IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 ST.Rev..No. 229 of 2007 ------------------------- TA.193/2006 of S.T.A.T.ADDL.BENCH-II,ERNAKULAM .................... PETITIONER/APPELLANT: --------------------------- JOSHY GOPAL, SREEVARDHAN, KOMMADY P.O., ALAPPUZHA. BY ADV. SRI.V.P.SUKUMAR SRI.JAIRAM.V.MENON RESPONDENT/REVENUE: -------------------------- STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER, SRI. V.K. SHAMSUDEEN THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 13/02/2009 ALONG WITH STRV : 241/07, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & K. SURENDRA MOHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - S.T.Rev. Nos. 229 & 241 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of February, 2009 JUDGMENT Ramachandran Nair,J. The question raised in these connected Tax Revision Cases filed by the assessee is whether cotton tape sold by the assessee to coir mat manufacturers is entitled to exemption under Entry 11 of the Third Schedule to the KGST Act. We have heard counsel appearing for the petitioner and Government Pleader for the respondent. 2. The Tribunal rejected the appeal for the reason that the item though made of cotton is not cotton fabric covered by Entry 11 of the Third Schedule to the KGST Act. Counsel for the petitioner contended that the definition of cotton fabric under Entry 11 of the Central Excise Tariff Act does not mention any width or length of the fabric but all what is required is that there should be the required percentage of cotton in the product and the item should be obtained through the process of weaving. We find force in this contention because, in this case also the tape sold is obtained by weaving and there is no dispute that it has the required percentage of cotton yarn. Government Pleader submitted that fabric generally has the meaning STRV : 229 & 241/07 -:2:- cloth and tape cannot be called cloth. However, we do not think Entry 11 as such has restricted meaning covering only cloth made of cotton. The requirement of the Entry will be satisfied, if the product is obtained by weaving and if it has the content of cotton prescribed there. However, we are unable to uphold the petitioner’s claim for exemption because items covered by Entry 11 are cotton items on which additional duty of excise is payable. There is no case that the petitioner has produced any proof with regard to clearance of the above items in terms on payment of excise duty and additional excise duty. Even though the counsel for the petitioner has relied on the decision of the Supreme Court reported in Delhi Cloth & General Mills Co. Ltd. v. State of Rajasthan and others [46 STC 256], we notice that the provision involved is not similar. However, it is clear from Entry 11 (iii) of the Third Schedule that, exclusion of PVC cloth, rexine and water proof cloth from the scope of exemption is merely because no additional duty is payable under Additional Duties of Excise (Goods of Special Importance) Act, 1957. This pre-supposes that the basic condition for exemption on cotton fabric covered by various entries of the Central Excise Tariff Act referred to under Entry 11 of Third Schedule to the KGST Act, is only because additional STRV : 229 & 241/07 -:3:- duty of excise is paid on the commodity. Petitioner has not adduced any evidence before any of the authorities below that the cotton tape sold by them which is used by the coir mat manufacturers by fixing it on the sides of mat are obtained through weaving and that additional duty of excise is paid for the commodity. In the circumstances, we find no ground to deviate from the finding of the Tribunal. However, at the request of the counsel for the assessee, we give an opportunity to the petitioner/assessee to produce Central Excise Gate Pass showing clearance of cotton tape sold by them as cotton fabric and with proof of payment of excise duty and additional excise duty, and if such documents are produced, the assessing officer will reconsider the assessee’s claim for exemption after verifying the documents produced and grant exemption if proved. Sales Tax Revision is disposed of as above. (C.N.RAMACHANDRAN NAIR) Judge. (K. SURENDRA MOHAN) Judge. ttb STRV : 229 & 241/07 -:4:- STRV : 229 & 241/07 -:5:-