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Madhya Pradesh High Court · body

1995 DIGILAW 824 (MP)

SUGANCHAND BASANTLAL SINGHANIA v. COMMISSIONER OF SALES TAX, M. P.

1995-11-01

A.K.MATHUR, S.C.PANDEY

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JUDGMENT A. K. MATHUR, Ac. C.J. - This is a reference made by the Board of Revenue under section 44(1) of the M.P. General Sales Tax Act, 1958 (for short, "the Act"), whereby the following two questions have been referred for decision of this Court : "1. Whether, the Board of Revenue was justified in treating 'niwar' as covered by cotton fabrics as defined in item No. 19 of the First Schedule to the Central Excises and Salt Act, 1944, and were thus liable for payment of entry tax at 1.5 per cent during the period from November 1, 1978 to October 20, 1979 ? 2. Whether, the Board of Revenue was justified in treating handloom daris as covered by cotton fabrics, as defined in item No. 19 of the First Schedule to the Central Excises and Salt Act, 1944 and were thus liable for payment of entry tax at 1.5 per cent during the period from November 1, 1978 to October 20, 1979 ?" 2. For convenient disposal of this reference, brief facts are that M/s. Suganchand Basantlal Singhania of Katni deals in cloth, umbrella, niwar, blankets, etc. In this case, the total purchase was determined at Rs. 2,15,400 and out of this, the tax paid goods relief was granted to the extent of Rs. 52,641. The appellant wanted exemption about niwar to the extent of Rs. 51,247.30, but it was held that niwar is not tax-free. Hence, it was taxable at the rate of 1.5 per cent. The appellant included the purchase of blankets in the purchase price taxable at 1.5 per cent as blankets are woollen goods and they were taxed at 2.5 per cent. The appellant filed first appeal against this assessment order and his contention was that levy of tax on niwar was improper. This contention was rejected. He stated that he purchased daris to the extent of Rs. 16,431 and this amount had been taxed at 2.5 per cent, whereas it should be taxed at 1.5 per cent. This plea was accepted and relief was granted. Appellant then filed second appeal before the Board of Revenue. Same was decided on May 30, 1983 and it was held that handloom dari and niwar is covered under entry 19 of the Central Excises and Salt Act, 1944. This plea was accepted and relief was granted. Appellant then filed second appeal before the Board of Revenue. Same was decided on May 30, 1983 and it was held that handloom dari and niwar is covered under entry 19 of the Central Excises and Salt Act, 1944. Hence the appeal was rejected and the assessee moved the Board of Revenue for making a reference to this Court. The Board of Revenue has framed the two questions referred to above for answer of this Court. 3. We have heard learned counsel for the parties and perused the record. Learned counsel has submitted that entry 19 appearing in the First Schedule appended to the Central Excises and Salt Act does not include niwar and dari and, therefore, they were not taxable. Learned counsel submitted that the entries include dhoties, sarees, chaddars, etc., but there is a specific omission of niwar and dari and, therefore, they are not taxable. Entry 19 reads as under : "19. Cotton fabrics. - 'Cotton fabrics' means all varieties of fabrics manufactured either wholly or partly from cotton and includes dhoties, sarees, chaddars, bed-sheets, bed-spreads, counterpanes, table clothes, embroidery in the piece, in strips or in motifs, fabrics impregnated, coated or laminated with preparations of cellulose derivatives or of other artificial plastic materials, and fabrics covered partially or fully with textile flocks or with preparations containing textile flocks, if (i) in such fabrics cotton predominates in weight, or (ii) such fabrics contain more than 40 per cent by weight of cotton and 50 per cent or more by weight of non-cellulosic fibres or yarn or both........." It is true that the words niwar and dari have not been mentioned specifically, but the entry is "cotton fabric" and the fabric has been defined in the New Webster's Dictionary and Thesaurus as follows : "Fabric--structure; framework; woven, knitted or felted cloth; texture." Niwar and dari both are prepared after weaving cotton fabrics. Therefore, simply because they have not been mentioned specifically by name, would not mean that both these items will not be covered by this entry. In fact, the items which have been mentioned in this entry are illustrative only and not exhaustive. Simply because certain items have been mentioned would not mean that the entry should be confined to those items only. These are all illustrative and not exhaustive. In fact, the items which have been mentioned in this entry are illustrative only and not exhaustive. Simply because certain items have been mentioned would not mean that the entry should be confined to those items only. These are all illustrative and not exhaustive. Therefore, the contention of the learned counsel that simply because niwar and dari have not been mentioned, that would not be exhaustive in itself. The items which have been mentioned are only illustrative. Therefore, it cannot be treated that the list is exhaustive. The definition of "cotton fabric" is too wide and it would mean that all varieties of items manufactured wholly or partly from cotton fabric would fall in this entry and all other illustrative items given cannot be treated as exhaustive. 4. Hence both these questions are answered in favour of the Revenue and against the assessee. Reference answered in the affirmative.