Desai, J.
1. The facts leading to this reference are that Shree Ram Industries, the applicant herein, is a partnership-firm doing the business of manufacturing for sale art silk saris and also reselling saris. The firm sells saris either in the same condition in which they are manufactured or, in some cases, after embroidering butta or attaching zalar to such saris. The total turnover of the sales of the firm for the period between 29th October, 1962, to 17th October, 1963, was Rs. 35,41,358. Sales to the extent of Rs. 3,24,262 were held by the Sales Tax Officer as sales of tax-free goods covered by entry 41 of Schedule A to the Bombay Sales Tax Act, 1959 (hereinafter referred to as the Act). Sales of Rs. 85,641 were held to be covered by entry 11A or entry 19 of Schedule E to the Act. Out of these sales for Rs. 85,641, sales for Rs. 45,216 were sales of saris either embroidered or decorated with butta, while sales for Rs. 40,425 were in respect of saris to which zalars were attached. The dispute before the Tribunal was confined only to sales of saris with zalars amounting to Rs. 40,425, and the question that arose before the Tribunal was whether the said turnover could not be considered for the purpose of taxation, in view of the contention that the saris to which zalars were attached were covered by entry 41 of Schedule A with the consequence that their sale was free from any taxation. The Tribunal following the decision of this court in the case of Pravin Bros. v. The State of Gujarat ([1964] 15 S.T.C. 478.), came to the conclusion that the saris to which zalars were attached was a different commodity and was covered by entry 11A or 19 to Schedule E to the Act, and hence the turnover in that respect was liable for taxation under the Act. At the instance of the partnership-firm, the Tribunal has referred 3 questions to us for our answers and they are :
'(1) Whether, on the facts and in the circumstances of the case, the sales of saris of art silk fabrics to which zalars, that is, borders are attached by stiching them to saris after the process of manufacture are covered by entry 41 of Schedule A and, therefore, exempt from tax under sub-section (1) of section 5 of the Bombay Sales Tax Act, 1959
(2) If the answer to the first question is in the negative, whether, on the facts and in the circumstances of the case, saris of art silk fabrics to which zalars, that is, borders are attached by stitching them to saris after the process of manufacture are art silk fabrics within the meaning of sub-section (7) of section 14 of the Central Sales Tax Act, 1956
(3) If the answer to the second question is in the affirmative, whether, on the facts and in the circumstances of the case and having regard to the provisions of sub-section (7) of section 14 and section 15 of the Central Sales Tax Act, 1956, the rate shown against entry 11A and entry 19 of Schedule E to the Bombay Sales Tax Act, 1959, should be not more than 2 per cent of the sale price instead of the rate shown against that entry ?'
2. The short question which arises for our determination is whether the saris to which zalars have been attached are covered by entry 41 of Schedule A or by entry 11A or 19 to Schedule E to the Act. Entry 41 in Schedule A is in the following terms :
'41. Rayon or artificial silk fabrics as defined in item No. 22 of the First Schedule to the Central Excises and Salt Act, 1944.'
3. Item 22 of the First Schedule to the Central Excises and Salt Act, 1944, is as follows :
'22. Rayon or artificial silk fabrics : 'Rayon or artificial silk fabrics' include all varieties of fabrics manufactured either wholly or partly from rayon or artificial silk, but do not include any such fabrics -
(i) if it contains 40 per cent or more by weight of wool;
(ii) if it contains 40 per cent or more by weight of silk;
(iii) if it contains cotton and less than 60 per cent by weight of rayon or artificial silk;
(iv) if it contains no cotton and less than 40 per cent by weight of wool and less than 40 per cent by weight of rayon or artificial silk; or
(v) if manufactured on a handloom.'
4. Entry 11A of Schedule E of the Act is as follows :
'Saris embroidered or otherwise decorated, sold at a price not less than Rs. 18 but less than Rs. 30 per piece.'
5. There is an explanation to this entry which states that a sari decorated in the process of its weaving shall not be deemed to be a decorated sari, for the purpose of this entry. Entry 19 to Schedule E is to the following effect :
'19. Saris embroidered or otherwise decorated, sold at a price not less than Rs. 30 per piece.
Explanation. - A sari decorated in the process of its weaving shall not be deemed to be a decorated sari for the purpose of this entry.'
6. Section 5 of the Act provides, so far as relevant, that notwithstanding anything in the Act, but subject to the conditions or exceptions, if any, set out against each of the goods specified in column 3 of Schedule A, no tax shall be payable on the sales or purchases of any goods specified in that schedule. It was contended by Mr. Kaji that under the provisions of section 5, a dealer would not be liable to pay any tax on the sales or purchases of any goods set out in Schedule A to the Act. He further contended that in order to find out whether the article is taxable or not it was necessary first to look at the entries in Schedule A, which refer to goods which are exempted from the payment of tax. If the article under consideration falls in any of the entries in Schedule A, the question of considering whether the article falls in any other entry of other schedules does not arise. This is so, he contended, because of the overriding provisions of section 5. The said section proceeds on the footing that the goods mentioned therein are not chargeable to tax even though the goods may fall in any other entry in any other schedule. The non obstante clause used in section 5 gives to the said section an overriding effect. In view of the provisions of section 5, the first question the authority has to address itself, when a question arises as to whether the goods are taxable or not, is whether the goods fall within the exempted categories of the goods mentioned in Schedule A or not. It is not open to the court in such cases to invoke the rule of construction that a special provision excludes a general provision or that the entry in Schedule A should be read harmoniously with the relevant entry in other schedules which makes the goods taxable. In short, the argument is that the court should examine the question as to whether the article is exempted under Schedule A in isolation and if the court comes to the conclusion that the article falls within that entry in that schedule it is not open to the court to consider other relevant entries. In support of this argument, Mr. Kaji relied upon the decision of the Division Bench consisting of J. M. Shelat, C.J. (as he then was) and P. N. Bhagwati, J. (as he then was), in the case of State of Gujarat v. Umedram Lallubhai ([1965] 16 S.T.C. 1059.). The question which arose before the court was whether indori borders containing more than 60 per cent of pure silk and woven handloom out of silk, art silk and jari threads are handloom cloth within the meaning of entry 29 in Schedule A to the Act. The court when considering the said question observed as follows :
'But we may point out straightaway for reasons which will become apparent from what follows that if the borders can be said to be handloom cloth within the meaning of entry 29 of Schedule A, the sale of the borders would be exempt from tax and there would be no question of the State being entitled to tax the sale of the borders under entry 9 of Schedule E. .......... If, therefore, handloom borders fall within the expression 'handloom cloth' as used in entry 29 of Schedule A, their sale or purchase would be exempt from tax notwithstanding that they fall within any entry in any of the other schedules of the Act ........ But despite that, the sale or purchase of handloom borders would be exempt from tax if they can be said to be handloom cloth within the meaning of entry 29 of Schedule A, for the exemption granted under section 5 is an overriding exemption which prevails notwithstanding anything contained in any other provision of the Act.'
7. It was argued by Mr. Kaji that there is a direct conflict between the ratio laid down in Umedram's case ([1965] 16 S.T.C. 1059.) and the ratio laid in Pravin Bros. v. The State of Gujarat ([1964] 15 S.T.C. 478.), and, therefore, the case should be referred to a larger Bench.
8. We will now consider the contention of Mr. Kaji. The scheme of the Sales Tax Act is to levy sales tax on all goods when the turnover in respect of the goods exceeds a certain limit. In the Act are enacted various schedules containing various entries which refer to various articles or commodities on which the tax is payable at the rate mentioned therein or which are exempted from the payment of tax. Each entry in the schedule refers to a distinct commodity or article or, to put in other words, the commodity or article which is described in each entry is distinct and different. For the determination of liability to pay tax or at the rate of which it is payable or whether the article is exempted or not from the payment of tax, the relevant authority has to consider whether the article or commodity in question falls within one entry or another. It is necessary for the relevant authority to determine first the nature, type and form of the article or commodity with which it is concerned and then determine the appropriate entry in which the article or commodity in question can fall. The argument of Mr. Kaji that we must first look to the entries in Schedule A which exempts the goods from taxation irrespective of the entries in the other schedules, cannot be accepted in view of the aforesaid scheme of the Act. The authority under the Act has to determine whether the article is subject to tax or not and if taxable, at what rate after considering the nature, type and form of the article. The authority has to determine which is the appropriate entry concerning the article with which it is concerned. It may be that there may be two entries, one general and the other specific and, in such a case, the ordinary rule of construction that a general entry must give way to a specific entry is to be followed. The authority has to see that if two entries are apparently in conflict with one another, an attempt must be made to construe them harmoniously and not to treat them as repugnant to each other. This is the principle which has been laid down in Pravin's case ([1964] 15 S.T.C. 478.), with which we agree. Section 5 of the Act cannot be construed to mean that once the commodity or article is taken out of the entries in Schedule A because the same is governed by a specific entry contained in other schedules still the turnover in respect of the article or commodity has to be given an immunity from the liability to pay tax. The non obstante clause in section 5 may cover a case when the article is covered by any entry in the schedules other than Schedule A and the Legislature or the State Government thinks it just and proper to provide an exemption from payment of tax for a specific period in respect of the article. The facts of Pravin's case ([1964] 15 S.T.C. 478.) are that the assessee having purchased takas of malmal and voil cloth and, after cutting out 5 yards pieces and 3 yards pieces from them, superimposed embroidery work on those pieces and sold the five yards pieces as saris and 3 yards pieces as ladies' underwear. Entry 15 of Schedule A to the Act defined cotton fabrics as they are defined in item No. 19 of the First Schedule to the Central Excises and Salt Act, 1944. Entry 3(i) in Schedule E provided that saris embroidered or otherwise decorated and sold at a price not exceeding Rs. 12 per piece were liable to pay tax at a certain rate. There was an exemption to this entry which provided that a sari decorated in the process of its weaving should not be deemed to be a decorated sari for the purpose of this entry. The question which arose before the court was whether 5 yards pieces and 3 yards pieces of malmal and voil cloth fall within entry 15 of Schedule A or entry 3(i) of Schedule E Section 5 of the Act also came for interpretation of the court. While considering the said question, the court observed as follows :
'The question that falls for our determination is whether after the dealer cuts out five yards pieces from the takas of malmal and voil, and has embroidery superimposed upon them for the purpose of selling those pieces as embroidered saris, such articles can still be said to be cotton fabrics within the meaning of entry 15 of Schedule A. The contention of Mr. Modi was that such sari pieces would still be cotton fabrics within the meaning of entry 15 of Schedule A and the mere fact that the dealer gets them embroidered would not make any difference as they would still retain the characteristics of cotton fabrics and, therefore, section 5(1) would be applicable to such goods. Entry 3 in Schedule E specifically deals with saris embroidered or otherwise decorated and provides different rates of sales tax, depending upon the price at which they are sold per piece. The explanation to the entry provides that a sari decorated during the process of weaving shall not be a decorated sari for the purpose of this entry. The explanation to this entry clearly shows a distinction between saris which are decorated during the course of weaving and those which are decorated after the process of their manufacture is completed, that is to say, saris upon which, after their manufacture is completed, some decoration through an additional process distinct from the process of manufacture is superimposed. Presumably, the former, manufactured from cotton, would be classified as cotton fabrics and would fall within entry 15 of Schedule A, but the letter are specifically intended to fall within entry 3 of Schedule E. Entry 3 of Schedule E therefore itself shows the legislative intent to treat the two kinds of saris differently; those that are embroidered or otherwise decorated within the meaning of that entry and those that are not. Though, therefore, cotton saris may, in ordinary parlance, be called cotton fabrics, if such saris are saris embroidered or decorated, provided such embroidery or decoration is superimposed upon them after the process of their manufacture is over, they would be dealt with differently and the sales thereof are subjected to sales tax under section 10 and entry 3 of Schedule E to the Act. The basis of distinction between the two types of articles, that is, those that fall under entry 15 of Schedule A and those that fall under entry 3 of Schedule E is that, in the latter class of articles, their manufacture as cotton fabrics is complete and the process of embroidering them is done after their manufacture as cotton fabrics is over, so as to make them embroidered saris and it is that which enables the dealer to sell them not as cotton fabrics but as embroidered saris. It is this additional process which makes embroidered saris, a process which is neither incidental nor ancillary to their manufacture as cotton fabrics and renders them subject to entry 3 in Schedule E to the Act.
Entry 15 in Schedule A to the Act exempting cotton fabrics of all varieties is a general entry, while entry 3 in Schedule E is a specific entry dealing only with specific kinds of goods. It is a well-settled rule of construction that where a statute contains both a general provision as well as a specific provision, the latter must prevail. Furthermore, where there are two provisions apparently in conflict with one another, the attempt, while construing them, must be to bring about harmony between the two and not to treat them as repugnant to each other. Upon these two principles of construction also, we must hold that the pieces of malmal or voil cloth over which embroidery is superimposed after the process of their manufacture is completed and are sold as embroidered saris, would not be cotton fabrics within the meaning of item 19 in the First Schedule to the Central Excise Act.'
9. This case is a direct authority on the question which arises before us. We will, therefore, examine the arguments of Mr. Kaji whether there is any conflict between the ratio laid down in Umedram's case ([1965] 16 S.T.C. 1059.) and Pravin's case ([1964] 15 S.T.C. 478.). So far as Umedram's case ([1965] 16 S.T.C. 1059.) is concerned, two questions were referred to the court and they were in the following terms :
'(1) Whether indori borders containing more than 60 per cent of pure silk and woven on handloom out of silk, art silk and jari threads are handloom cloth within the meaning of entry 29 in Schedule A to the Bombay Sales Tax Act, 1959
(2) If the answer to question (1) above is in the affirmative, whether sale of such borders can be taxed as sale of goods falling within the ambit of entry 9 of Schedule E to the Bombay Sales Tax Act, 1959 ?'
10. The court made it clear that the frame of the question indicated that the second question would arise for consideration if only the first question was answered in favour of the assessees. At the end of their judgment, the learned Judges observed that in view of the answer to the first question, which was answered in the negative, the second question did not arise for consideration. It is true that the observations made in the said decision and cited hereinbefore do support Mr. Kaji's aforesaid contention. The observations are mere obiter dicta. In fact, the second question which is relevant for our purposes did not arise for consideration before the court and was in fact not considered by it. The aforesaid observations, therefore, do not lay down any binding law. The decision in Pravin's case ([1964] 15 S.T.C. 478.), which is decided by the same Bench, is on all fours and lays down that all the entries in the various schedules must be looked at and the authority should find out which is the appropriate entry relating to the article which is sought to be taxed. The said decision further lays down the principle that if there is apparently any conflict between a general provision and a special provision, attempt must be made to construe them harmoniously and a general entry must give way to a special entry. In our view, the observations made in the decision in Umedram's case ([1965] 16 S.T.C. 1059.) are mere obiter dicta. They do not lay down any binding law. It is not, therefore, necessary to refer this matter to a larger Bench as was contended by Mr. Kaji.
11. This brings us to the merits of the case. Entry 41 in Schedule A is a general entry. It is an entry relating to rayon and artificial silk fabrics. It includes within its form those articles which are manufactured from rayon or artificial silk either wholly or partly. If during the process of manufacturing of rayon or artificial silk saris some decorations or embroidering is made, then the article would not come out of the said entry. This is so because the saris thus manufactured would not be governed by entry 11A or 19 of Schedule E because of the explanation enacted to those entries. What has happened in the present case is that the artificial silk saris were first produced. The production of the said article was complete. Thereafter the process of attaching zalar was employed so as to make them embroidered or decorated saris. The legislature treats the two kinds of saris differently, namely, the sari which is produced by a process of manufacture and the sari to which the zalar is superimposed. The additional process of attaching zalar to the saris is an independent process and not ancillary to the manufacturing of the art silk saris. The article thus produced by the process of attaching zalar is a different article and known in common parlance as embroidered or decorated saris. It is a different article because something is superimposed upon it by an independent process. Such embroidered or decorated saris are covered by entries 11A and 19 of Schedule E. They go out of entry 41 of Schedule A because by the independent process of attaching zalar they are converted into a different article, namely, embroidered or decorated saris which are themselves marketable goods. The consequence is that embroidered or decorated saris are not covered by entry 41 of Schedule A, but are governed by entries 11A and 19 of Schedule E and the first question which has been referred to us, therefore, is answered in the negative.
12. We will now come to the second question which has been referred to us. Sub-section (7) of section 14 of the Central Sales Tax Act, 1956, refers to rayon and artificial silk fabrics and defines the said article. It adopts or incorporates the definition of the article as given in item 22 of the First Schedule to the Central Excises and Salt Act, 1944. Item 22 of the First Schedule to the Central Excises and Salt Act, 1944, defines rayon and artificial silk fabrics as including all varieties of fabrics manufactured either wholly or partly from rayon or artificial silk. It then gives the kinds of the fabrics which are excluded from the said entry. This means that rayon or artificial silk fabrics which are manufactured and which are not excluded by the said entry are rayon and artificial silk articles. In the present case, undisputedly, after the finished products, namely, artificial silk saris, there is further an additional process which has been employed and the process is one of attaching the zalars. As a result of this process, a new article known in common parlance as embroidered or decorated saris is produced. That being so, the new article comes out of the definition given in sub-section (7) of section 14 of the Central Sales Tax Act. Therefore, the said article cannot be said to be artificial silk fabrics within the meaning of sub-section (7) of section 14 of the Central Sales Tax Act. The result is that we answer the second question in the negative. The third question does not survive for our consideration and it is not necessary to answer the same.
13. Therefore, we answer the questions referred to us as follows :
(1) On the facts and circumstances of the case, the sales of saris of art silk fabrics to which zalars, that is, borders are attached by stitching them to saris after the process of manufacture are not covered by entry 41 of Schedule A and, therefore, are not exempted from tax under sub-section (1) of section 5 of the Bombay Sales Tax Act, 1959.
(2) On the facts and in the circumstances of the case, saris of art silk fabrics to which zalars, that is, borders are attached by stitching them to saris, are not art silk fabrics within the meaning of sub-section (7) of section 14 of the Central Sales Tax Act, 1956.
(3) The question does not arise for our consideration as the second question is decided in the negative.
14. There shall be no order as to costs of this proceeding.
15. Reference answered accordingly.