KHATAISONS Vs. ADDL SALES TAX OFFICER

JUDGEMENT

(1.) PETITIONER is a dealer in woollen carpets, registered under the Kerala General Sales Tax Act, 1963 (the KGST Act ). Woollen fabrics as defined in item 21 of the First Schedule to the Central Excises and Salt Act, 1944 were exempt from payment of tax under section 9 read with item 7 of the Third Schedule to the KGST Act. PETITIONER's turnover of woollen carpets was thus exempted from payment of tax up to and inclusive of the assessment year 1982-83. But tax was levied at 4 per cent on the said turnover for the year 1983-84 as if woollen carpets were multi-point goods taxable under section 5 (1) (ii), and not exempted under section 9 read with item 7 mentioned earlier. A new item 100b was added to the First Schedule to the Act with effect from April 1, 1984, bringing "pile carpets" to tax at 15 per cent single point, at the point of first sale in the State, with the result, the petitioner was assessed to tax at 15 per cent in the year 1984-85 on their sale of carpets. PETITIONER's appeals against these assessments for the years 1983-84 and 1984-85 were not successful before the Appellate Assistant Commissioner, but the Appellate Tribunal in second appeal, set aside the assessment for the year 1983-84 in the view that woollen carpets continued to be within the purview of item 7 of the Third Schedule. Since the question whether the carpets dealt with by the petitioner contained 40 per cent or more of wool, to entitle them to the exemption, had not been decided, the matter was remitted back to the assessing authority for deciding that question. So far as the year 1984-85 was concerned, it was held that the insertion of item 100b in the First Schedule took carpets out of the general item "woollen fabrics" in the Third Schedule, and therefore, the petitioner was liable to pay tax at 15 per cent on the sale of carpets, from April 1, 1984. The appeal relating to the year 1984-85 was therefore dismissed. PETITIONER did not challenge this order exhibit P4, of the Tribunal in so far as it related to the year 1984-85 by filing any tax revision case in this Court under section 41 of the KGST Act though that is the normal remedy available to them in law. On the other hand, they filed this writ petition challenging the levy of tax on woollen carpets as uncostitutional. But I must confess, I could not find the trace of any constitutional question anywhere in this case, justifying an approach under article 226, instead of following the statutory remedy provided by section 41. I shall nevertheless deal with the matter on the merits of the Appellate Tribunal's order, on which again, I do not find anything substantial in the case.

(2.) THE ground raised is that, despite the introduction of item 100b in the First Schedule, carpets, continued to be exempt as, according to counsel, they were "woollen fabrics" within the purview of item 7 of the Third Schedule to the KGST Act. Item 7 not having been amended it should prevail over item 100b of the First Schedule. Item 7 of the Third Schedule, as it stood in 1984-85, made an exemption in respect of the tax payable on woollen fabrics as defined in item No. 21 of First Schedule to the Central Excises and Salt Act, 1944 ("the Central Act", for brevity ). THE First Schedule to the Central Act was amended with effect from April 1, 1979, by adding a new item No. 22-G relating to floor coverings, namely carpets, carpeting and rugs. Simultaneously Explanation III was added to item No. 21, excluding floor coverings failings falling under item No. 22-G from the purview of item No. 21. THErefore, with effect from April 1, 1979, carpets ceased to be covered by item No. 21 of the First Schedule to the Central Act, and fell squarely within item No. 22-G. Petitioner has no case that the carpets sold by them were not being levied to excise duty under item No. 22-G of the Central Act, during the year 1984-85. Item 7 of the KGST Act granted an exemption to woollen fabrics as defined in item No. 21 of the Central Act. This is a referential legislation which attracts the provisions of the Central Act for the purpose of assessment under the KGST Act. THE provisions of the Central Act are not actually incorporated into item 7, but they are brought in by reference so that the changes effected in the Central Act will have their impact and be reflected on the scope of item 7 of the Third Schedule to the KGST Act. THE scope of the exemption under this item will thus fluctuate, depending upon the scope of the item relating to woollen fabrics in the Central Act. This was the ratio of the decision of the Supreme Court in State of Kerala v. Attesee (Agro Industrial Trading Corporation) [1989] 72 STC 1 which confirmed the decision of this Court in Ateesee (Agro-Industrial Trading Corporation) v. State of Kerala [1978] 41 STC 1. THE Supreme Court stated that the KGST Act brought in the definitions in the Central Act by way of reference or citation and not by way of incorporation. This Court had stated in its decision that whether the words used in item 7 of the Third Schedule were words of reference, citation or incorporation the provisions of item 7 grew or shrank with the changes in the parent statute, namely, the Central Act. THErefore, the question of exemption under item 7 has to be adjudged with reference to the provisions of the Central Act as they stood at the relevant time, which so far as this case is concerned, is 1984-85. If during that period, carpets dealt with by the petitioner were not comprehended within item No. 21 of the First Schedule to the Central Act, petitioner cannot stake claim for any exemption for the same under the KGST Act. I have already pointed out that item No. 21 underwent a change in 1979 by which floor coverings were taken out of the purview of item No. 21 of the Central Act and brought under item No. 22-G. Explanation III to item No. 21 is specific that this item does not include floor coverings falling under item No. 22-G. This definition of "woollen fabrics" is automatically attracted to the provisions of item 7 of the Third Schedule to the KGST Act and therefore for the purpose of that item, floor coverings cannot be treated as woollen fabrics exempted from tax. THE Appellate Tribunal was therefore justified in holding that the carpets dealt with by the petitioner were not exempt in the year 1984-85.

(3.) THE next point raised was based on section 14 of the Central Sales Tax Act, 1956. Section 15 of the Act imposes certain restrictions on the levy of tax. It was stated that woolen fabrics being declared goods the levy of tax at 15 per cent by item 100b is violative of section 14 of the Central Sales Tax Act. Here again, section 14 describes woollen fabrics as defined in item No. 21 of the First Schedule to the Central Act and therefore the amendments to the Central Act automatically restrict the applicability of section 14 of the Central Sales Tax Act, 1956. THErefore, when woollen carpets went out of item 21 in the Central Act by the Amendment Act of 1979, automatically, section 14 ceased to apply to carpets and the restrictions imposed by section 15 no longer operated in relation to woollen carpets.