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1972 Supreme(Raj) 172
Rajasthan High Court
Beri (Ag.) C.J. & Joshi, J.
Delhi Cloth & General Mills Co. Ltd. - Appellant
Versus
R.R. Gupta, Commercial Tax Officer, Jaipur - Respondents
D.B. Civil Writ Petition No. 1885 of 1971
Decided On : October 27, 1972
A.K. Sen with S. K. Jindal, for Petitioner; S.T. Desai with M. L. Shrimal, for Respondents
Headnote:Constitution of India, Art. 226 - Question of fact—Question whether article produced before Court falls under Sales Tax Act or not is a question of fact and cannot be decided under discretionary powers of the Court.
The question before us succinctly stated is whether the material shown to us at the tune of the arguments is a fabric. We mights observe that in the samples shown to us by both the parties rayon cords are suspended from a tab as warp and they ark woven by weft of thin cotton thread liberally spaced but at regular intervals. The thin cotton weft seems to be literally the thin dividing line on which the decision is likely to rest whether it is a cord or fabric. The problem is whether this is a question of disputed fact. This in bur opinion is not a question of mere interpretation of the term fabric but whether it applies to the commodity in question. After all the exercise of jurisdiction under Art. 226 of the Constitution in a case of this kind is essentially a question of discretion dependent on the totality of circumstances of the case. The decided cases merely provide guide lines. Regarding the case in hand we are inclined to be of opinion that it is a disputed question of fact dependent on evidence and in view of the authorities we have noticed earlier we should not decide it in the exercise of our extraordinary jurisdiction. (Para 12)
2. The petitioners case is that this commodity is a textitle consisting of rayon threads in the warp and cotton threads in the weft and is manufactured on weaving looms like any other textile. It is supplied to the manufacturers of tyres who use the material for the purposes of impregnating it with rubber. Entry 18 of the Schedule to the Rajasthan Sales Tax Act, 1954 (hereinafter called "the Sales Tax Act") exempts from the sales tax and purchase tax cotton fabrics, rayon or artificial silk fabric, woolen fabric as defined in the Additional Duties of Excise (Goods of Special Importance) Act, 1957. The Additional Duties of Excise Act, 1957 in turn borrows the definition of rayon or artificial silk fabrics etc. from Item No. 22 of the First Schedule to the Central Excise and Salt Act, 1944. Sales were made by the petitioner of the rayon tyre cord fabric and they claim that this article was exempt from sales tax and in point of fact for the years 1965-66, 1966-67, 1967-68 and 1968-69 the petitioner was not charged any sales tax on the said commodity. It is emphasised that the orders relating to the year 1967-68 and 1968-69 were passed after evidence was led and the questions keenly debated. It was in April, 1971 that a question was raised in the Legislative Assembly of Rajasthan that the exemption from Sales Tax of the sales of the petitioners rayon tyre cord fabrics was erroneously granted and a debate followed and in the course of it the Minister declared to bring the sales of the petitioners commodity in question to tax. The Commissioner of Commercial Taxes issued a letter (Annexure A to the petition) to the respondent No. 1 to levy Sales tax at 10 per cent. On the 10th of May, 1971 the Dy. Commissioner (Administration), Commercial Taxes, Jaipur, issued four notices under the proviso to sec. 12(1) of the Sales Tax Act for taxing the sales of the petitioners commodity in question. The proceedings were dropped on the 21st of June, 1971 in view of the petitioners preliminary objection and thereafter the respondent No. 1 issued 4 notices, all dated 31st July, 1971 under sec. 12 of the Sales Tax Act for the years 1965-66 to 1968-69 with a view to taxing the sales of the commodity in question. By his order dated 15-10-1971 the respondent No. 1 assessed the petitioner under the Central Sales Tax Act on the sales of the commodity in question rejecting the petitioners contention that the said commodity was exempt from sales tax because it was covered by entry 13 to the Schedule of exempted goods under the Sales Tax Act. The said assessment order has been impugned in writ petition No. 1885/71.
3. On the 25th January, 1972 the respondent No. 1 made the assessment on the aforesaid commodity for the year 1970-71 and imposed sales tax on sales at the rate of 10 per cent and demanded a sum of Rs. 9,45,010.16 P. This assessment order is challenged in writ petition No. 398/72.
4. As both the writ petitions are of the same petitioner and raise an identical point it will be convenient to dispose them together. The grounds of attack are that the rayon tyre cord fabrics in technical as well as commercial parlance is a fabric which is exempt under Item 18 in the Schedule to the Sales Tax Act; that the said tax has been assessed by the taxing authorities in view of the declaration made by the Government on the floor of the Legislative Assembly and the petitioner is being asked at this late stage to produce C Form Certificates as the transactions of sale were interstatal. The petitioner has relied on a number of documents and books to show that the commodity in question is a fabric covered by Item 18 in the Schedule to the Sales Tax Act.
5. The prayer in writ petition No. 1885/71 is for a grant of writ in the nature of certiorari or other appropriate writ, direction or order under Arts.
