TMI Blog2007 (2) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... 001 and the second petitioner is one of the partners of the partnership firm. The petitioner-firm is registered under the VAT Act and also was registered under the West Bengal Sales Tax Act, 1994 (in short, 94 Act ). VAT Act came into force on and with effect from April 1, 2005. Entry against serial No. 37A of Schedule A of the VAT Act reads as below: (i) Textile fabrics made wholly or partly of cotton, rayon, flax, artificial silk or wool manufactured or made in India, other than those specified elsewhere in any other Schedule. (ii) Cotton textile fabrics, coated, covered, impregnated or laminated with plastics when such fabrics are manufactured or made in India, mosquito net fabrics and mosquito net, commonly known as mashari. There was no other specific entry in any of the Schedule with regard to handkerchief. The petitioner thought it prudent to have the clarification from the Public Relations Officer, Commercial Tax Office, Kolkata, in the matter and sent an e-mail on June 3, 2005 seeking the opinion of the Public Relations Officer, Commercial Tax Office as to the rate of tax on sales of handkerchief under the VAT Act. By a return e-mail dated June 6, 2005, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilk cloth, rubberised cloth, belting, pipes (including hose pipes) sataranchi, carpets and druggets, when such textile fabrics are manufactured or made in India. It was his contention that handkerchiefs being sold by the petitioner are made out of cotton fabrics. Cotton fabrics are cut into small pieces and stitched on all sides. It was, therefore, contended that handkerchiefs are nothing but cotton fabrics and, therefore, should be considered to be an item falling within the meaning of textile fabrics as mentioned against serial No. 37A of Schedule A to the VAT Act. Therefore, it was not just and proper for respondent No. 2 to hold handkerchiefs as a separate item not coming within the ambit of textile fabrics. In support of his contention, he has placed reliance on the decision of the honourable Calcutta High Court in the case of Delhi Cloth and General Mills Co. Ltd. v. Commercial Tax Officer, Central Section, West Bengal reported in [1975] 36 STC 575. In that case, it was held that bed sheets, bed spreads, towels and napkins cut into consumer length from running pieces of cotton fabrics and stitched at both ends by a mill manufacturing cotton fabrics continued to be cot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly included within the meaning of textile fabrics of all varieties made wholly or partly of cotton, rayon, artificial silk or wool when such textile fabrics are manufactured or made in India. By this inclusion, as per submission of the State Representative, Legislature intended to include handkerchief specifically within textile fabrics though generally it does not fall within the meaning of textile fabrics as understood by public in general. On the contrary, there is no inclusion clause in item 37A of Schedule A to the VAT Act. Handkerchief was, however, specifically included in Part I of Schedule C to the VAT Act against item No. 10A along with bed sheets, bed spreads, bed covers, towels, napkins, table cloth, duster, sataranchi and blankets. These items, no doubt, are made out of textile fabrics but these are all stitched items. They form a class by themselves. Admittedly, those items along with handkerchief were inserted in Part I of the Schedule C to the VAT Act with effect from February 1, 2006. Since, there was no specific entry of such items in any of the Schedule of the VAT Act prior to February 1, 2006 such items should be treated as a residuary item covered by Schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Delhi Cloth and General Mills' case [1975] 36 STC 575 also considered the entry against sub-rule (28) of rule 3 of the West Bengal Sales Tax Rules, 1941. But this rule stands omitted by Notification with effect from June 1, 1987. Therefore, in the changed scenario, this judgment of the honourable Calcutta High Court does not help the petitioner. He also drew our attention in the fact that the honourable judges of the Madras High Court while deciding the case of Deputy Commissioner (C.T.), Coimbatore Division v. South India Traders [1982] 50 STC 106 also considered the definition of cotton fabrics in item 19 of the First Schedule to the Central Excises and Salt Act, 1944. Since the said Schedule has been replaced by the Schedule to the Central Excise Tariff Act, 1985 this decision also, as submitted by learned State Representative, has no applicability in this case. In the case of Laxmi Ratan Cotton Mills Co. Ltd. v. Commissioner, Sales Tax, Uttar Pradesh, Lucknow [1969] 24 STC 245 (All) the question before the honourable judges of the Supreme Court was whether fents, towels and bed sheets were falling within entry No. 5 of Notification No. ST-905 /X dated March 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst entry 37A of Schedule A to the VAT Act. These items, as a group, have been entered in Schedule A to the VAT Act against a new item 3B. A textile fabric is a fabric which is woven or may be woven or a fabric made by weaving. But for taxing purposes, articles, made out of textile fabrics coming into existence after any sort of processing, should be interpreted in the manner it is understood by the public in general and entry in the respective Schedule should be taken into consideration. Moreover, the inclusive clause extends the definition of a thing which is not normally attributed to it. Under the 1994 Act, handkerchief along with other similarly placed items had been included in textile fabrics by an inclusive clause thereby making it clear that these items do not normally fall within the meaning of textile fabrics . Records also reveal that the petitioner was himself not satisfied with the views expressed by the Assistant Commissioner of Commercial Taxes/PRO of the Commercial Taxes Directorate and that is why he sought for the specific opinion of the Commissioner of Commercial Taxes under section 102 of the VAT Act. The petitioner has taken the unnecessary risk of not ..... 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