COMMISSIONER, TRADE TAX, U. P. , LUCKNOW v. MOTI LAL DALI CHAND PVT. LTD.
2007-01-10
RAJESH KUMAR
body2007
DigiLaw.ai
JUDGMENT Rajes Kumar, J. - These three revisions under section 11 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, "the Act") are directed against the order of the Tribunal dated April 16, 2004 relating to the assessment years 1999-2000 (Central), 2000-01 both under the U.P. Trade Tax Act, 1948 and the Central Sales Tax Act, 1956. In all the three revisions, following questions have been raised : "(i) Whether on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to allow the appeal filed by the dealer ? (ii) Whether on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to hold that narrow woven fabrics and braided cords fall under the category of textile and as such are exempt from payment of tax ? (iii) Whether on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to hold that braided cord and narrow woven fabrics fall under the category of 'tapes, niwar' ... ?" From the perusal of the order of the Tribunal it appears that the questions which arise from the order of the Tribunal are whether the Tribunal is justified in holding that braided cord and narrow woven fabrics are not covered under the entry "tapes, laces and niwar" and are liable to be exempted as cotton fabrics. Tribunal held that narrow woven fabrics and braided cord were not liable to tax being cotton fabrics and exempted under the notification of textile. Thus, the question involved is whether the Tribunal is justified in exempting the turnover of narrow woven fabrics and braided cord treating them as cotton fabric under the entry 53(a) of Notification No. ST-II-3714/X-6(1)/85-U.P. Act-15/48-Order-85, dated June 5, 1985. The assessing authority had levied the tax on narrow woven fabrics and braided cord under the entry "Tapes, niwar and laces including cord, string or line used for tying purposes or for drying clothes" under the Notification No. ST-II-7036/X-938 (2)-72-U.P. Act-15-48-Order-84, dated September 29, 1984. The claim of the dealer was that the narrow woven fabrics and braided cord were not used for tying purposes or for drying clothes but they were used in military garments.
The claim of the dealer was that the narrow woven fabrics and braided cord were not used for tying purposes or for drying clothes but they were used in military garments. In the case of Fibre Links, Kanpur v. CST reported in [1991] STD (Trib.) 125 the Trade Tax Tribunal, Kanpur held that narrow woven fabrics and braided cord are exempted from tax being fabrics. The revision filed against the said order has been dismissed by this court and the said order has become final. The Tribunal further held that the Government vide its G.O. No. K.N. - 2-4604/11-03-9(31)/03 dated November 25, 2003 has accepted the decision of the Tribunal finally. Additional Commissioner, Trade Tax (Legal) vide its letter dated November 27, 2003 informed the aforesaid decision of the Government to the Additional Commissioner, Kanpur. The Tribunal further held that in the case of dealer itself for the assessment years 1985-86, 1992-93 and 1998-99 the assessing authority exempted the turnover of narrow woven fabrics and braided cord and for the assessment years 1984-85 and 1987-88, the turnover of narrow woven fabrics and braided cord have been exempted from tax in appeal. Heard learned counsel for the parties. Learned Standing Counsel submitted that the order of the Tribunal is erroneous, inasmuch as the narrow woven fabrics and braided cord were liable to tax under the entry "Tapes, niwar and laces including cord, string or line used for tying purposes or for drying clothes". Learned counsel for the dealer relied upon the order of the Tribunal and submitted that the circular issued by the State Government is binding upon the Revenue authorities and they cannot be allowed to argue against the circular. Having regard to the facts and circumstances of the case, in my view the order of the Tribunal is liable to be upheld. So far as facts mentioned in the order of the Tribunal are concerned, learned Standing Counsel is not able to controvert the findings recorded by the Tribunal. The fact remains that in the case of Fibre Links, Kanpur v. CST [1991] STD (Trib.) 125, the Division Bench of the Tribunal held that the narrow woven fabrics and braided cord are exempted from tax being cotton fabrics. The revision against the order of the Tribunal has been dismissed by this court and the view of the Tribunal has been accepted by the State Government.
The revision against the order of the Tribunal has been dismissed by this court and the view of the Tribunal has been accepted by the State Government. Additional Commissioner, Trade Tax (Legal) in its circular dated November 27, 2003 has informed to the Additional Commissioner, Kanpur about the decision of the State Government with regard to the taxability of narrow woven fabrics and braided cord. The contents of the letter are reproduced herein below : MATTER IN OTHER LANGUAGE. In the aforesaid letter it has been categorically stated that the Government vide G.O. No. K.N. - 2-4604/11-03-9(31)/03 dated November 25, 2003 has informed that since the revision against the decision of the Tribunal has been rejected, the decision of the Tribunal become final and there is no liability of tax on the narrow woven fabrics and braided cord. It is settled principle of law that the opinion of the Government and the circulars are binding upon the Revenue authorities. In the case of Commissioner of Sales Tax, A.P. v. Indra Industries reported in [2001] 122 STC 100; [2000] UPTC 472, the apex court held as follows : "A circular by tax authorities is not binding on the courts. It is not binding on the assessee. However, the interpretation that is thereby placed by the taxing authority on the law is binding on that taxing authority. In other words, the taxing authority cannot be heard to advance an argument that is contrary to that interpretation." In the case of Simplex Castings Ltd. v. Commissioner of Customs, Visakhapatnam reported in [2003] 5 SCC 528, the apex court held that it is not open to the Customs Department to prefer appeal before CEGAT contrary to what was laid down in the circular. In the case of Paper Products Ltd. v. Commissioner of Central Excise reported in [1999] 7 SCC 84, the apex court held as follows : "This question is no more res integra in view of the various judgments of this court. This court in a catena of decision has held that the circulars issued under section 37B of the said Act are binding on the department and the department cannot be permitted to take a stand contrary to the instructions issued by the Board.
This court in a catena of decision has held that the circulars issued under section 37B of the said Act are binding on the department and the department cannot be permitted to take a stand contrary to the instructions issued by the Board. These judgments have also held that the position may be different with regard to an assessee who can contest the validity or legality of such instructions but so far as the department is concerned, such right is not available. [Collector of Central Excise, Patna v. Usha Martin Industries [1998] 111 STC 254 (SC); [1997] 7 SCC 47]. In the case of Ranadey Micronutrients v. Collector of Central Excise [1996] 10 SCC 387, this court held that the whole objective of such circulars is to adopt a uniform practice and to inform the trade as to how a particular product will be treated for the purposes of excise duty. The court also held that it does not lie in the mouth of the Revenue to repudiate a circular issued by the Board on the basis that it is inconsistent with a statutory provisions. Consistency and discipline are, according to this court, of far greater importance than the winning or losing of court proceedings. In the case of Collector of Central Excise, Bombay v. Jayant Dalal (Pvt.) Ltd. [1997] 10 SCC 402, this court has held that it is not open to the Revenue to advance an argument or even file an appeal against the correctness of the binding nature of the circulars issued by the Board. Similar is the view taken by this court in the case of Collector of Central Excise, Bombay v. Kores (India) Limited [1997] 10 SCC 338." Similar view has been taken by the apex court in a recent decision in the case of SACI Allied Products Ltd., U.P. v. Commissioner of Central Excise, Meerut reported in [2005] 5 RC 119; [2005] 7 SCC 159, Union of India v. Azadi Bachao Andolan reported in [2003] 263 ITR 706 (SC). In this view of the matter, the order of the Tribunal is upheld. In the result, all the three revisions fail and are accordingly, dismissed.