excluded floor coverings, meaning also carpets, carpets became exigible to tax at 15 per cent. These amendments made in the CES Act, 1944, were not placed before the Division Bench of the Calcutta High Court by the contesting parties, while delivering the judgment in the case of State of West Bengal v. Madanlal Shroff [1989] 72 STC 56; [1987] 20 STA 465. The respondents contend that as the law relating to woollen fabrics was incorporated by reference to item 21 in the First Schedule to the CES Act, 1944, in section 14(x) of the CST Act, 1956, woollen carpets became exigible to tax at the rate of 15 per cent after insertion ....
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....ve the same meaning as in items 19, 22, 21 and 4 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944)." Rule 3(28) of the Rules of 1941, as amended by Notification No. 1823-F.T. dated April 1, 1975, with effect from April 7, 1975, stood as follows: "3(28)(a) Sales of all varieties of textile fabrics (other than satranchi, carpets and druggets) made wholly or partly of cotton, staple fibre, rayon, artificial silk or wool including handkerchiefs, towels, bedsheets, bedspreads, table cloths, napkins, dusters, cotton velvets, and velveteen, tapes, niwars and laces. .................." Rule 3(28) of the Rules of 1941 was omitted with effect from June 1, 1987, by Notification No. 1794-FT dated June 1, 1987. Chapter IV of the CST Act, 1956 deals with goods of special importance in inter-State trade or commerce. Section 14 of the CST Act, 1956 during the period from October 1, 1958 to 1961 stood as follows, as regards clause (x) to that section "14. Certain goods to be of special importance in inter-State trade or commerce.-It is hereby declared that the following goods are of special importance in inter-State trade or commerce ................ (....
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....ot already paid The duty for the time being leviable on the base fabrics, if not already paid." There was at first no explanation to item 21 in the First Schedule to the CES Act, 1944. On and from August 8, 1977, Explanations I and II were inserted in item 21 of the First Schedule to the CES Act, 1944 to the following effect: "Explanation I.-'Base fabrics' means fabrics falling in sub-item (1) of this item which are subjected to the process of embroidery". "Explanation II.-Explanation II under item No. 19 shall, so far as may be, apply in relation to this item as it applies in relation to that item." In 1979 Explanation III was inserted in item 21 of the First Schedule to the CES Act, 1944. It runs as follows: "Explanation III.-This item does not include floor coverings falling under item 22G." Item 22G runs as follows: "22G. Floor coverings, namely:- Carpets, carpeting and rugs (made up or not). Thirty per cent ad valorem Explanation I.-This item does not include dari, sataranji, namdahs, jute carpets and coir carpets. Explanation II.-This item shall include carpets, carpeting and rugs having the characteristics of floor coverings but intended for use fo....
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....957, it cannot be stated that prior to issuance of Notifications Nos. 1820-F.T. and 1823-F.T. dated April 1, 1975, which came into effect from April 7, 1975, amending rule 3(28) of the Rules of 1941 by excluding satranchi, carpets and druggets from the purview of textile fabrics, there was any tax on carpets. This contention cannot be accepted. It has been held by the Supreme Court in the case of Collector of Central Excise v. Andhra Sugar Ltd. [1989] 73 STC 216 that the meaning ascribed to a notification by the authority issuing a notification is a good guide for the position of law. The duty of enforcing the provisions of the Act of 1941 and the Rules of 1941 lies with the Directorate of Commercial Taxes, West Bengal. As already stated, though rule 3(28) of the Rules of 1941 exempted sales of woollen fabrics from gross turnover, item 24 was inserted in Schedule II to the Act of 1941 as a result of which carpets of all varieties and descriptions became exigible to tax with effect from November 16, 1967. Naturally there were queries with regard to taxability as well as rate of tax in respect of different kinds of carpets, in view of the provisions in section 14(x) of the ....
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....such goods and the States were compensated by payment of part of the net proceeds of the additional duty on such goods. Originally, the 1957 Act levied additional excise duty on sugar, tobacco, cotton fabrics, rayon or artificial silk and woollen fabrics, these goods having the meanings respectively assigned to them in items 8, 9, 12, 12A and 12B (changed subsequently as items Nos. 1, 4, 19, 21 and 22 respectively) of the First Schedule to the CES Act, 1944. The levy of additional excise duty on these goods did not preclude the State Legislatures from levying any sales tax, provided such levy was in accordance with the restrictions contained in the CST Act, 1956. By levying sales tax on an item covered by the Schedule to the 1957 Act, the State was to forgo its share on distribution of the proceeds of the additional excise duty levied on such item. It was for the State Legislature to determine whether it should impose sales tax on an item of declared goods, limited by the restrictions in section 15 of the CST Act, 1956 and at the risk of losing a share in the additional excise duty levied in respect of these items. When, in exercise of this discretion, the State of West Bengal made....
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....not be germane. The contention by some of the applicants in some of the cases, viz., cases Nos. RN-314 of 1990, RN-429 of 1990, RN-432 of 1990 and RN-281 of 1991 that they deal with hand-made, hand-tufted and hand-knitted woollen carpets, which are exempted from tax, cannot be accepted on the basis of this Division Bench decision in the case of State of West Bengal v. Madanlal Shroff [1989] 72 STC 56 (Cal); [1987] 20 STA 465 (Cal) to the effect that neither the process of manufacture nor application or use of the product would be decisive and that what would be relevant would be whether the product was manufactured wholly of wool or it contained 40 per cent or more by weight of wool and secondly whether the finished product was commonly considered as a carpet. 15. Mr. Somen Bose, the learned Senior Advocate for some of the applicants has contended that this judgment of the Division Bench in the case of State of West Bengal v. Madanlal Shroff [1989] 72 STC 56; [1987] 20 STA 465 (Cal) should be followed by the Revenue till May 12, 1988, up to which date section 14(x) of the CST Act, 1956 remained unamended in spite of amendments of the CES Act, 1944 in 1977 and 1979 and the....
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....t C.R. No. 8055(W) of 1982 was forwarded to this Tribunal from the High Court, Calcutta, for disposal under section 15 of the West Bengal Taxation Tribunal Act, 1987 and the case was registered in this Tribunal as RN-125(T) of 1990, an order was passed by this Tribunal on August 17, 1990, directing the respondents to make assessments for the impugned period relating to four quarters ending in March, 1977, on the basis of the decision reported in [1989] 72 STC 56 (Cal); (1987) 20 STA 465 (Cal), viz., the Division Bench decision in the case of Madanlal Shroff. This order was passed by this Tribunal as it was not disputed before this Tribunal on August 17, 1990 that the Division Bench decision of the Calcutta High Court in the case of Madanlal Shroff [1989] 72 STC 56; [1987] 20 STA 465 (Cal) held the field. Similarly, Matter No. 4177 of 1987 in the High Court, Calcutta (B.D. Kuller v. Commissioner of Commercial Taxes, West Bengal) was forwarded to this Tribunal under section 15 of the West Bengal Taxation Tribunal Act, 1987 and was registered as case No. RN-377(T) of 1989. That case No. RN-377(T) of 1989 was disposed of by this Tribunal by an order passed on February 1, 1990. By th....
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....the First Schedule to that CES Act, 1944, as a result of the amendments of the CES Act, 1944 in 1979 was due to the fact that that case related to an assessment for a period prior to the amendment of the CES Act of 1944 in 1979. As already stated, the Division Bench decision arose out of the single Bench decision by honourable Mr. Justice D.K. Sen in Civil Rule No. 12324(W) of 1975 (Madanlal Shroff v. State of West Bengal [1980] 13 STA 211 (Cal) which was disposed of by honourable Mr. Justice D.K. Sen on November 13, 1979. It may be that as the Division Bench decision related to an assessment for a period prior to the amendment of the CES Act, 1944, in 1979, the insertion of Explanation III to item No. 21 or the insertion of a new item No. 22G in the First Schedule to the CES Act, 1944, was not mentioned before the Division Bench. It may also be that these facts were either overlooked or not known to the authorities. Whatever may be the reason for non-mention of Explanation III to item No. 21 or/and item No. 22G in the First Schedule to the CES Act, 1944 in the Division Bench judgment, the Division Bench judgment in the case of Madanlal Shroff [1989] 72 STC 56 (Cal); [1987] 20 STA ....
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....der item No. 22G. Jute carpets and coir carpets were left out of the purview of the item No. 22G. As already discussed with reference to trade circular No. 4/68 dated December 28, 1968, jute matting, jute carpets and embroidered handloom woven cotton carpets and embroidered mill-made and handloom woven woollen carpets were made exigible to tax in West Bengal under item 24 in Schedule II to the Act of 1941 read with rule 3(28) of the Rules of 1941 on and from November 16, 1967. It has also been shown, by referring to the amendment of rule 3(28) of the Rules of 1941 with effect from April 7, 1975, that since April 7, 1975 sataranji, carpets and druggets did not qualify for exemption from payment of tax under rule 3(28)(a) of the Rules of 1941 read with section 5(2)(a)(iv) (since omitted) of the Act of 1941. Woollen carpets were taken to be woollen fabrics in the Division Bench decision of the Calcutta High Court in the case of Madanlal Shroff [1989] 72 STC 56; [1987] 20 STA 465 (Cal) whether or not they were hand-made or hand-tufted or hand-knitted woollen carpets, under item No. 21 of the First Schedule to the CES Act, 1944. The applicants want us to follow this decision of the Divi....
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....of the Calcutta High Court in Madanlal Shroff v. State of West Bengal [1989] 72 STC 56; [1987] 20 STA 465 (Cal) that woollen carpets containing more than 40 per cent of wool should be treated as a declared goods since the same is included in item 21 of the First Schedule to the Central Excises and Salt Act, 1944. The said item No. 21 underwent substantial amendment in 1979 as a result of which carpets and floor coverings have been specifically omitted from the item. In such event, notwithstanding anything contained in section 14(x) of the CST Act, 1956, there is no bar to treat woollen carpet irrespective of the percentage of woollen contents as an item included in Schedule II appended to the Bengal Finance (Sales Tax) Act, 1941 for the purpose of taxation under section 5(1)(d) of the said Act, 1941. This is for information to all concerned." 21.. Mr. Somen Bose, learned Senior Advocate for some of the applicants, has contended that exemption by way of providing for tax on woollen fabrics at 4 per cent under section 15(a) read with section 14(x) of the CST Act, 1956, cannot be taken away by issuing the trade circular dated March 28, 1990. His contention is that as section 14(....
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....ose. Exemption is freedom from liability, tax or duty. Both the aforesaid cases, referred to by Mr. Bose, relate to freedom from liability to pay tax. In these cases Mr. Bose does not contend that woollen carpets should be exempted from payment of any tax whatsoever. His contention is that the taxation of woollen carpets should not exceed the rate of 4 per cent, as provided in section 15(a) read with section 14(x) of the CST Act, 1956. In the circumstances the cases reported in [1991] 83 STC 251 (SC); AIR 1991 SC 2049 (Union of India v. Wood Papers Ltd.) and [1991] 83 STC 234 (SC); AIR 1991 SCW 2851 (Mangalore Chemicals & Fertilizers Limited v. Deputy Commissioner of Commercial Taxes) can have no application in these cases. 22.. Reference has been made by Mr. Somen Bose, learned Senior Advocate for some of the applicants, to the case of State of Kerala v. Attesee (Agro Industrial Trading Corporation) [1989] 72 STC 1 (SC) for the purpose of contending that the rate of tax on woollen fabrics at 4 per cent should be continued till May 12, 1988 up to which section 14(x) of CST Act, 1956, remained unamended since 1961. This contention cannot be accepted on the basis of the dec....
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....nt by way of insertion of twelfth clause in section 21 of the Indian Penal Code in 1958 and in 1964. The question in that case was whether the definition of "public servant" borrowed from section 21 of the Indian Penal Code should be read into section 2 of the Prevention of Corruption Act not only at the time when it was borrowed in 1947 but even at the material date when an offence was committed by an employee of Heavy Electricals (India) Ltd., Bhopal. In that case the Supreme Court extended the meaning given to the term "public servant", as referred to in section 2 of the Prevention of Corruption Act, 1947 by applying the enlarged definition contained in twelfth clause inserted in the Penal Code by the two amendments in 1958 and in 1964. This was done by the Supreme Court on a consideration of the fact that if the amendments to section 21 of the Indian Penal Code were not imported in section 2 of the Prevention of Corruption Act also, the provisions of the Prevention of Corruption Act, 1947 would be wholly unworkable and ineffectual. These principles regarding referential legislation by way of incorporation, as laid down by the Supreme Court in the case of State of Madhya Pradesh....
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....rom sales tax in respect of cotton fabrics under item 7 of the Third Schedule to the Kerala General Sales Tax Act, 1963. 25.. So far as the cases of the applicants are concerned, I am of the opinion that the mention of the definition of "woollen fabrics" in item No. 12B and subsequently in item No. 21 of the First Schedule to the CES Act, 1944 in section 14(x) of the CST Act, 1956 is by way of "incorporation" on the authority of the decision in the case of Narasimhan AIR 1975 SC 1835 and not by way of "reference" or "citation". The case of Attesee [1989] 72 STC 1 (SC) was a case of exemption from payment of sales tax and as such the referred or cited provision grew or shrank with the changes in the parent statute. In the cases of the applicants if the mention of item No. 12B and subsequently item No. 21 of the First Schedule to the CES Act, 1944 in the CST Act, 1956 is taken to be a case of incorporation, the repeal of the First Schedule of the CES Act, 1944 by section 4(2) of the CET Act, 1985 will not affect the definition of "woollen fabrics" as given in section 14(x) of the CST Act, 1956, if there had not been any amendment of item No. 21 of the First Schedule to the CES Act....
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....re by weight of wool should not exceed 4 per cent, the maximum prescribed by section 15(a) of the CST Act, 1956. This decision, though relating to a period prior to the amendment of item No. 21 in the First Schedule to the CES Act, 1944 in 1979, held the field even up to August 17, 1990 when it was not disputed even by the Revenue in the case of R.L. Chopra v. State of West Bengal in case No. RN-125(T) of 1990 before this Tribunal that the decision rendered by the Division Bench in the case of Madanlal Shroff [1989] 72 STC 56 (Cal); [1987] 20 STA 465 (Cal) held the field. The inference is that in proceedings for assessment even subsequent to the deletion of the First Schedule of the CES Act, 1944 by section 4(2) of the CET Act, 1985, the existence of section 4(2) of the CET Act, 1985 was either totally overlooked by the authorities concerned or were not known to the authorities. In this state of facts, balance of inconvenience inclines towards declaring now what I believe to be the law because of the amendment of item No. 21 of the First Schedule to the CES Act, 1944 in 1979. The courts dislike disturbing a long continuing practice, based on the prevailing judicial interpretation, ....
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....Division Bench of the Calcutta High Court in the case of Madanlal Shroff [1989] 72 STC 56; [1987] 20 STA 465 (Cal) to be "woollen fabrics", became exigible to tax at 4 per cent under section 14(x) read with section 15(a) of the CST Act, 1956. After the aforesaid amendment of the CES Act, 1944 in 1979, whereby woollen carpets were excluded altogether from the scope of item No. 21 of the First Schedule to the CES Act, 1944, woollen carpets ceased to be "declared goods" under section 14(x) of the CST Act, 1956 and became taxable under item No. 24 in Schedule II of the Act of 1941. Even then, after amendment of item No. 21 in the First Schedule to the CES Act, 1944 in 1979, woollen carpets would continue to be exigible to tax at 4 per cent on the basis of the Division Bench judgment in the case of Madanlal Shroff [1989] 72 STC 56 (Cal); [1987] 20 STA 465 (Cal) on a consideration of the undesirability of disturbing a settled construction and on a consideration of balance of inconvenience to the dealers. This position about the rate of tax on woollen carpets at the rate of 4 per cent from 1979 will continue up to May 12, 1988, when section 14(x) of the CST Act, 1956 was amended by incorp....
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....come within the purview of any of the headings in the Schedule to the CET Act, 1985, as mentioned in section 14(x) of the CST Act, 1956, on amendment with effect from May 13, 1988. In most of the cases there is a prayer for issuing a writ in the nature of mandamus as well as a writ in the nature of prohibition so that the respondents cannot levy or collect sales tax on woollen carpets at a rate exceeding 4 per cent. No such writ in the nature of mandamus or in the nature of prohibition will be issued as the question of rate of tax on woollen carpets, containing 30 per cent or 40 per cent by weight of wool, has been decided up to May 12, 1988 on the basis of the principle of undesirability of unsettling a settled construction and the balance of inconvenience and not on any other basis. The result is that some of the cases can at best be allowed in part. 30.. Case No. RN-31(T) of 1992/RN-239(T) of 1989 arises out of a writ petition under article 226 of the Constitution, which was registered as C.R. No. 4109(W) of 1985 by the High Court, Calcutta. In that civil rule there was an adinterim order on April 18, 1985, permitting the respondents to proceed with assessments, though no eff....
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....t should be set aside and fresh assessment should be made in accordance with this judgment. 32.. In case No. RN-314 of 1990 Commissioner's trade circular dated March 28, 1990 as well as the notices dated April 6, 1990 and June 6, 1990 for reopening the assessments for the four quarters ending on March 31, 1980 and March 31, 1985 will be quashed, though there will be no declaration or any writ in the nature of prohibition or any order of injunction, as prayed for. As interim order was passed by this Tribunal on June 29, 1990. If, in pursuance of this order of this Tribunal, any assessment has been made by the authority concerned, which is not in accordance with this judgment, the assessment should be set aside and fresh assessment should be made in accordance with this judgment. 33.. In case No. RN-429 of 1990 the notice of review in form IX will not be quashed as subsequently an order was passed on October 30, 1990, by the respondent No. 3 of the case. This order dated October 30, 1990 will be quashed, though there will be no writ in the nature of mandamus or any writ in the nature of prohibition. A stay order was passed by this Tribunal on December 14, 1990, in this case for....