The South India Hosiery Manufacturers Association vs Textiles Committee, South Zone and Others

P. Sathasivam, J.—The South India Hosiery Manufacturers Association has filed the above writ petition to issue a Writ of Mandamus

forbearing the respondents from subjecting the members of the petitioner Association to the liability of payment of Cess under the provisions of

Section 5-A of the Textiles Committee Act, 1963, read with Rules 4 to 8 of the Textiles Committee (Cess) Rules, 1975.

It is seen that the members of the petitioner Association are the manufacturers of textiles (garments) and they have registered as members in the

Association. The Textiles Committee Act and Cess Rules, 1975 have been notified in the Official Gazette of India and it is obligatory on the part of

each and every manufacturer of textiles to file monthly returns under Rule 4 of the Textiles Committee (Cess) Rules. 1975. The levy of Cess is

meant to be a one stage ad-valorem levy, payable at any stage or when the final clearance takes place from the mills. According to the petitioner,

the quantities used by the manufacturers of fabric or cloth or yarn or garment or any other article for the manufacture of any other commodity is not

subject to payment of Cess. It is their case that yarn consumed for manufacture of garments by the same mill is not subject to payment of Cess. In

case of composite mills where all articles, viz., yarn, fabrics, garments are manufactured, Cess is applicable only at the last stage. Since double

stage levy has been expressly exempted and the Textile Committee Cess has already been paid on yarn by the hosiery units at the time of taking

delivery of yarn from the spinning mills, the question of Cess being paid at subsequent stages does not arise. It is also their case that the members

of the petitioner Association are manufacturing hosiery articles on small scale basis, filling under the category of unorganised sector. According to

the petitioner, the members of the petitioner Association are not subjected to the application of Textiles Committee Act and are not liable for

payment of Duty of Excise levied u/s 5-A of the Act.

In the counter-affidavit filed by the respondents, it is stated that the garments/ hosiery manufacturers are liable to submit returns and pay cess as

per the definition of textiles as defined u/s 2(g) of the Textiles Committee Act. After notification in the official Gazette, it is obligatory on the part of

each and every manufacturer of textiles to file monthly return under Rule 4 of the Textiles Committee (Cess) Rules, 1975. The Federation of

Hosiery manufacturers were addressed to instruct their members to file returns and pay cess besides sending circular to each and every

manufacturer. Apart from this, advertisements have been made in the leading newspapers inviting the attention of the manufacturers of

garments/hosiery enlightening the provisions of the Act and Cess Rules and their liability thereon to submit returns and pay the cess. Having failed

to submit returns and pay cess, the committee had no other way but to assess the cess under Rule 8 of the Cess Rules, 1975. The hosiery

manufacturers are the manufacturers of textiles (garments) within the definition of Section 2(g) of the said Act and they failed to submit the returns

as per Rule 4 of the Rules. 1975, in spite of attempts made to get the returns and payment of cess by issuing the circulars and notification in

newspapers etc. The department have obtained sales figures from the Sales Tax Office and issued provisional demand notices under Rule 8 of the

Textiles Committee (Cess) Rules, 1975. Since the parties are not covered by the Central Excise and they are not submitting returns to their office,

the department have obtained the sales figures from the Sales Tax Office. The petitioners have not complied with the condition imposed by this

Court when granting interim order. There is no merit in the writ petition.

I have heard the learned senior counsel for the petitioner as well as respondents.

Mr. K. Doraisami, learned senior counsel for the petitioner Association, after taking me through the relevant provisions from the Textiles

Committee Act and the Cess Rules, has raised the following contentions :--

(i) The Cess having been not collected from 1975 to 1992 and the members of the petitioner Association are exempted from payment of Central

Excise, the data collected from the Commercial Tax Office is not sustainable;

(ii) The demand is illegal and without jurisdiction;

(iii) The present demand of the respondents is barred by limitation in view of Rule 10.

On the other hand, Mr. P. Subba Reddy, learned counsel for the respondents has raised the following contentions :--

(i) As the petitioners are not questioning the levy of Cess as provided in Section 5-A of the Textiles Committee Act and Rule 4 of the Textiles

Committee (Cess) Rules, the present writ petition is not maintainable;

(ii) Since there is a provision for issuing notice and affording opportunity of being heard, the petitioners cannot have any grievance;

(iii) Rule 10 is in respect of recovery of Cess short levied/erroneously levied and the contrary contention raised by the petitioner Association is

liable to be rejected;

(iv) Considering the Statement of Objects and Reasons and in the interest of Textile industry in general, levy of Cess is quite reasonable and

acceptable.

I have carefully considered the rival submissions.

Before considering the rival contentions, it is useful to refer the relevant provisions of The Textiles Committee Act, 1963 (Act No. 41 of 1963)

(hereinafter referred to an ""the Act"") and the Amendment Act 51 of 1973 as well as The Textile Committee (Cess) Rules, 1975 (hereinafter

referred to as ""the Rules""). The Act is enacted by the Central Government. The Statement of Objects and Reasons are as follows :--

The Cotton Textiles Fund Ordinance, 1944, provides for the establishment of a cotton textile fund and the Constitution of a Committee to

administer the Fund. The fund was originally created from the proceeds of the levy of a duty of customs at 3 per cent on the ex-mill prices of cloth

and yarn exported and later on the Central Government used to make contributions to the Fund, The Cotton Textile Fund Committee has been

doing useful work and the inspection Scheme of the Committee has found increasing popularity and authenticity in trade circles, both in India and

abroad.

In recent years, however, conditions in the Textiles industry have changed. Indian cloth is facing every increasing competition in the international

markets from other exporting countries like Japan, China etc. The Mill owner''s Association and the manufacturers of textile machinery in India

have been stressing necessity of an independent Inspectorate for indigenous textile machinery. In order to meet their needs, the Tariff Commission

recommended in 1960 that adequate arrangements should be made for impartial investigation of all complaints from the consuming industries about

the quality of indigenous products and for keeping a continuous watch over the progress of the Textile machinery as a whole. Under the existing

Ordinance, the powers of the Committee have not been clearly defined and they are also restricted in scope.

It is therefore considered necessary that in the interest of textile industry the Committee should be reconstituted and its functions should be

enlarged. It is accordingly proposed to establish a Committee which shall be a body corporate and it should be vested with enlarged statutory

powers. Under the existing Ordinance, the functions of the Committee were restricted to cloth and yarn only. It is proposed to empower the

Committee to ensure the quality of all textiles whether made wholly or partly of cotton wool, silk, artificial fibre or silk. It is further considered that

the work of inspection of indigenous textile machinery and stores should also be entrusted to the Committee. The functions of the Committee

should generally be to ensure standard qualities of textile for internal marketing and export purpose and the manufacture and use of standard type

of textile machinery.

xx xx x

Amending Act 51 of 1973, -- The Textile Committee has been set up under the Textiles Committee Act, 1963 for securing standard qualities of

textiles for internal as well as external marketing and manufacture and use of standard type of textile machinery. The Committee has so far

concentrated its attention and efforts on ensuring standard qualities of textiles for export by undertaking per shipment inspection. Since December,

1966, export of Cotton textiles has been banned without pre-shipment inspection certificate of the committee. Even in respect of wollen and art-

silk textiles such inspection is undertaken by the committee to enable the exporters to claim replenishment entitlements under the Registered

Exporter''s policy. For all these services, the Committee is authorised u/s 12 of the Act to levy such fees as may be prescribed by rules for the

inspection and examination of textiles and textile machinery and for any other service which the committee may render to the manufacturers of

textiles and textile machinery.

The various activities undertaken by the Textiles Committee for the development of the textile industry and the promotion of textile exports have

been expanded considerably and it has been found necessary that the finances of the Textiles Committee are put on a sound footing. Moreover, if

the textile industry is to develop on sound and proper lines and production and export of textiles are to be substantially increased, the expenditure

of the Textiles Committee has necessarily to be on larger scale than a present in order to be commensurate with the desired results. It has,

therefore, become necessary to take steps or augment the resources of the Textiles Committee. Accordingly, it is proposed to provide for the levy

of a cess as a duty of excise on all textiles (other than those manufactured by handloom and powerloom industries) and textile machinery at such

rate not exceeding one per cent ad valorem, as the Central Government may fix from time to time. It is also proposed to retain in the Act the

provision for the levy of fees for inspection and examination of Textiles on which no duty of excise is leviable and for certain special services

rendered by the Committee"".

With the above back ground, let us consider the relevant provisions and the rival contentions. The expression ""prescribed"" and ""textiles"" are

defined in Section 2 of the Act as follows :-

(e) ""prescribed"" means prescribed by rules made under this Act;

(g) ""textiles"" means any fabric or cloth or yarn or garment or any article made wholly or in part of --

(i) Cotton; or

(ii) Wool; or

(iii) Silk; or

(iv) artificial silk or other fibre,

and includes fibre:

Section 5-A deals with imposition of cess as under :-

Section 5-A. Imposition of cess on textiles and textile machinery manufactured in India. There shall be levied and collected as a cess for the

purposes of this Act a duty of excise on all textiles and on all textile machinery manufactured in India at such rate, not exceeding one per cent, ad

valorem as the Central Government may, by notification in the Official Gazette, fix :

Provided that no such cess shall be levied on textiles manufactured from out of handloom or powerloom industry.

(2) The duty or excise levied under Sub-section (1) shall be in addition to any cess or duty leviable on textiles or textile machinery under any other

law for the time being in force.

(3) The duty of excise levied under Sub-section (1) shall be collected by the Committee, in accordance with the rules made in this behalf, from

every manufacturer of textiles or textile machinery (hereinafter in this section and in Section 5C and 5D referred to as the manufacturer).

(4) The manufacturer shall pay to the Committee the amount of the duty of excise levied under Sub-section (1) within one month from the date on

which he receives a notice of demand therefore from the Committee.

(5) For the purpose of enabling the Committee to assess the amount of the duty of excise levied under Sub-section (1), --

(a) the committee shall, by notification in the Gazette of India, fix the period in respect of which assessments shall be made; and

(b) every manufacturer shall furnish to the Committee a return, not later than fifteen days after the expiry of the period to which the return relates,

specifying the total quantity of textiles or textile machinery manufactured by him during the said period and such other particulars as may be

prescribed.

Section 22(1) empowers the Central Government to make Rules. Clause (da) of Sub-section (2) of Section 22 enables the Central Government to

see such Rules provide for the manner in which the duty of excise leviable u/s 5-A may be assessed, paid or collected, and the manner in which

any refund of such duty paid or collected in excess of the amount due may be made. Based on the power conferred on the Central Government,

under Sub-section (1) of Section 22 of the Act, the Government of India made the Textile Committee (Cess) Rules, 1975. As per Rule 4 (1),

every manufacturer has to furnish to the committee in duplicate, a return in Form A or in Form B for each month duly signed by him or any other

person authorised by him in this behalf so as to reach the Committee not later than 15 days after the expiry of the month to which the return relates,

along with a certified copy of the returns submitted to the Central Excise authorities under Rule 54 of the Central Excise Rules, 1944 for the

relevant month. Rule 6 enables the Assessing Officer to assess the amount of the cess payable by each manufacturer for each quarters on the

basis'' of the data furnished in monthly returns referred to in Rule 4. After assessment under Rule 6, the Committee shall issue notice of demand

under Sub-rule (1) of Rule 7. When return is not furnished or furnished incorrectly, as detailed in Rule 8, the Assessing Officer may, after giving the

manufacturer an opportunity of being heard, assess the amount of cess on the basis of figures obtained from the Central Excise Department or on

the basis of the average of the cess levied during the previous two quarters immediately preceding the quarters for which assessment is being made.

Rule 10 refers to recovery of cess short levied or erroneously levied.

The Statement of Objects and Reasons referred to above clearly show the intention of the Central Government in bringing the legislation. The

main object of the Textiles Committee which has been set up under the Textiles Committee Act, 1963 for securing standard qualities of textiles for

internal as well as external marketing and manufacture and use of standard type of textile machinery. The committee is also concentrating its

attention and efforts on ensuring standard qualities of textiles for export by undertaking pre shipment inspection. For all these services, the

committee is authorised u/s 12 of the Act, to levy such fees as may be prescribed by Rule for inspection and examination of textiles and textile

machinery and for any other services which the committee may render to the manufacturers of textiles and textile machinery. As rightly argued by

the learned counsel for the respondents, the petitioners are not questioning the charging section, namely, Section 5-A or any other provisions.

However, by way of Mandamus, the Association is questioning the action of the respondents from subjecting their members to the liability of

payment of cess u/s 5-A of the Act, read with Rules 4 to 8 of the Rules. There is no dispute regarding the competency of the Central Government

in enacting the above legislation. After going through the Statement of Objects and Reasons and in the absence of specific challenge as to lavy of

Cess, I hold that the levy of cess in terms of Section 5-A is neither illegal nor arbitrary as claimed.

It is stated that the term ""manufacturer"" has not been defined either in the Act or in the Rules, asn by adopting the definition appearing in the

Central Excise and Salt Act, the members of the petitioners are not ""manufacturers"" within the meaning of the Textiles Committee Act and hence

they are not liable for payment of any Cess. The term ""textiles"" means any fabric or cloth or yarn or garment or any other article made wholly or in

part of --(i) cotton; or (ii) wool; or (iii) silk; or (iv) artificial silk or other fibre. There is no dispute that the members of South Indian Hosiery

Manufacturer Association are the manufacturers of textiles (garments) and they have also registered as members in the aforesaid association. As

rightly contended on the side of the respondents, this indicates that they are manufacturers of textiles and are liable to submit returns and pay cess

in terms of Section 5-A of the Act. As a matter of fact, apart from specifically stating in the counter affidavit, an argument was also advanced by

the learned counsel for the respondents that there are many garment/ hosiery manufacturers and exporters submitting returns and pay cess to the

committee in accordance with the provisions of the Act and only a few members of South India Hosiery Manufacturers Association have not

submitted the returns and paid the cess. The said statement of fact made by the Assistant Inspecting Officer of the Textile Committee, Mylapore,

Madras-4 has not been controverted by the petitioner Association by filing reply affidavit.

By drawing my attention to Section 2(b) and 2(d) of the Central Excise and Salt Act, 1944, learned senior counsel for the petitioner,

elaborately argued that the combined reading of Section 2(b) and (d) shows that a person who manufacturers or produces any excisable goods

specified under Central Excise Tariff as being subjected to a Duty of Excise be a ""manufacturer"" for the purpose of collection of Duty of Excise.

According to him, the hosiery articles manufactured by the members of the petitioner are not subjected to Duty of Excise free from licensing

control of Excise by virtue of exemption provided by statute. It is also his case that the members of the petitioner Association are not the

manufacturers within the meaning of Central Excise and Salt Act, 1944 and, therefore, they would not be manufacturers within the meaning of

Textile Committee Act Textile Committee Rules, accordingly they are not liable for payment of any cess. A perusal of various clauses in the

definition section in the Act, it is clear that the word ""manufacture"" covers also conversion of any form of textile goods into another such form and

the word ""manufactures"" includes also all persons who employed hired labour or who engage in production or manufacture of textile goods on their

own account. Accordingly, all hosiery/ garment manufacturers have to pay cess as per the Textiles Committee Act. However, the respondents

themselves have clarified in the counter affidavit that in case of job works are concerned, if they are able to show the proof that the owner of the

material have paid the cess, there will be exemption for the job workers.

It is also contended that, hosiery manufactured by the members of the petitioner are not excisable goods within the menaing of Central Excise

and Salt Act, 1944 and, therefore, hosiery unit is not factory as defined under Central Excise and Salt Act, 1944. This contention is met by the

respondents by explaining that u/s 2(db) of the Textile Committee Act, powerloom industry is an industry in which a manufacturer of textiles has, at

any time during the period fixed by the committee under clause (a) of Sub-section (5) of Section 5-A, not more than 50 powerlooms (without any

spinning plants) in the factory or factories owned, controlled or managed by him. This clause is to determine whether any powerloom industry

within this provision of law, is liable to pay cess or not? This has been wrongly understood by the petitioners. Likewise, there is no mention in the

Act or in the Rules that the cess should be collected only from the orgainsed industry. It is clear from the language used in Section 5-A(1) of the

Act, the cess has to be collected from all manufacturers of textiles and not from any organised sector of manufacturers as contended by the

petitioners.

It is true that the members of Association are exempted from payment of Central Excise and as per Rule 8, if any manufacturer fails to furnish

return referred to in Rule 4 within the period specified therein, or the return tiled by the manufacturer is incorrect or defective, the Assessing Officer

after giving an opportunity of being heard to the manufacturer, assess the amount of cess on the basis of the account obtained from the Central

Excise Department. Relying on the said clause, learned senior counsel for the petitioner contended that the data collected from the Commercial

Tax Office instead of Central Excise Department by the Assessing Officer cannot be accepted and the consequential direction for payment of levy

also cannot be sustained. As per the provisions of the Act and the Rules, it is obligatory on the part of each manufacturer of textiles to file monthly

return under Rule 4. It is specifically stated in the counter affidavit that the Federation of hosiery manufacturers were addressed to instruct their

members to file returns and pay cess besides sending circular to each and every manufacturer inviting their attention to the provision of the Act and

the Rule and their obligation to file returns and pay cess. It is also stated that advertisement have been made in leading newspapers inviting the

attention of the manufacturers of garments/ hosiery enlightening the provisions of the Act and the rules and their liability thereon to submit returns

and pay the cess. Though Rule 8 enables the Assessing Officer to assess the amount of cess on the basis of figures obtained from the Central

Excise Department, in view of the fact that garment/ hosiery manufacturers are not covered under the Central Excise and Salt Act the other

alternative left with the committee was to collect the sales turn over on the basis of the returns filed by them to the Commercial Tax Department.

Though this procedure has not been specifically provided in the Rules, I am of, the view that due to the fact that the members of the petitioner

Association are exempted from the provisions of the Central Excise and Salt Act, the action of the Assessing Officer in collecting the sales turnover

figures from the Commercial Tax Office cannot be said to be an erroneous one. As a matter of fact, the Rules provided elaborate procedure. First

of all, the manufacturer has to submit their monthly returns in Form-A or in Form-B, as the case may be, for each month duly signed by the person

concerned or any person authorised by him so as to reach the Committee not later than 15 days after the expiry of the month to which the return

relates. Thereafter, the Assessing Officer shall assess the amount of the cess payable by each manufacturer for each quarter on the basis of the

data furnished in the monthly returns referred to in Rule 4. Thereafter, the committee shall issue a notice of demand to the manufacturer for

payment of cess assessed under Rule 6. In cases of any failure by the manufacturer to furnish the return referred to in Rule 4 or if there is any

mistake in the return, after providing adequate opportunity of being heard, the committee has to assess the amount of cess on the basis of the

figures obtained from the Central Excise Department or on the basis of the average of the cess levied during he previous two quarters immediately

preceding the quarters for which assessment is being made. It is clear that apart from providing elaborate procedure, the Rules contemplate notice

and personal hearing before passing assessment order. In such a circumstance, the petitioners Association cannot have any serious grievance

though the committee collect sales turnover on the basis of the return filed by them to the Commercial Tax Department in certain cases. In other

words, relying on the sales figures obtained from the Commercial Sales Department, before passing any order, it is incumbent on the Assessing

Officer to issue notice to the manufacturer and afford him an opportunity of being heard, hence I do not find any illegality in the course being

adopted by the Assessing Officer.

Regarding the contention based on Rule 10, it is explained by the respondents that. Rule 10 indicates clearly that the one year period

mentioned relates to recovery of cess, short levied or erroneously levied on a notice of demand from the committee to the manufacturers of textiles.

They also explained that this time limit of one year is nothing to do with the submission of return and payment of cess by the manufacturers of

textiles. Accordingly, I am unable to accept the contention of the learned senior counsel for the petitioner.

Before winding up, It is also useful to refer a judgment of the Supreme Court in Sirsilk Ltd. Vs. Textiles Committee and Others, : wherein Their

Lordships had an occasion to consider the very same provisions of the Textiles Committee Act and the rules made thereunder. After referring to

the expression ""textiles"" as defined in Section 2(g) of the Act. Their Lordships have held that in the premises, the expression ''textiles'' as defined in

Section 2(g) has to be given a broad and liberal construction, in furtherance of the purpose and object of the Act. They also held that the particular

words ''used by the legislature i.e. the terms yarn, man made fibres, otherwise known as artificial silk'' therefore had to be understood according to

the common commercial understanding of the terms used, and not in their scientific or technical sense. They further held that the Act is not a

scientific treatise on organic or inorganic chemistry but is an enactment by the Parliament for the benefit of the indigenous textile industry, so that it

may be able to hold its own in a fiercely competitive international market. They also held that there is no reason for Parliament to have left out man

made fibres like viscose staple fibre, rayon yarn and nylon yarn from the purview of the definition of textiles in Section 2(g) prior to its amendment

particularly when synthetic fibres have a world market and India has entered into a competitive international trade in all textiles in a large way. In

the very same decision. Their Lordships have also upheld the provisions of the Act and Rules. They also held that when the levy of the fee is for the

benefit of the entire textile industry, there is sufficient quid pro quo between the levy recovered and the services rendered to the industry as a

whole, Further, the notification dated 1-6-1977 issued by the Government of India deals with the increase of Cess from 0.025% to 0.050%

advalorem from 1-6-1977 from all manufacturers of Textiles and Textile machinery in terms of sub-section of Section 5-A. Learned counsel

appearing for the respondents has also filed typed set of papers containing notice of demand under the Rules which shows the value of textiles on

which cess is levied and the amount of cess at 0.05 per cent advalorem. The cess levied is very negligible compared to the value of textiles.

Further, even though this court has granted injunction subject to the condition the petitioner pays 50 per cent of the demand. it is fairly stated that

the said conditional order has not been complied with I have already referred to the statement made by the learned counsel for the respondents as

well as in the counter affidavit that in spite of the pendency of the writ petition, there are many garment/ hosiery manufacturers and exporters

submitting their returns and pay cess to the committee in accordance with the provisions of the Act and only few members of petitioner Association

has not submitted the return and paid cess. It is also brought to my notice by the learned counsel for the respondents that no one has challenged the

power of the Government nor the provisions of the Act and Rules as illegal or irrational in India. On the other hand, it was brought to my notice

various orders passed by this Court, and the Karnataka High Court as well as the Andhra Pradesh High Court, directing the Assessing Officer to

provide adequate opportunity, namely, notice and [personal hearing before passing assessment orders. I have already referred to that notice and

adequate opportunity of being heard are provided in the Rules and the same have been reiterated in those decisions-vide order of R. Jayaslmha

Babu, J. , in W.P. No. 2416 of 94 dated 3-8-2001; order of S. Rajendra Babu, J., (as he then was) in W.P. No. 2805 of 94 connected with

W.P. Nos. 2802 and 2318 of 94 dated 29-7-1994; order of V. K. Singhal, J.. in W.P. No. 17762 of 94 dated 21-9-1998; order of H.L. Dattu,

J., in W.P. Nos. 1848 to 1849 of 1995 dated 24-11-1998; and the Division Bench order of Andhra Pradesh High Court, consisting of S.R.

Nayak and S. Ananda Reddy, JJ., in W.P. No. 13171 of 2000 dated 17-10-2000.

In the light of what is stated above, I do not find any merit in the writ petition; consequently the same is dismissed. No costs. Consequently,

connected W.M.P., is also dismissed.