V.P. Gopalan Nambiyar, C.J.
1. These are revisions by the revenue against the orders of assessment relating to the assessment years 1972-73 and 1973-74. Two questions of law had been raised in the memorandum of revision as arising out of the order of the Tribunal and calling for determination, viz.:
(A) Was the Appellate Tribunal justified in law in holding that the assessee's turnover in respect of 'calico cloth' for the years 1972-73 and 1973-74 would fall under item No. 7 of the Third Schedule to the Kerala General Sales Tax Act, 1963, and so liable to be exempted? Is the reasoning and conclusion of the Appellate Tribunal to hold that 'calico cloth' would fall under item No. 7 of the Third Schedule, valid and justified in law?
(B) Is the claim of 'sales returns' by the assessee for the years 1972-73 and 1973-74, as excludible from the taxable turnover, valid and justified in law? Has the assessee proved that the inclusion of the turnovers claimed under these items are liable to be deducted (or excludible) under Rule 9(b)(ii) of the Kerala General Sales Tax Rules, 1963? Is not the decision reported in Traders and Traders v. State of Tamil Nadu [1977] 40 S.T.C. 289 (F.B.) applicable to the instant case?
2. The first question for consideration is whether 'calico cloth' in respect of the turnover of which the assessee was sought to be assessed can fall within item 7 of the Third Schedule to the General Sales Tax Act. The next question is whether the assessee is entitled to claim deduction under Rule 9(b)(ii) of the General Sales Tax Rules in respect of, what we may refer to as 'sales returns'. The latter question arises with respect to the provisions of Rule 9(b)(ii) of the General Sales Tax Rules, which reads as follows:
9. Determination of taxable turnover. -- In determining the taxable turnover, the amounts specified in the following clauses shall, subject to the conditions specified therein, be deducted from the total turnover of the dealer: --
(a) ...,
(ii) all amounts received from the sellers in respect of goods returned to them within a period of 3 months from the date of delivery of goods by the dealer, when the goods are taxable on the amount for which they have been bought provided that the accounts show the date on which the goods were returned and the date on which and the amount for which refund was received.
With respect to this rule, a Division Bench of this Court has ruled in Jay Engineering Works Ltd. v. State of Kerala [1979] 43 S.T.C. 492 that it is not necessary to include the turnover in respect of which deduction is sought to be claimed, within the assessment year itself. That decision is against the revenue. As far as the second question is concerned, therefore, the view taken by the Tribunal is correct and calls for no interference.
3. In regard to the first question what has to be considered is whether 'calico cloth' would fall within 'cotton fabrics' as used in item 7 of the Third Schedule to the Act. Item 7 of the Third Schedule to the Act reads:
Cotton fabrics, woollen fabrics and rayon or artificial silk fabrics as defined in items Nos. 19, 21 and 22 respectively of the First Schedule to the Central Excises and Salt Act, 1944.
4. That should focus attention on the definition of 'cotton fabrics' in items Nos. 19, 21 and 22 of the First Schedule to the Central Excises and Salt Act, 1944. We spare ourselves from the trouble of extracting the definition as given in the relevant entries in the Central Excises and Salt Act. The definition in that Act and its scope and content fell, to some extent, for examination in a Division Bench ruling of this Court in Ateesee v. State of Kerala I.L.R. (1977) 2 Ker. 659. Many decisions which have application to the consideration of the question now arising for decision are also referred to in that decision. For instance, we referred to the judgment of the Gujarat High Court in Hind Engineering Company, Rajkot v. Commissioner of Sales Tax, Gujarat [1973] 31 S.T.C. 115, which ruled that rubber beltings manufactured by superimposing rubber or rubber compound on both sides of canvas, and used in machineries employed for transmission of power are not 'cotton fabrics', within entry 15 of Schedule A to the Bombay Sales Tax Act, 1959. We referred again to the Madras High Court decision in the East India Rubber Works' case [1974] 33 S.T.C. 399, where the question considered was whether 'waterproof cloth' would be covered by the expression 'textile' occurring in the said item. Reference was also made to the judgment of this Court in the Kesavan and Co.'s case2, where this Court did not accept as correct the 'identity test' or the principle that loss of identity or different use of the article or change in the properties and characteristics of the article may indicate that the article in question is fundamentally different. In the Kerala case [1976] 37 S.T.C. 221, it was held that caristrap rayon cord strapping is a different item from articles made out of rayon cloth. These decisions, which we have referred to, disclose the principle in the light of which the decision of this question has got to be considered and approached. The Tribunal, we are afraid, has not chosen to approach this question from the standpoint of the principles in the light of which these decisions have examined the question. It is, therefore, necessary to direct the Tribunal to consider this matter afresh and to render its decision in the light of the principles referred to above.
5. We allow this revision and set aside the order of the Tribunal and send the matter back to the Tribunal for fresh determination in accordance with law and in the light of the observations contained in this judgment. No order as to costs.