Chadha, J.
1. This petition under article 226 of the Constitution of India seeks a writ of certiorari to quash the assessment order dated March 6, 1984 passed by the Tax Assessment Officer, Ward No. 33 levying sales tax at the rate of 10 per cent. on the sale of 'woolen carpet yarn' for the assessment year 1979-80 under the Central Sales Tax Act, 1956.
2. The petitioner, M/s. Gian Chand Ramji Das, is a partnership firm. It is a registered dealer with the Sales Tax Officer, Ward No. 33, Delhi, bearing registration No. 15830 under the Bengal Finance Sales Tax Act, 1941, as extended to the Union Territory of Delhi, and now under the Delhi Sales Tax Act, 1975 (hereinafter referred to as the 'local Act') and bearing registration No. 3900 under the Central Sales Tax Act, 1956 (hereinafter referred to as the 'Central Act'). The nature of the business of the petitioner is dealing in raw wool and carpet woolen yarn.
3. The rate of tax is provided under section 4(1) of the local Act reading as follows :
'Section 4(1) The tax payable by a dealer under this Act shall be levied -
(a) in the case of taxable turnover in respect of the goods specified in the First Schedule, at such rate of twelve paise in the rupee;
(b) in the case of taxable turnover in respect of the goods specified in the Second Schedule, at such rate not exceeding four paise in the rupee as the Central Government may, from time to time, by notification in the Official Gazette, determine;
(c) in the case of taxable turnover in respect of any food or drink served for consumption in a hotel or restaurant or part thereof, with which a cabaret, floor show or similar entertainment is provided therein, at the rate of forty paise in the rupee;
(d) in the case of taxable turnover in respect of any other goods, at the rate of seven paise in the rupee :
Provided that the Administrator may with the previous approval of the Central Government and by notification in the Official Gazette, add to, or omit from, or otherwise amend, the First Schedule or the Second Schedule, either retrospectively or prospectively, and thereupon the First Schedule or, as the case may be, the Second Schedule, shall be deemed to be amended accordingly :
Provided further that no such amendment shall be made retrospectively if it would have the effect of prejudicially affecting the interest of any dealer :
Provided also that in respect of any goods or class of goods the Administrator is of opinion that it is expedient in the interest of the general public so to do, he may, with the previous approval of the Central Government and by notification in the Official Gazette, direct that the tax in respect of the taxable turnover of such goods or class of goods shall, subject to such conditions as may be specified, be levied at such modified rate not exceeding the rate applicable under this section, as may be specified in the notification.'
4. The items sold by the petitioner are covered by clause (d) of sub-section (1) of section 4 and the rate of tax would be seven paise in a rupee.
5. The rate of tax of sales in the course of inter-State trade or commerce are provided in section 8 of the Central Act. Under section 8(2-A) of the Central Act, the rate of tax will be same if under the local Act the rate is lower than 4 per cent. Section 8(2-A) reads as under :
'8. (2-A) Notwithstanding anything contained in sub-section (1-A) of section 6 or sub-section (1) or clause (b) of sub-section (2) of this section, the tax payable under this Act by a dealer on his turnover in so far as the turnover or any part thereof relates to the sale of any goods, the sale or, as the case may be, the purchase of which is, under the sales tax law of the appropriate State, exempt from tax generally or subject to tax generally at a rate which is lower than four per cent. (whether called a tax or fee or by any other name), shall be nil or, as the case may be shall be, calculated at the lower rate.'
6. Power is conferred by the third proviso to sub-section (1) of section 4 of the local Act to direct that the tax in respect of taxable turnover of such goods or class of goods, subject to such conditions as is specified, be levied at such modified rate not exceeding the rate applicable under the section, as may be specified in the notification. The Administrator by notification dated October 21, 1975 published in the Delhi Gazette extraordinary, expressed the opinion that it is expedient in the interest of general public so to do that the rate of tax in respect of taxable turnover of the specified goods [which are covered by clause (d) of sub-section (1) of section 4] shall be as noted against each. This was notified with the previous approval of the Central Government. The notification enumerates 51 items of goods and the rate of tax is specified against each. The description of the goods and rate of tax in respect of certain items which are relevant for my purpose may be noticed :
Name of the goods Rate of tax14. Cotton waste Five paise in the rupee.15. Cotton yarn waste Five paise in the rupee........ .........22. Woolen carpet yarn Five paise in the rupee........ .........Knitting wool Five paise in the rupee........ .........41. Raw wool Two paise in the rupee........ .........
7. By a similar notification dated October 21, 1975 the Administrator directed that the rate of tax in respect of taxable turnover of the specified goods [which are covered by clause (b) of sub-section (1) of section 4] shall be as noted against each; one of the item is in respect of cotton yarn as defined in section 14 of the Central Act and the rate of tax specified is 'one paisa in the rupee'.
8. The Administrator issued another notification of February 27, 1978. As the decision of the writ petition turns on this notification, it is apposite to reproduce the same.
'WHEREAS the Administrator is of the opinion that it is expedient in the interest of the general public so to do :
Now, thereforee, in exercise of the powers conferred by the third proviso to sub-section (1) of section 4 of the Delhi Sales Tax Act, 1975 (No. 43 of 1975), the Administrator with the previous approval of the Central Government hereby directs that the rate of tax in respect of the taxable turnover of all varieties of yarn other than cotton yarn and knitting wool [which are covered by clause (d) of the said sub-section] shall be two paise in the rupee.
This notification shall come into force with effect from the date of its issue.'
9. The Delhi Wool Merchant Panchayat (for short called 'the Panchayat') after the issue of the said notification dated February 27, 1978 sent a letter expressing gratitude to the Sales tax Commissioner. A query was raised whether the Central sales tax shall also be applicable as per the local sales tax, i.e., at the rate of 12 per cent. without C form and a confirmation was sought from the Sales Tax Commissioner. The Sales Tax Officer (HQ) in response wrote a letter dated March 27, 1978 that the presumption of the Panchayat is correct and the Central sales tax shall also be applicable at par with local sales tax at the rate of 2 per cent. Since the letter did not mention anything about the C form, a further letter dated September 14, 1978 was written by the Panchayat whether the C form is also to be obtained along with the above rate of Central sales tax at 2 per cent. on woolen carpet yarn or not. The Assistant Commissioner of Sales tax (HQ), vide letter dated October 17, 1978 informed the Panchayat that furnishing of C form in such circumstances doe not seem necessary under section 8(2-A) of the Central Act. A further letter dated January 18, 1979 was written by the Panchayat for confirmation that the condition of furnishing of C form is not required in respect of 'carpet woolen yarn'. The Assistant Commissioner of Sales Tax (HQ), vide letter dated February 7, 1979 on the subject of levy of Central sales tax and C form on woolen carpet yarn, categorically stated that furnishing of C form in the circumstances narrated in the said letter dated January 18, 1979 is not necessary under section 8(2-A) of the Central Act.
10. The case of the petitioner before the Tax Assessment Officer for the assessment year 1978-79 was that carpet woolen yarn would be covered under the description used in the notification of February 27, 1978, i.e., 'all varieties of yarn'. The assessment order dated March 19, 1983 made by the Tax Assessment Officer, Ward No. 33, records the nature of business of the petitioner as dealing in raw wool and carpet woolen yarn. It is directed in the assessment order that the sale of raw wool would be taxed at the rate of 2 per cent. and the sale of (carpet) woolen yarn would also be taxed at 2 per cent. in view of Notification No. F. 4(18)/77-Fin. (G) dated February 27, 1978.
11. The Commissioner of Sales Tax later issued circular No. 4P. 1983-84 on April 8, 1983 to all the assessing authorities reading as follows :
12. It has been reported that some assessing authorities are taxing woolen carpet (yarn) at 2 per cent. under the belief that it is covered by entry No. 52 of the Notification No. F. 4(73)/74 Fin. (G) dated October 21, 1975 regarding rate of tax on general goods. The matter has been examined and the opinion furnished by the Law and Judicial Branch is as under :
'Entry No. 52 is a residuary entry and is intended to cover all varieties of yarn other than the variety specifically provided for or covered by any other entry in the schedule or notification. Entry No. 22 is a specific entry and cannot be obliterated because of entry No. 52.'
13. The opinion given by the Law and Judicial Branch is, thereforee, that woolen carpet yarn is taxable at the rate of 5 per cent. and not 2 per cent.
14. This is brought to the notice of all the assessing/appellate authorities, so that they may keep this in view while passing any assessment/appeal order, and for initiating suo motu revision proceedings wherever considered fit.
15. This question again arose in the case of the petitioner for the assessment year 1979-80. The petitioner was required to show cause as to why the sales of woolen carpet yarn, on which tax had been paid at 2 per cent. should not be assessed at 5 per cent. under the notification dated October 21, 1975 on the ground that this notification is of a specific nature. The petitioner showed cause and submitted that the language of the notification dated February 27, 1978 is quite clear and unambiguous and it prescribes tax at 2 per cent. on 'all varieties of yarn' excluding knitting wool and cotton yarn. It was also urged that the subsequent notification dated February 27, 1978 supersedes the earlier one and the later notification must have precedence on earlier notification. The Tax Assessment Officer in the impugned order dated March 6, 1984 came to the conclusion that the petitioner sold carpet woolen yarn for a sum of Rs. 4,79,236 for which the petitioner had not submitted any C form and hence on this amount 10 per cent. tax was levied.
16. Mr. Wazir Singh, the learned counsel for the respondents, has raised a preliminary objection that the writ petition is incompetent on account of the existence of adequate alternative remedies provided under the Central Act read with the local Act inasmuch as the petitioner should have filed an appeal against the impugned order and availed of other efficacious remedy under the two Acts. Reliance is placed on Titaghur Paper Mills Co. Ltd. v. State of Orissa : [1983]142ITR663(SC) wherein it was held :
'Under the scheme of the Act, is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under sub-section (1) of section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under article 226 of the Constitution. It is now well-recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.'
17. It is well settled that the exercise of power, for other purposes, i.e., purposes other than the enforcement of fundamental rights, is discretionary. The High Court may refuse to entertain the petition upon a consideration of certain circumstances as disentitling to relief even though the petitioner has a legal right which has been infringed. One of the grounds is that there is an alternative efficacious remedy available. This Court, however, entertained the writ petition and issued rule nisi. This Court decided to hear the petition on merits. The view taken by the Court is that the existence of an alternative remedy is not per se a bar to the issue of a writ by the Court. It is a matter depending upon its discretion to be judicially exercised on the facts and circumstances of each case. In taxing matters when the taxing authority acts without jurisdiction accompanied by threat of using coercive method for collecting tax, the Courts have intervened in suitable cases even if other remedy by way of appeal is available. The Supreme Court has also taken the view that resort to the High Court in matters relating to assessment, levy and collection of tax may be permitted only when the question of infringement of fundamental rights arises, or where the taxing authorities are shown to have assumed jurisdiction which they do not possess. (See Shivram Poddar v. Income-tax Officer, Central Circle II, Calcutta : [1964]51ITR823(SC) and State of U.P. v. Mohammad Nooh AIR 1958 SC 86). In the Titaghur case the High Court dismissed the writ petition in liming challenging the two orders of assessment. The High Court was not satisfied that it was a case of inherent lack of jurisdiction or any violation of principles of natural justice and for this reason gave an opportunity to the writ petitioner to first avail of the right of appeal. This was upheld by the Supreme Court. In the case before me the challenge is that the order of assessment is patently in excess of the jurisdiction being vocative of the exemption notification dated February 27, 1978. The view taken in Goodwill India Ltd. v. State [1980] 45 STC 368 by a Division Bench of this Court is :
'At the time of the filing of the writ petitions, thereforee, this Court had jurisdiction to entertain these writ petitions, though the exercise of this jurisdiction was at the discretion of this Court. In Gee Vee Enterprises v. Additional Commissioner of Income-tax : [1975]99ITR375(Delhi) reference was made to the decisions of the Supreme Court in Sheo Nath Singh v. Appellate Assistant Commissioner : [1971]82ITR147(SC) and L. Hirday Narain v. Income-tax Officer : [1970]78ITR26(SC) and it was observed that this Court would not be warranted in dismissing a writ petition on the preliminary ground of the failure to avail the alternative remedy if the Court once considers the merits of the case. In our view, the merits of the case are considered first when a writ petition is admitted. These writ petitions were admitted and were ordered to be heard together. At first, notice to show cause why the writ petitions be not admitted were issued. The counter-affidavits were filed showing cause why they should not be admitted. After hearing the parties, the Court admitted these writ petitions, apparently after considering the merits of each case. Once this is done it would not be fair according to the observations of the Supreme Court in the above-mentioned decisions to dismiss these cases at this late stage on the preliminary ground that the petitioners have not availed themselves of the alternative remedy. In out view, an order admitting the writ petition means that the Court will decide the case on merits. If the preliminary objection of law had to be considered, it should have been considered at the time of admitting the writ petitions. In the L. Hirday Narain's case : [1970]78ITR26(SC) , the Supreme Court also observed that if the High Court had not entertained the writ petition, the petitioner would have resorted to the statutory remedy before it was barred by time. Hence, in such circumstances, the High Court cannot dismiss the writ petition on the ground that it is not maintainable, because the petitioner has not availed himself of the alternative remedy. It may be mentioned further that at the time when the writ petitions were filed clause (3) had not been added to article 226 of the Constitution and now again on the date on which we are deciding the writ petitions also clause (3) of article 226 which had been added in the meantime by the Constitution (Forty-second Amendment) Act has been repealed by the Constitution (Forty-fifth Amendment) Act, which has been ratified by the States and has just been assented to by the President. It is not, thereforee, a bar for our entertaining and deciding the writ petitions.'
18. I am thereforee, not inclined to accept the preliminary objection and hereby reject it.
19. The notification dated February 27, 1978 directs that the rate of tax in respect of taxable turnover of all varieties of yarn other than cotton yarn and knitting wool shall be 2 paise in the rupee. The term 'all varieties of yarn' is wide enough to include any fibre spun and prepared for weaving or knitting or any other similar purpose. Yarn in all varieties would mean all kinds or forms or species of yarn. The commonly accepted sense of a term in commercial transactions should prevail in construing the description of an article of daily use in the community. Carpet woolen yarn in common parlance is also a species of yarn and thus would be included in the term employed in the said notification dated February 27, 1978. The case of the respondents is also not that carpet woolen yarn is not covered by the description of 'all varieties of yarn'. The case is that the entry No. 22 of the notification dated October 21, 1975 specifically provides for taxability of woolen carpet yarn at 5 per cent. and the notification dated February 27, 1978 inserts entry No. 52 and being a residuary entry relates to other varieties of yarn not specifically provided for. The construction placed by the respondents is that entry No. 22 is a specific entry and cannot be obliterated because of entry No. 52. This submission is devoid of merit.
20. The notification dated October 21, 1975 enumerates 51 items of goods and the rate of tax is specified against each. It is a reduced rate of tax in exercise of the power conferred by the third proviso to sub-section (1) of section 4 of the local Act. The tax is to be levied at the modified rate. The rate of tax on the woolen carpet yarn at Seriall No. 22 as also knitting wool at Seriall No. 30 is modified to five paise in a rupee. Subsequently the Administrator issued another notification of the February 27, 1978. The notification dated February 27, 1978 is issued independently of the earlier notification. It does not insert any new entry No. 52 in the notification dated October 21, 1975. It does not amend or modify the notification dated October 21, 1975. There is thus no foundation to build the argument that a residuary entry No. 52 has been inserted in the earlier notification.
21. The notification dated February 27, 1978 specifies the rate of tax in respect of the taxable turnover of all varieties of yarn other than cotton yarn and knitting wool. It is a complete notification in regard to the modification of the rate of tax. The generality of the expression 'all varieties of yarn' embraced within its ambit all species of yarn including woolen carpet yarn. The notification does not exclude (except cotton yarn and knitting wool) from all varieties of yarn any kind of yarn already covered by any other earlier notification. In the absence of the express language employed in restricting the scope of the exemption, full effect has to be given to the plain language used. The notification of October 21, 1975 had included in it goods described as woolen carpet yarn and knitting wool. The notification of February 27, 1978 while expressing 'all varieties of yarn' had excluded also knitting wool. Knitting wool thus continued to be covered by the earlier notification with the rate of tax at five per cent. In case of knitting wool it was expressly excepted, but not in case of woolen carpet yarn. The earlier notification dated October 21, 1975 thereforee, must be deemed to have been impliedly superseded in so far it related to woolen carpet yarn.
22. In Jaimets Private Ltd. v. State of U.P. [1984] 55 STC 119 the State Government in exercise of the powers conferred under the proviso to section 3-A(2-A) of the U.P. Sales tax act, 1948 vide notification dated 31st August, 1979 declared that yarn of all kinds except cotton yarn but including desi Kati were liable to tax at the rate of 2 per cent. A view was expressed that acrylic yarn was synthetic yarn and thus taxable at the rate of 2 per cent. This was not the intention of the State Government while issuing the said notification and thereforee, amendment and validation ordinance had to be promulgated. It was expressed :
'While excluding item No. 108 from the schedule which concerned itself with yarns of all kinds except those of the nature specified in entry No. 105 and which the State Government, in exercise of its powers under the proviso to sub-section (2-A) of section 3-A, issued Notification No. 822A/X dated 31st of August, 1979 providing therein that yarn of all kinds except cotton yarn but not including desi Kati was to be liable to tax at the rate of 2 per cent. with effect from 1st of September, 1979. Apparently, generality of the expression 'yarn of all kinds' embraced within its ambit 'knitting yarn, whether woolen, acrylic or of any other kind' mentioned in Notification No. 2177/X dated 1st of March, 1979 as well and thus rendering such yarn liable to tax at the rate of 2 per cent.
Realizing that it was not the intention of the State Government to, while issuing Notification No. 8224/X dated 31st of August, 1979 affect the rate of tax in respect of knitting yarn provided for by Notification No. 2177/X dated 1st of March, 1979 the Governor of Uttar Pradesh promulgated the U.P. Sales Tax (Amendment and Validation) Ordinance, 1981. Section 21(5) of the Ordinance provided that in Notification No. 8224/X dated 31st of August, 1979 in the list therein, in the entry in column II again Seriall No. 1, for the words 'except cotton yarn', the words 'except those covered by any other notification' shall be substituted and be deemed to have been substituted.'
23. It gave a retrospective operation to the provision by creating a legal fiction. It is only then it was held that nothing in the said notification affected the liability of acrylic yarn sold by the petitioner there. In the case before me the language employed is 'all varieties of yarn' which in my opinion would cover woolen carpet yarn. There is no exception that all varieties of yarn will not cover those goods which are already covered by any other notification.
24. The notification date February 27, 1978 uses the words 'all varieties of yarn'. There is no reason, in my view, as to why the scope of the words ought to be restricted. The Administrator wanted to restrict the meaning by excluding cotton yarn and knitting wool. There is no other limitation or restriction placed on the scope of these words. If the Administrator wanted to give a restricted meaning to the words 'all varieties of yarn' so as to exclude woolen carpet yarn, then he would have so expressed. If the Administrator intended such a restriction, the words 'all varieties of yarn' should have been qualified to mean other than woolen carpet yarn or other than those covered by earlier notifications. In the absence of any constraints, the words in the notification of February 27, 1978 have to receive full import with the result that the rate of tax in respect of the taxable turnover of woolen carpet yarn is two paise in the rupee.
25. Because of the view I have taken of the scope of the notification dated February 27, 1978 I am not discussing various cases cited before me (Harnam Singh v. State of Punjab , P. V. Naik v. State of Maharashtra : AIR1967Bom482 .) by Shri Wazir Singh, the learned counsel for the Revenue, on the question of interpretation of special and general provisions in the same statute. The particular provision contained in the notification of October 21, 1975 cannot be operative because of the subsequent implied supersession by the notification dated February 27, 1978. I am also not specifically noticing various other cases cited at the Bar laying down that different provisions of the same statute, which are apparently inconsistent with one another should be construed so as to give effect to all the provisions, so as to avoid repugnancy. It is true that implied repeal is not readily inferred. The Courts as a rule lean against implying a repeal unless the two provisions cannot stand together. In the case before me exemptions from sales tax or modification of sales tax has been granted by the two statutory notifications. The two have not been issued simultaneously. The subsequent notification does not add another entry to the earlier notification but is an independent one. This notification has to be given full scope and amplitude and cannot be whittled down by importing limitations not inserted by the Administrator. Even if there is some ambiguity, the benefit must go to the taxpayer.
26. In fairness to Mr. R. C. Chawla, the learned counsel for the petitioner, I may say that a number of authorities have been referred to laying down principles for construing fiscal legislation. Referring to the ratio of the precedents, he urges that the Courts in interpreting a taxing statute will not be justified in adding words thereto so as to make out some presumed object of the legislature. It cannot proceed to make goods the deficiencies, if there be any in the statute. It is settled law that in case of doubt, that interpretation of the taxing statute which is beneficial to the taxpayer must be adopted. If two views are possible then the view which is favorable to the assessed must be accepted while construing the provisions of a taxing statute. In considering a taxing Act, the Court is not justified in straining the language. (State of Bombay v. A & A Industries Corporation [1961] 12 STC 122 (SC), State of Punjab v. Jullundur Vegetables Syndicate : [1966]2SCR457 , Alladi Venkateswarlu v. Government of Andhra Pradesh : [1978]3SCR190 , Commissioner of Income-tax v. Kulu Valley Transport Co. Ltd. : [1970]77ITR518(SC) , Kannappa Mudaliar v. State of Madras [1968] 21 STC 41 (Mad), Rajpur Farms Ltd. v. Commissioner of Commercial Taxes (FB), Commissioner of Income-tax v. Straw Board . , etc.) These principles stated in have been well settled and are hardly even doubted. It is in the application of those principles that one has to bear in mind that though the benefit of the ambiguity must go to the subject and the taxing provision must receive a strict construction, 'that is not the same thing as saying that a taxing provision should not receive a reasonable construction'. If the Administrator feels that the modification of the rate at 2 per cent. should not be available to the dealers in woolen carpet yarn, then he must step in as was done by the State of U.P., but till then the petitioner is entitled to get the benefit of the tax relief.
27. For the above reasons the writ petition succeeds and is hereby allowed. The impugned order is hereby, quashed in so far as it computes the taxable turnover of woolen carpet yarn at the rate of 10 per cent. instead of 2 per cent. and imposed penalties. On the facts and circumstances of the case I make no orders as to costs.