9911796707
TMI Blog2013 (1) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... lyester 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cloth, belting, pipes (including hose pipes) sataranchi, carpets and druggets, when such textile fabrics are manufactured or made in India." 7. It appears from the record that the petitioner has clearly stated the manufacturing process of its product. It is stated that the same is woven fabric and nylon and polyester monofilament yarns and no dispute with this regard has been raised. Even the learned Tribunal has accepted this admitted factual position. The learned Tribunal has examined the samples of the goods produced before it, who however, did not feel so soft lustrous like silk. So it was held that it is not artificial silk. We think the learned Tribunal's approach is legally erroneous as the silk is one of the materials of the products. Therefore the attribute of lustree is not a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 matter, we are unable to agree with his submission. Supreme Court in this case has noted that Porritts case was wholly different. Significantly Porritts case is substantial guidance in this matter to conclude what are the textile materials. However, we notice in the Filter Co. the Supreme Court was dwelling upon as to whether woollen felts comes within the purview of the definition of cloth. Having gone into the factual score on manufacturing process of the woollen felt there is no involvement of any weaving process as such it does not fall within the purview of definition cloth as mentioned in the concerned statute. At page 323 of the report it is held as follows :- "In order to attract the benefit of the exemption conferred by entry 6 of Schedule I of the Act, the goods must fall w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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