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TMI Blog2018 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, all the revision petitions are decided by common judgment. For consideration by this Court the revisionist has referred the following questions by stating that the same are questions of law which are to be decided by this Court. In the revision petitions related to U.P. Trade Tax Act following questions are referred:- "A. Whether the Tribunal was legally justified in holding the goods manufactured by the applicant is not a textile exempted under the Act by virtue of Notification No. 7038 dated 31.01.19985 but Tapes/Laces covered by Notification No. 2376 dated 23.11.1998 only the basis of common parlance meaning without even taking on record the opinion of the people who are conversant with it and dealing with the said goods? B. Whether the Tribunal was legally justified in permitting the revenue to take different stands on the same issue in view of the full bench judgment of the Hon'ble Apex Court in the case of C.C.E. Mumbai Vs. M/s Amar Bitumen & Allied Products Pvt. Ltd. (supra)? C. Whether the Trade Tax Tribunal was legally justified in taking a different view from that taken by the other co-ordinate bench in the applicants sister concern's case for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the classification issue only on the basis common parlance meaning when cotton fabrics has been defined under the Central Sales Tax Act in view of the judgment of the Hon'ble Apex Court in the case of Indo International Industrial Vs. Sales Tax Commissioner, U.P.? E. Whether the Tribunal was legally justified in rejection the applicant's claim of stock transfer without even examining each and every transaction in view of the Hon'ble Apex Court judgment in the case of M/s Tata Engineering & Locomotive Co. Ltd. Vs. Assistant Commissioner, Commercial Taxes (supra)? F. Whether in the facts and circumstances of the case, the Tribunal was legally justified in confirming the rejection of account books as well as the enhancement of turnover on the basis of the survey report dated 10.03.1998, which does not contains any evidence of suppression of turnover etc. as admitted by the assessing authority in the assessment order for the year 1997-98?" Brief facts of the case are that the revisionist-assessee was a limited company and was engaged in manufacturing and sale of 'Narrow Woven Fabrics' from its indigenously manufactured raw material, namely, Poly Propylene Mult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the above relevant notifications are necessary to be incorporated:- "-: English translation of Vitta Bikri-kar Anubhag-2, Noti. No. S.T.-2-7038/X-7 (23)/83-U.P. Act XV-48-Order-85, dated 31st January, 1985, published in U.P. Gazette, Extraordinary, dated 31-1-1985. (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, and PVC/HDPE fabrics, but including the goods specified in Annexure hereunder:- a. cotton fabrics of all varieties; b. rayon or artificial silk fabrics, including staple fibre fabrics, of all varieties; c. woollen fabrics of all varities; d. fabrics made of a mixture of any two or more of the above fibres, viz. Cotton, rayon, artificial silk, staple fibre or wool; e. Canvas cloth, tarpoulins and waterproof cloth. -: English translation of Vitta (Bikri-kar) Anubhag-2, Noti. No. ST-II-3714//X-6(1)-85-U.P. Act-15/48-Order-85, dated June 5, 1985, published in U.P. Gazette Extraordinary, dated June 5, 1985. (53). Textiles of the following varieties manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Authority, the Joint Commissioner (Appeals) 1st, Trade Tax, NOIDA. The Joint Commissioner (Appeals) by his common order dated 23.05.2006 has rejected all the eight appeals, filed by the revisionist, by upholding the order of the assessing authority. For the perusal, the relevant finding recorded by the First Appellate Authority are necessary to be placed:- Aggrieved by the order passed by the Joint Commissioner (Appeals) Second Appeals are filed by the assessee before the Trade Tax Tribunal, which have been decided and are dismissed by the Tribunal by its common judgment and order dated 21.09.2006, by which the Tribunal has affirmed the orders passed by the Assessee Authority as well as the First Appellate Authority, hence the present revisions. Learned counsel for the revisionist has submitted that at the time when the revisionist company manufactured the NWF it falls within the ambit of 'cotton fabrics of all varities', therefore he claimed that the aforesaid item, namely, NWF is exempted from payment of tax. Learned counsel for the revisionist has placed reliance on the notification no. 7038 dated 31.01.1985, as amended by notification no. 3714 dated 05.06. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent types of act, such as singing, dancing, and comedy. Origin C 15: from Fr. Varities or L. Varities, from various (see Various)." Thus, different varities of "cotton fabrics" are exempted from the tax under the Act, 1948. Textile fabrics impregnated, coated, covered or laminated with PVC (Polyvinyl Chloride) are treated as textile fabric." Learned counsel for the revisionist has placed reliance on a judgment of this Court in the case of Commissioner Trade Tax U.P. Lucknow Vs. Moti Lal Dali Chand Pvt. Ltd. (2009) 21 VST 191 (Allahabad). The above case referred arises out of the order passed by the Tribunal, by which the Tribunal has held that 'NWF' and Braided Cords Fall under the category of Textiles and as such are exempted from payment of tax. Learned Single Judge in the case of Moti Lal Dali Chand (supra) has considered the relevant notifications and the pleadings of the parties and after considering the material available on record as well as the decision taken by the State Government, by issuing a circular dated November 27th, 2003 with regard to taxability of 'NWF' and braided cords, arrived at a conclusion by holding the item exempted from payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Vs. Jaya Satya Marine Exports (P) Ltd. (2001) 9 SCC 765, wherein in para 7, Apex Court has held that in absence of evidence on record, judicial notice cannot be taken as to how a product is known in common parlance. Learned counsel for the revisionist has also placed reliance of a judgment of the Supreme Court in the case of Commissioner of Central Excise, New Delhi Vs. Kanaut Plaza Restaurant Pvt. Ltd, New Delhi. Particularly para 20, 33 and 36 are referred which are relevant and the same are reproduced herein below:- "20. Time and again, the principle of common parlance as the standard for interpreting terms in the taxing statutes, albeit subject to certain exceptions, where the statutory context runs to the contrary, has been reiterated. The application of the common parlance test is an extension of the general principle of interpretation of statutes for deciphering the mind of the law-maker; 33. Therefore, what flows from a reading of the aforementioned decisions is that in the absence of a statutory definition in precise terms; words, entries and items in taxing statutes must be constructed in terms of their commercial or trade understanding, or according to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .11.2005 has held that NWF is exempted from payment of tax. Per contra, learned Standing Counsel has placed reliance the contents of the assessment order and finding recorded by the assessing authority. The relevant extract of the assessment order is reproduced herein below. Learned Standing Counsel therefore has submitted that from the perusal of the assessment order, it is clear that goods namely 'NWF' manufactured by the revisionist is from Polypropeline Multi Filament (PPMF), which is commonly made of plastic and is Niwar therefore is liable to be taxed in view of the notification no. 1551 dated 26.05.1997 as well as notification no. 1376 dated 23.11.1998. According to the learned Standing Counsel under Section 14(iia) of the Central Sales Tax Act, the commodity is 'Cotton Fabrics' covered under the heading as mentioned under the heading of man made Fabrics but since no record is available either in the form of challan or in any other documentary prove that the excise duty has been deposited on man made fabrics or 'Cotton Fabrics'. He has further pointed out that the assessing authority has held that the commodity in question falls within the category ..... X X X X Extracts X X X X X X X X Extracts X X X X
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