APPELLATE JURISDICTION Writ Petition No 49 of 1973
Under Article 32 of the Constitution and Civil Appeals Nos 43 and 44 of 1973 Appeals by Special Leave from the Judgment and order dated the 27th October 1972 of the Rajasthan High Court in D B
Civil Writ Petition Nos 39872 and 1 88571 respectively
A K Sen B Sen and H K Puri for the Appellants
section T Desai section M lain and section K Jain for the Respondents
J We have before us a petition under Article 32 of the Constitution and two appeals by Special leave from the judgment of the High Court of Rajasthan between the same parties
The three cases before us raise the same question of law
It is Do the goods called Rayon tyre Cord Fabric sold by the Delhi Cloth  General Mills Co Ltd to manufacturers of tyres who use it for the purpose of impregnating it with rubber fall under entry 18 of the Schedule of the Rajasthan Sales Tax Act 1954 hereinafter referred to as the Act    The schedule mentioned above gives a list of goods on the sale or purchase of which no tax is payable under the Act The relevant entry 18 which was omitted in 1973 reads as follows 18
All cotton fabrics rayon or artificial silk fabrics woollen fabrics sugar and tobacco as defined in the Additional Duties cf Excise Goods of Special Importance Act 1957 Central Act 58 of 1957
Section 2C of the Additional Duties of Excise Goods of Special Importance Act 1957 lays down 2 C the words and expressions sugar  tobacco  cotton fabrics  silk fabrics  woollen fabrics  and rayon or artificial silk fabrics shall have the meanings respectively assigned to them in Items Nos 1 4 19 20 21 and 22 of the First Schedule to the Central Excise and Salt Act 1944
The Writ Petition of the Delhi Cloth and General Mills Co Ltd states that rayon tyre cord fabric is manufactured out of rayon yarn and cord
It goes on to explain that this fabric is a textile consisting of rayon threads in the warp and cotton threads in the weft and is manufactured on weaving looms in the same manner as in other ordinary textile
It is also stated there The fabric consists of more than 60 by weight of rayon and is unprocessed
The weft threads are not used merely for tying the warp threads together for the purpose of convenient transport or storage but form an integral part of the whole fabric
500 The petitioners state that the manufacturers of tyres to whom the fabric is supplied impregnate the fabric with rubber and weave it into a fabric in the same way as is being done by the first petitioner
Thus the petitioners allege that they manufacture a textile and also that it serves as part of raw material for what ultimately also goes into the manufacture of a fabric
After indicating the manner in which and the substance out of which rayon tyre cord fabric is made and its composition the petition sets out item 22 of the first schedule of the Central Excises and Salt Act 1941 as the applicable entry covering the goods manufactured by the petitioner
This item reads as follows Rayon or artificial silk fabrics means all varieties of fabrics manufactured either wholly or partly from rayon or artificial silk and includes embroidery in the piece in strips or in the motifs and fabrics impregnated or derivatives or of other artificial plastic materials but does not included any such fabrics i If it contains 40 or more by weight of wool
ii lf it contains 40 or more by weight of silk
iiiIf it contains cotton and less than 60 by weight of rayon or artificial silk or iv If it contains no cotton and less than 40 by weight of wool and less than 40 by weight of rayon or artificial silk
The petitioners assert that from years 1966 to 1969 the respondent Commercial Tax officer was not subjecting the goods of this description to sales tax and accepted the case of the petitioners that they were exempt from taxation
The reasoning of the Commercial Tax Officer in exempting these goods is also mentioned
It is then stated that as some questions were put in the Rajasthan State Legislative Assembly on or about 20th April 1971 asking for the reason why this particular type of goods of the petitioners were exempted from Sales tax the Commissioner of Commercial Tax issued a letter to the Commercial Tax Officer to levy Sales tax on the rayon cord fabric manufactured by the petitioner
Thereafter notices under the proviso to section 121 of the Act were issued for the years 1965 to 1969 with a view to reopening the assessments on the ground that the sales of these goods had wrongly escaped assessment
but these were dropped due to some preliminary 501 objections
Fresh notices were then issued and proceedings for subsequent assessment years were also taken
By orders passed on various dates the Commercial Tax officer rejected the petitioners  objections to Sales tax on rayon tyre cord fabric
The petitioners have however come up to this Court directly against the order and provisional assessment dated 21 st November 1 972
It also appears from the writ petition that proceedings fol the assessment year 1972 73 arc still pending before the Commercial Tax officer
Civil Appeals Nos
43 of 1973 and 44 of 1973 by special leave are directed against a common judgment of a Division Bench of the High Court of Rajasthan given on 27101972 dismissal the appellants  Writ Petitions against the assessment order dated 26th March 1971 for the years 1968 69 and 1969 70 made by the Commercial Tax officer
The view of the Commercial Tax Officer questioned by the petitioners was that the goods now sought to be taxed are not the end product
The High Court did not go into the merits of the case
It accepted the preliminary objection of the State of Rajasthan that the petitioner should first resort to alternative remedies provided Under the Act so that the appellate authority under Section 13 of the Act may go into the whole evidence and decide disputed questions of fact
There is also provision for revision by the Board of Revenue under Section 14 when moved by the assessing authority
The High Court did not find any error apparent upon the face of the record The taxing authorities have the
jurisdiction to decide the question before them either rightly or wrongly
In any case its view was that until the statutory remedies had not been exhausted leaving some error apparent on the face of the record still to be rectified by the High Court a case for interference under Article 226 of the Constitution will not arise
It is urged on behalf of the Delhi Cloth Mills that no disputed question of fact arises
It is submitted that on admitted facts it could be decided whether the tyre cord fabric is an exempted fabric or not
We think that this view over looks several matters indicated below including the admission on behalf of the Delhi Cloth Mills that in the case before us the tyre cord fabric manufactured by it is woven by its purchasers into a fabric in the same way as is being done by the first petitioner
This certainly means that the tyre cord fabric serves as raw material for another fabric which ultimately emerges by subjecting the goods manufactured by Delhi Cloth Mills to a process of impregnating with rubber
502 A sample of the tyre cord fabric was actually produced before us
It is said that the fabric is manufactured in the same way as cloth is woven on looms
It consists of cords which could be said to constitute warps running length wise and wefts running breadth wise
But the spaces left between them are so wide presumably for purposes of impregnation with rubber that it may not pass for an ordinary fabric 
Like one of those mentioned in entry 19 of the first schedule to the  such as tussors corduroy gaberdine denim 
Indeed if the lyre cord fabric is so well established a category of rayon fabric it could have found mention specifically in item 22 in the same way as the numerous varieties of cotton fabrics are mentioned in item 19
In answer to this argument it could be urged that for some reason entry No 22 does not enumerate rayon and silk fabrics in the same fashion as the cotton fabrics are specified by name in item 19
It is certainly a question which appertains to the knowledge of technical aspects of textile weaving and production to determine at what stage threads or cords forming warps and wefts really amount to a fabric
It is true that the term fabric has a wide meaning
Its first meaning given in the Oxford English Dictionary is A product of skilled workmanship
The first example of such a product is An edifice a building
The fourth example of the first meaning is I a manufactured material now only a textile fabric  a woven stuff
We think that we are necessarily concerned here only with textiles as fabrics
This is clear from entries 19 to 22D of the first Schedule of the 
Entry 22AA is textile fabrics not elsewhere specified
This residuary entry and the descriptions in preceding entries seem to us to make it abundantly clear that we are dealing here only with textile fabrics
The case of the Delhi Cloth Mills also is that the product is a textile
There fore the essential question to determine is the stage at which the goods under consideration become a textile fabric
The meaning of the term textile given in the Oxford Dictionary is A woven fabric any kind of cloth
It must acquire a body and a texture
Presumably it is not just the skeleton of a textile
Apparently it is more than that
But against pushing this point of view too far it may be urged that in the technical and commercial parlance we are dealing with a fabric
It is therefore difficult to find fault with the view of the High Court that there is no error apparent on the face of the record and 503 that the taxing authorities should be left to determine whether the tyre cord fabric is more correctly capable of being described as a fabric or as merely cord pretending to pass off as ar textile fabric This is really a technical question
In any case it is a question on which two views seem possible on apparent facts
And neither of the two views can be rejected outright as untenable
It requires careful consideration of the technical processes of manufacturing of the composition of the tyre cord fabric  and an evaluation of opinion of experts on the subject to be able to decide the question satisfactorily rt may also require some examination of commercial usage and terminology or the language of the market in goods of this type
We therefore think that the High Court was right in not interfering with the decisions of the taxing authorities at this stage
We also think that for the same reason we could not interfere under Article 32 with the decision of the Commercial Tax officer
Indeed no fundamental right is shown to be affected by a mere determination of the question indicated above
There is no absence of jurisdiction of the taxing authorities who had the power to decide the question either rightly or wrongly
It has been urged on behalf of the Delhi Cloth Mills that the High Court should have interfered as the question whether the tyre cord fabric is the end product or not in the final manufacture of an other fabric was quite irrelevant
It was submitted that so far as the Delhi Cloth Mills is concerned the goods under consideration constitute the end product which they sell in the market
The example given was that of cloth which is the end product for the mills which manufacture cloth but it becomes the raw material for tailors and for those who make ready made clothes to sell them
This argument overlooks that it is not so much the point of manufacture at which the Mills sell their own product which determines the nature of goods which are entitled to exemption but it is the stage reached by this product in the process of manufacture of fabrication of a textile which should decide the question
As we have already indicated the context in which the entry occurs shows that it is meant for textile fabrics and not for any kind of fabric
Therefore even if the tyre cord fabric may be the end product for the Delhi Cloth Mills the crucial question is Does this product constitute a fabric which is a textile A textile fabric does not cover everything which could be made into a fabric
Mere cord does not become a textile fabric just because it requires some skill to make it
The rather wide dictionary meanings of the term fabric do not appear to us to give the exact meaning of the term fabric as 504 used in the relevant entries entitled to exemption
In the entries it evidently means a fabric which is also a textile
The question therefore to be determined by the Tax authorities themselves is whether the product for which the Delhi Cloth Mill claims exemption Is a textile fabric and not any other kind of fabric
Having indicated the nature of the enquiry which must by undertaken by the taxing authorities we find that there is no sufficient reason for overriding and discarding the High Court s view that on what appeared to the High Court to be a question Of fact it should not decide whether the product under consideration constitutes a fabric entitled to exemption
There was no appeal by the State of Rajasthan
It does not therefore seem propel
for us to finally decide on merits the question argued before us in the appeals by the Delhi Cloth Mills which are before us unless we could have decided the matter in favour of the appellant
We could have only done that if we were of opinion that the taxing authorities had committed error apparent on the face of the record
But as already indicated above we are not of this opinion
For all the reasons given above we think that the Writ Petition as well as the appeals by special leave are liable to be dismissed and we hereby dismiss them with one set of costs
P B R Appeal dismissed


Summary:
Rayon tyre cord fabric which is a textile consisting of rayon threads in the warp and cotton threads in the weft is manufactured on weaving looms in the same manner as any other ordinary textile
The tyre manufacturers to whom the product is supplied
impregnate the fabric with rubber and weave it into fabric
Under Entry 18 of Schedule of the Rajasthan Sales Tax Act 1954 rayon fabrics were exempt from sales tax
When the Commercial Tax officer rejected the petitioners  objections to sales tax being levied on rayon tyre cord fabric the e petitioners filed a petition under Article 32 of the Constitution alleging breach of Fundamental Rights
In respect of certain earlier assessment years however the view of the Commercial Tax officer was that the goods were not the end product
when the matter was taken to the High Court it held that until the statutory remedies had been exhausted no case for interference under article 226 arose
It did not find any error apparent on the face of the record
Hence the appeals by special leave
E In the write petition as well as in the appeals it was contented that the goods constituted the end product which the petitioners sell in the market and therefore were exempt from sales tax
Dismissing the petition and appeals
 HELD 1a It is difficult to find fault with the view of the High Court there was no error apparent on the face of the record and that the taxing authorities should be left tb determine whether the tyre cord fabric is more correctly capable of being described as a fabric or as merely cord passing of as a textile fabric
This is really a technical question
In any case
it is a question on which two views may be possible
503C b The fact that the tyre cord fabric manufactured by the petitioners is woven by its purchases into a fabric in the same way as is being done by the petitioners means that the tyre cord fabric serves also as raw material for another fabric which ultimately emerges by subjecting the goods to a process of impregnating it with rubber
The essential question to determine is the stage at which the goods under consideration became textile fabrics if they do become that at all
502C 503A 2 This Court cannot interfere under article 32 with the decision of the Commercial Tax Officer because no Fundamental Right is shown to be affected by the mere determination of the question
There was no absence of jurisdiction of the taxing authorities who had the power to decide the question either rightly or wrongly
503E 34 833 SUP CI76 498 ARGUMENTS For the petitioners Respondent No 1 did not produce or get any evidence from the commercial community dealing with rayon tyre yarn and cord and rayon tyre fabric for the purpose of controverting the conclusive evidence produced by the petitioners to the effect that in the commercial community dealing with the said goods these goods were different both from the point of view of manufacture and also from the point of view of ultimate end product and are considered to be different by the commercial community which heats rayon tyre cord fabric as fabric
There was no evidence on the contrary to come to the conclusion that the rayon tyre fabric was not fabric
The High Court wrongly relied on 25 STC 407 which had no application in the present case ignoring the decision in 22 STC 470 and 28 STC 431
It was therefore not a case of disputed question of fact but a case of admitted fact by the commercial community against which there was no evidence before the respondent
The alternative remedy of appeal is not at all efficacious in the facts and circumstances of the present case inasmuch as the Commissioner and the State Government having already made up their mind to levy tax no relief could be expected by the appellants from him and the High Court should have interfered under articles 226 and 227
Further ill this case there was no question of disputed facts
The sample was admitted
There was uncontradicted evidence that the product of the petitioners is known as rayon cord fabric by the commercial community and by common parlance
The case is a misdirection of law on the part of the assessing authority
For the respondents There was no error of law apparent on the face of the record as contended by the petitioners
The High Court rightly rejected the writ petitions on the ground that there were disputed facts and there are alternative remedies and full and adequate machinery under the Act itself
The assessee mills when paying excise duty paid it only as on yarn under entry 18 of the First Schedule to the Central Excise and Salt Act
The mills did not pay additional duty under the Additional Duties of Excise Goods of Special Importance Act 1956 on the ground that the material was not fabric
When it suited the mills the material wag said to be yarn and in case of sales tax it contended that it was fabric
This fact itself was a strong indication that this was a disputed question of fact