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TMI Blog1996 (9) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... duty for the time being leviable on the base yarn, if not already paid plus Rs. 20/- per kg. (iii) Other Textured yarn Rs. 105.00 per kg. Explanation - I. "Fibres and yarn, other than Textured yarn", shall be deemed to include - (i) man-made fibres; (ii) man-made metallic yarn; (iii) spun (discontinuous yarn containing not less than ninety per cent by weight of man-made fibres calculated on the total fibre content; and (iv) man-made filament (continuous) yarn that has not been processed to introduce crimps, coils, loops or curls along the length of the filaments, but does not include bulked yarn and stretch yarn. Explanation - II. "Textured Yarn" means yarn that has been processed to intro-duce crimps, coils, loops or curls alongthe length of the filaments and shallinclude bulked yarn and stretch yarn. Explanation - III. "Bass Yarn" means yarn falling under sub-item (i) of the this Item from which the Textured Yarn has been produced. Explanation - IV. - This item does not include mineral fibres and yarn." 3.It will be useful to note that from 1st March, 1977 a new item i.e. Item 68 was introduced to the first schedule to the Act which is to the following effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Item 68. The assessees paid such duty under protest. Thereafter, the application filed by the assessees for refund before the Assistant Collector failed. He passed an order to that effect on 28-5-1976. The appeal filed was rejected by Appellate Collector on 28-9-1976. Similarly the Central Government rejected the revision by order dated 31-10-1979. It is thereafter the assessees approached the High Court of Bombay for refund of the amount paid under protest. A Division Bench of the High Court heard and disposed of the petition by judgment and order dated 9-4-1980. Sujata Manohar, J. delivered the leading judgment and Masodkar, J., though for different reasoning, agreed with the conclusion of Sujata Manohar, J. 7.Sujata Manohar, J., after referring to the following materials - viz. - Encyclopaedia Britannica, Vol. X (abridged version), the Indian Standards Institution Standard bearing No. AIS 332 of 1967 wherein the expressions "Twine and Yarn" were dealt with, the Indian Standards Institution Standard bearing No. IS 1402-767 relating to "netting for fishing", the Manual called "Netting Materials for Fishing Gear" the manual published by the Food and Agriculture Organisation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject matter and the High Court had abundant material to substantiate the above proposition. 9.We do not think it is necessary, especially in this batch of cases, to refer in detail to the decisions cited by the Revenue or the text-books and the literature of the Indian Standards Institution and the Manual published by the Food and Agriculture Organization, United Nations, as to what is meant by "Twine", "yarn", "netting twine" etc. referred by the High Court. In this case, clinching evidence is afforded to demonstrate that trade and industry which deals with the goods, consider "Nylon Twine" as a kind of "Nylon Yarn". 10.There are innumerable decisions of this Court which have laid down the test or the principles to be borne in mind in construing the Items or Entries in Fiscal Statutes. In a recent decision in Indian Cable Company Ltd., Calcutta v. Collector of Central Excise, Calcutta and Others, [1994 (74) E.L.T. 22 (SC) = (1994) 6 SCC 610 - at page 615] a three-member Bench stated the law thus : "......... in construing the relevant item or entry, in fiscal statutes, if it is one of every day use, the authority concerned must normally, construe it, as to how it is unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he loss of revenue to the State. Failure to lay the requisite evidence cannot be made up by reference to authoritative publications unless the Excise authorities inform the assessees that they propose to rely upon the same before the adjudicating authority. ....................Technical evidence and authoritative publications must, therefore, be placed in the first instance before the adjudicating authority and the Tribunal. They have the requisite Technical expertise to evaluate the same." (Emphasis supplied) 12.The law on the point as laid down by this Court (in various deci- sions) has been summarised in the book "Principles of Statutory Interpretation" (Sixth Edition - 1996) by Justice G.P. Singh, at pages 67, 70, 72 and 73, thus : ".............. So in construing entries of goods in Excise, Customs of Sales Tax Acts resort should normally be had not to the scientific or technical meaning but to their popular meaning viz. the meaning attached to the expressions by those dealing in them. ............ The popular meaning in the context of a Sales Tax Act is that meaning which is popular in commercial circles for the Act essentially, in its working, is concerned with dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Maharashtra Rajya Machimar Sekhari Sangh Limited and another from a Partner of Maharashtra Fishing Material Company, wherein it is stated that "Twine" is a category of "Yarn". What is more - the assessees made available the above persons who have sworn to the affidavits for cross-examination at the time of the hearing of the applications, but the Revenue did not cross-examine them. The trade inquiry received by the assessees and also the affidavits conclusively point out that Nylon Twine is considered as a kind of "Nylon Yarn" in the particular trade by persons conversant with the subject-matter. The revenue has not let in any material to the contra. 15.In our view, the conclusion reached by the High Court is fully in accord with the decisions of this Court and the same is justified in law. The burden of proof is on the taxing authorities to show that the particular case or item in question, is taxable in the manner claimed by them. Mare assertion in that regard is of no avail. It has been held by this Court that there should be material to enter appropriate finding in that regard and the material may be either oral or documentary. It is for the taxing authority to lay evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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