TMI Blog2013 (1) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... i R.N. Bajoria, Sr. Counsel, Sumit Kumar Chakraborty, Debanuj Basu Thakur and Piyal Gupta, for the Petitioner. Mrs. Seba Roy, for the Respondent. [Judgment per : Kalyan Jyoti Sengupta, J.]. 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 . 2. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Such exemption was withdrawn only under the West Bengal Value Added Tax Act, 2003.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 reported in 1978 (2) E.L.T. (J350) at pages 353-354. (b) Commissioner of Central Excise, Hyderabad v. Sunder Steels Limited reported in 2005 (181) E.L.T. 154 (S.C.) at page 155. (c) Union of India and Others v. Tata Iron Steel Company Limited reported in 1977 (1) E.L.T. (J61) (S.C.) at 165. Therefore all the judgments and orders inclusive that of the learned Tribunal ought to be set aside by this Court. 4. 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 sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its that there is another aspect of the matter for not allowing the claim of exemption is that First Schedule to the Additional Duty of Excise (Goods of Special Importance) Act, 1957 specifies the goods on which additional excise duty is leviable. Synthetic wire cloth has not been mentioned in the said schedule of the ADE Act. Hence no interference of the judgment and order of the authorities below are called for and this application should be dismissed. 6. After hearing the learned counsel for the parties and having gone through the impugned judgment and order of the learned Tribunal, bereft of all details we think in this matter moot question is whether the petitioner s product synthetic wire fabric can be treated to be textile fabrics of all varieties mentioned in Serial No. 81 of the first schedule of the 1994 Act. We therefore set out the exact text of Entry 81 : Textile fabrics of all varieties made wholly or partly of cotton, rayon, artificial silk or wool, including handkerchiefs, towels, bed-sheets, bed spreads, table cloth, napkins, dusters, cotton velvets and velveteen tapes, niwars and laces, whether embroidered or not, but excluding pure silk cloth, rubberized clo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the warp and woof pattern. Whatever be the mode of weaving employed, woven fabric would be textiles . What is necessary is no more than weaving of yarn and weaving would mean binding or putting together by some process so as to form a fabric. In the said case factually Supreme Court found that dryer felt could meet the tests laid down by the Supreme Court and it was held that the dryer felts are textiles. 8. In this case it was found that the product of the petitioner is woven product however upon examining the materials tests are satisfied. We think that the petitioner s products comes within the purview of textile fabrics. The phrase textile fabrics of all varieties has sweeping coverage of every description as far as ingredient is concerned. In an opinion trustee of silk is not the material nor relevant in this matter. It appears that learned Tribunal has been swayed by the decision of the Constitution Bench of the Supreme Court in case of Filter Co. Another v. Commissioner of Sales Tax, Madhya Pradesh and Another reported in (1986) 61 STC 318. According to the learned counsel for the respondent the Constitution Bench of the Supreme Court is the decisive factor in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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