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M/S ALLIED AGENCIES SRI SHARAT SETH versus THE COMMISSIONER TRADE TAX U.P.,LKO.

High Court of Judicature at Allahabad

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M/S Allied Agencies Sri Sharat Seth v. The Commissioner Trade Tax U.P.,Lko. - SALES/TRADE TAX REVISION No. 412 of 1999 [2006] RD-AH 5738 (9 March 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

TRADE TAX REVISION NO.412 OF 1999

AND

TRADE TAX REVISION NO.413 OF 1999

AND

TRADE TAX REVISION NO.414 OF 1999

M/S Allied Agencies, Nayaganj, Kanpur.              Applicant

Versus

The Commissioner of Trade Tax, U.P., Lucknow.                     .Opp.party

...............

Hon'ble Rajes Kumar, J.

Present three revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 30th August, 1999 relating to the assessment years, 1993-94, 1994-95 and 1995-96.

Dispute relates to the taxability of canvas cloth made of jute. According to the applicant, canvas cloth made of jute is exempted under Notification no. ST-II-303/X-89-7 (5)-88-U.P. Act-XV/48-Order-89, dated 1.2.1989 under the entry "canvas cloth, tarpaulins and water-proof cloth". Assessing authority rejected the claim of the applicant and taxed so-called canvas cloth made of jute at the rate of 6.6 percent under the entry "Jute and Hemps goods" of Notification no. ST-II-7551/X-7 (23)-83-U.P. Act XV-48-Order-85, dated 31.10.1985. Tribunal held that the canvas cloth made of jute is jute cloth and, therefore, it is not exempted under the notification no.ST-II-303/X-89-7 (5)-88-U.P. Act-XV/48-Order-89, dated 1.2.1989.

Heard learned counsel for the parties.

It is useful to refer the finding of the Tribunal, which are as below:

"After hearing both the parties at length, perusing the papers on record very carefully, going though the case law on which our attention has been invited, we find that the appellant dealers in canvas. The canvas dealt in by the appellant is made of jute and since it is made of jute, the authorities below treated it as jute goods and taxed the same. The appellant purchases canvas from its manufactures situated in Calcutta. The appellant is a registered dealer in canvas cloth made of jute. The assessee relied on the Notification No. ST-II-3714/X-6 (1)/85-U.P. Act 15/48-Order-85, dated 5.6.1985. Entry No.53 of this notification provides exemption on the Textiles of the following varieties manufactured on powerloom, excluding durries, carpets, druggets, hosiery goods, readymade garments, hessian or jute cloth and cotton rayon or nylon tyre cord fabrics, tyre cord or tyre cord wrap sheet, PVC/HDPE fabrics and cotton beltings but including the goods specified in annexure. Jute and hemp goods has been made taxable under Entry no.24 of the Notification no. ST-II-7551/X-7 (23)-83-U.P. Act XV-48-Order-85, dated 31.10.1985. We are of the opinion that jute canvas cloth is a jute cloth and therefore, is taxable under this Notification. The assessee has cited before us the different meanings of canvas given in different dictionaries, but the fact is that the appellant deals in canvas, which is made of jute, which is taxable. In the case of M/S Kanpur Plastipack Vs. CST (1995 UPTC Page 110), the Hon'ble High Court, dealing with this Entry No.53 has held that in this Notification, only those goods have been exempted, which are generally used in human clothings and linen. Since the commodity in question cannot be used as human clothing and is used as packing material, it cannot be exempted under this Entry No.53. Further the commodity in question is not according to the standard prescribed in Indian standard specification and Deputy Director (Design)'s certificate. According to Notification No. 7038 dated 31.1.85, all kinds of jute cloth has been excluded from exemption. In the common parlance, the goods dealt in by the assessee is known as Tat which is used as packing material. In the grounds of second appeal, the assessee has mentioned that learned A.C. (J) Trade Tax in Appeal Nos.835/83 (88-89) and 3/93 (97-98) in the case of M/S Vinod Kumar Sunil Kumar decided on 6.7.96 has held that the canvas cloth is exempt. It was further mentioned that this judgment of the learned first appellate authority was even confirmed by the Hon'ble High Court, but the assessee has not filed copies of those judgments before us. As regards to the judgment of the Hon'ble High Court given in its case reported in 1998 UPTC Page 1071, in this case, the question involved for decision was regarding use of form 31 in the import of the goods in question. The question of taxability of the goods in question was not decided by the Hon'ble High Court. This case was related to the penalty proceeding drawn u/s 15-A (1) (o) of the Act. Therefore, we are firmly of the opinion that the canvas cloth made of jute is also covered under the Entry No.24 of Notification No.7551 dated 30.10.1985 and is taxable as jute and hemp goods. The authorities below were fully justified in taxing the same."

Learned counsel for the applicant submitted that the canvas cloth made of jute is a canvas cloth and, therefore, exempted from tax under Notification no. ST-II-303/X-89-7 (5)-88-U.P. Act-XV/48-Order-89, dated 1.2.1989.In support of his contention that the canvas cloth made of jute is canvas cloth, he relied upon the dictionary meaning given in Oxford Illustrated dictionary, Encyclopedia Britannica, Concise English Dictionary, Webster Dictionary, Murrary's Dictionary and Indian Standard Specification. He submitted that canvas cloth made of jute is not a jute cloth and, therefore, exempted from tax. He submitted that in a case where there is an ambiguity in the language and there is a conflict in the entry, the interpretation, which is more beneficial to the assessee, has to be adopted. In support of his contention, he relied upon the decisions in the case of Commissioner of Income Tax Versus Vegetable Products Ltd reported in 88 ITR, 192, M/S Motor Industries Co. Ltd., Lucknow Versus State of U.P. and another reported in 1994 UPTC 685, Commissioner of Sales Tax Versus M/S Magan Mal Nemi Chand, Agra reported in 1995 UPTC 912, Bharat Vijay Mills Ltd Versus Commissioner of Commercial Taxes reported in 85 STC 23, Mahalaxmi Polyplast Private Limited Versus State of Uttar Pradesh and another reported in 86 STC 523 and Mamta Surgical Cotton Industries Versus Assistant Commissioner (Anti-Evasion), Bhilwara reported in 136 STC 317.

Learned Standing Counsel submitted that before the assessing authority applicant had filed the sample of the disputed item and the same is available on record. He has produced the record along with the sample of canvas cloth made of jute. He submitted that the canvas cloth made of jute, the item in dispute, is a stout cloth commonly used for the manufacturing of bags for filling food grain etc. He submitted that its weaving is dense than the weaving in the case of hessian cloth to make it more stout to bear more load and it is nothing but a jute cloth which is manufactured and sold in length. He submitted that the jute cloth is specifically excluded from the Textile and, therefore, it is not exempted under the entry relating to the Textile of Notification No. ST-II-3714/X-6 (1)/85-U.P. Act 15/48-Order-85, dated 5.6.1985 and Notification no. ST-II-303/X-89-7 (5)-88-U.P. Act-XV/48-Order-89, dated 1.2.1989. He further submitted that the canvas cloth mentioned in the Annexure of the aforesaid notification is to be read as canvas cloth other than jute cloth to harmonize the interpretation. He submitted that there is absolutely no ambiguity or any confusion in the entry of Notification. Thus the decisions cited by the learned counsel for the applicant are not relevant and applicable to the present case.

Having heard the learned counsel for the parties, I have perused the order of the Tribunal and the authorities below.

Notification No. ST-II-3714/X-6 (1)/85-U.P. Act 15/48-Order-85, dated 5.6.1985 reads as follows:

Published in U.P. Gazette, dated 5.6.1985.

In exercise of the powers under clause (a) of Section 4 of the Uttar Pradesh Sales Tax Act, 1948 (U.P. Act No. XV of 1948), read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No.1 of 1904), the Governor is pleased to make, with effect from June 6, 1985, the following amendments in Government notification No. ST-2-7038/X-7 (23)-83-U.P. Act XV/48-Order-85, dated January 31, 1985:

AMENDMENTS

In the Schedule to the aforesaid notification,-

(1) for the existing entries in column 2 against serial numbers 7, 10, 43 and 53, the following entries shall respectively be substituted, namely:

53. Textiles of the following varieties manufactured on powerloom, excluding durries, carpets, druggets, hosiery goods, readymade garments, Hessian or jute cloth and cotton, rayon or nylon tyre cord fabrics, tyre cord or tyre cord warp sheets, PVC/HDPE fabrics and cotton beltings, but including the goods specified in the Annexure hereunder:

(a) cotton fabrics of all varieties;

(b) rayon or artificial silk fabrics, including stapie fibre fabrics of all varieties.

(c) Woolen fabrics of all varieties.

(d) Fabrics made of a mixture of any two or more of the above fibres, viz cotton,  rayon, artificial silk, stapie fibre or wool;

(e) Canvas cloth, tarpaulins and water proof cloth.

Notification no. ST-II-303/X-89-7 (5)-88-U.P. Act-XV/48-Order-89, dated 1.2.1989 reads as follows:

"Published in U.P. Gazette, dated 1.2.1989

In exercise of the powers under clause (a) of section 4 of the U.P. Sales Tax Act, 1948 (U.P. Act No.XV of 1948) read with section 21 of the Uttar Pradesh General Clauses Act, 1904 (U.P. Act No. 1 of 1904), the Governor is pleased to make, with effect from February 1, 1989, the following amendment in Government Notification No. ST-II-7038/X-7 (23)-83-U.P. Act-XV-48-Order-85. dated January 31, 1985, as amended from time to time.

AMENDMENT

In the Schedule to the aforesaid notification, in the entry in Column 2 against S. No. 53, for clause (d), the following clause shall be substituted, namely,

(d) fabrics made of a mixture of any two or more of the above fibres, viz, cotton, rayon, artificial silk, staple fibre or wool, or of a mixture of any one or more of the above fibres with puresilk fibre in which pure silk fibre does not predominate by weight over any other single fibre".

The sample of the canvas cloth made of jute and the hessian are part of the assessment record and have been perused. The canvas cloth and hessian cloth both are commonly called as ''tat'. The difference between the hessian cloth and the canvas cloth made of jute is that the canvas cloth is more stout densely weaved and load bearing, while hessian is loosely weaved and bear less load, but undoubtedly, canvas cloth made of jute is a jute cloth and are being manufactured and sold in length. It may be called as canvas cloth because it is stout, densely weaved and has more load bearing capacity. The word " canvas " has been defined in various dictionaries as follows.

The terms ''canvas '' according to Oxford Illustrated dictionary means.

"Strong unleached cloth of hemp or flax, for sails, tents, paining on; open kind used as basic for tapestry and embroidery."

Encyclopaedia Britannica defines canvas as follows.

"Canvas- astout which probably derives its name from cannabis and Latin word for hemp........All flax canvas is essentially of double wrap; for it is invariably intended to withstand some, pressure or rough usage. In structure it is similar to jute Tarpaulin, begging tarpaulin, and canvas from an ascending series of cloth, so far as finness is concerned, although the finest tarpauline are finer than some of the lower canvasons. The cloth may be natural colour, leached or dyed, a very common colour being tan."

Concise English Dictionary defines canvas as follows:

"A course unbleached cloth made of hemp or flax, formerly used for chitting, now for sails, tents, paintings etc. sails, the sails of a ship, a sheet of canvas for all the end of a recing-boat."

Webster Dictionarydefines canvas as follows"

"Canvas- a course cloth made of hemp cotton, or flax, used for tents, sail of ships, paintings and other purposes, a clean, unbleached cloth, loosely woven in little squares, used for needle- word."

Murray's Dictionary defines canvas as follows"

"A strong or course unbleached cloth made of hemp or flax.

All kinds of vegetable fibres are used in their production, chief among which are cotton, flax and jute. The yarns are almost invariably two or more ply."

Indian Standard Specification for Jute Canvas defines the term Jute Canvas as under:

"2-1 JUTE CANVAS- A plain weave cloth made wholly of jute with double warp and single weft interwoven, weighing not less than 407 g/m. The number of warp threads 9ends0 per dm shall be more than 118 and the number of weft threads (picas) per dm shall not less than 55". "

From the perusal of the aforesaid dictionary meaning, there is no doubt that the canvas cloth can be made of jute also. It is mainly defined as strong, stout cloth. To my mind, the cloth manufactured by the applicant may be a canvas cloth, but being made of jute, is a jute cloth. Jute cloth is specifically excluded from the Textile under the Notification, therefore, it cannot be held exempted from tax. Canvas cloth which is one of the item mentioned in Annexure and included in textile has to be read as a canvas cloth other than jute cloth. In this view of the matter, canvas cloth made of jute being jute cloth is not exempted from tax under Notification No. ST-II-3714/X-6 (1)/85-U.P. Act 15/48-Order-85, dated 5.6.1985 and Notification No. ST-II-303/X-89-7 (5)-88-U.P. Act-XV/48-Order-89, dated 1.2.1989. Canvas cloth made of Jute, being made of jute is a jute goods and liable to tax under the entry " Jute and Hemps goods". The order of the Tribunal is, accordingly, upheld. The decisions cited by learned counsel for the applicant are not relevant and are not applicable to the present case. In my view, there is no ambiguity in the entry. Under the entry of "Textile", jute cloth is specifically excluded. Thus, Canvas cloth made of jute being jute cloth would be considered to be excluded from entry of  "Textile". In the Annexure of the entry, canvas cloth is mentioned and is included in the entry of "Textile". The inclusion is of canvas cloth and not of "Canvas cloth made of Jute". If the inclusion would be of canvas cloth made of jute, it may lead to confusion and give a scope of interpretations. Thus, in my view, canvas cloth made of Jute is not covered under the entry "Textile" of Notification no. ST-II-303/X-89-7 (5)-88-U.P. Act-XV/48-Order-89, dated 1.2.1989.

For the reasons stated above, all the three revisions are devoid of any merit and are, accordingly, dismissed.

Dated.09.03.2006

VS.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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