{"id":88126,"date":"1984-09-21T00:00:00","date_gmt":"1984-09-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gulabchand-harekchand-and-anr-vs-state-of-west-bengal-and-ors-on-21-september-1984"},"modified":"2016-01-14T05:11:30","modified_gmt":"2016-01-13T23:41:30","slug":"gulabchand-harekchand-and-anr-vs-state-of-west-bengal-and-ors-on-21-september-1984","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gulabchand-harekchand-and-anr-vs-state-of-west-bengal-and-ors-on-21-september-1984","title":{"rendered":"Gulabchand Harekchand And Anr. vs State Of West Bengal And Ors. on 21 September, 1984"},"content":{"rendered":"
Calcutta High Court<\/div>\n
Gulabchand Harekchand And Anr. vs State Of West Bengal And Ors. on 21 September, 1984<\/div>\n
Equivalent citations: 1985 (5) ECC 235, 1986 (23) ELT 306 Cal<\/div>\n
Author: P K Majumdar<\/div>\n
Bench: P K Majumdar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Prabir Kumar Majumdar, J.<\/p>\n
1. This is an application under Article 226 of the Constitution of India. In this application the petitioners ask for a writ of mandamus or prohibition prohibiting the respondents from making any assessment or collecting any tax or further tax on “gudaku” or “guraku” packed or unpacked under the Bengal Finance (Sales Tax) Act, 1941 and the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972. The petitioners also pray for a writ of or in the nature of mandamus calling upon the respondents to make refund of taxes already assessed and collected in respect of “gudaku” or “guraku” sold during the periods 4 quarters ended Chait Sudi 8, 2028, 2029, 2030 and 2031 Sambat year and subsequent periods.\n<\/p>\n
2.    The case of the petitioners is that  petitioner No. 1 is a dealer within the meaning of the Bengal Finance  (Sales Tax) Act, 1941  (hereinafter referred to as the Sales Tax Act).  The petitioners have been dealing in tobacco brought from outside the State of West Bengal,  that is to say, tobacco leaf and tobacco paste popularly known as  “gudaku” or “guraku” for use in teeth and also for hookah.\n<\/p>\n
3.    According to the petitioners, under Item 18 of Schedule I to the Sales Tax Act, tobacco for hookah in any form and under Rule 3(28) of the  Bengal Sales Tax Rules, 1941 (hereinafter referred as the “Rules”) the sale of tobacco as defined  under  the  Central  Excises and Salt Act, 1944 are deductible from gross turnover in calculating taxable turnover.    Therefore,  such gudaku being a tobacco product cannot be subject to tax, either under the Sales Tax Act as also under  the Taxes  on  Entry  of Goods into Calcutta Metropolitan Area Act, 1972 (hereinafter referred to as the Entry Tax Act).\n<\/p>\n
4.    Mr.  Gopal Chakraborty,  the learned Senior Advocate appearing for the petitioners,  contends that  “gudaku”  manufactured out of tabacco and having as its constituents  lime,  molasses,  gerumati  and  some essence to give it flavour  is  covered  by the expression  “tobacco”.    He further argues that “gudaku” being wholly or essentially manufactured out of tobacco, which is an exempted item both under the Sales Tax Act and  the  Entry Tax Act,  is  not liable to  be  assessed to  tax.   As such,  the  said item cannot be taken into consideration in calculating taxable turnover.\n<\/p>\n
5.    Mr.  Chakraborty draws my attention to Item 18 of Schedule I to the said Sales Tax Act and Rule 3(28)(b) of the Bengal Sales Tax Rules, 1941.    He refers also Section 5 of the said Sales Tax Act which provides,  inter alia,  that no tax shall be payable under this Act on the sale of goods specified in the first column of Schedule I,   subject to the conditions “and  exceptions, if any, set out in the corresponding entry in the  second column of the said Schedule I.    Item 18 of the said  Schedule I to  the said  Sales Tax Act mentions  tobacco  for hookah (that is to say tobacco  paste ready for  use in hookah).    Rule 3 of the said Bengal Sales Tax Rules, 1941 provides, inter alia, that in calculating his taxable turnover a dealer liable to pay tax under Section 4 or 8(3) of the  Act (the said Sales Tax Act) may deduct from his gross turnover the various items set out under Rule 3.    Rule 3(28) which says that in this Sub-clause the expression “tobacco” has the same meaning as attributed to it in  the  First  Schedule to  the  Central Excises  and  Salt Act, 1944 so far relevant for this application runs thus : “Tobacco means any form of tobacco  whether  manufactured  or not,  and  includes the leaf,  stalks and  stems  of tobacco plant, but does not include any part of a tobacco plant while still attached to the earth.”\n<\/p>\n
6.    Mr. Chakraborty,  learned  Senior   Advocate,   relying   on the  said provisions referred to above, argues that definition of “tobacco” has not been changed till today in the said  Sales Tax Act.    As tobacco and its products are not taxable under the said Sales Tax Act and also the Rules framed thereunder, the gudaku being essentially a tobacco product cannot be brought to tax as sought to be done by the respondents-sales tax authorities in respect of the said four assessment years referred to in the petition.\n<\/p>\n
7.    It is also his argument  that  the  constituents  of hookah gudaku are not very much different from the gudaku used for cleansing teeth.\n<\/p>\n
8.    He also  submits relying on  certain  decisions  which I will refer to presently, that gudaku used for smoking by  hookah comes within the meaning of manufactured tobacco.   Therefore,  he submits,  there is  no  reason why gudaku used for teeth would not be construed as tobacco.\n<\/p>\n
9.    Mr. Chakraborty further  submits that under the West Bengal Sales Tax Act, 1954 tobacco for hookah or teeth gums are not taxable  under the said Act.    He, however, points out that under  Notification No. 3123-FT dated 15th July,   1975  the  tooth-paste\/dentifrice has   been   brought to  tax.    But according to  Mr. Chakraborty,  the:’ tobacco for hookah or teeth gums could never be brought within the meaning of tooth-paste  and  dentifrice.    It is his submission that gudaku which may be used for cleansing teeth cannot be toothpaste or dentifrice within the meaning of the said West Bengal Sales Tax Act.\n<\/p>\n
10.    It is the case of the  petitioners that the ingredients which constitute a tooth-paste are absent in gudaku.    The  petitioners state that according to the specification for tooth-paste as prescribed by the Indian Standards Institution the  materials  used  in  the manufacture of tooth-paste fall into the following categories-(a) polishing agents,   (b) soap  or detergent,   (c) humectant,  i.e. glycerol or sorbitol, (d) binding agent,  (e) astrigent, (f) deodorant, (g) water and (h) permitted colours, preservatives, flavour and sweetening agents.\n<\/p>\n
11.    Mr. Chakraborty  submits that the constituents of tooth-paste are not present in gudaku.    Therefore,  according to Mr. Chakraborty, occasional use of gudaku for cleansing teeth cannot  make such  thing a  tooth-paste or dentifrice.\n \n\n12.    Mr. Chakraborty in  support  of his contention that gudaku cannot be subject to tax places strong reliance on a decision of the Orissa High Court in  the  case  of State of Orissa v.  Samsuddin Akbar Khan & Co., reported in [1975] 35 S.T.C. 179.\n \n\n13.    This is a case arising out of a reference  under the  Orissa Sales Tax Act.   The question raised in the said reference was whether gudaku was covered by the expression \"tobacco\" and exempted  from tax  under  the Orissa Sales Tax Act.    The  Orissa  High Court after reviewing certain authorities came to the conclusion that gudaku came  within  the  definition of \"tobacco\"  and as such was tax-free.\n \n\n14.    The learned counsel for the petitioners points out in this connection that the  petitioners  have been  purchasing the  very same product, namely, gudaku from Messrs  Samsuddin Akbar Khan & Co.,  a dealer in  Orissa,  in whose case the said decision was rendered by the Orissa High Court.\n \n\n15.    He further  submits that the petitioners' claim for exemption under Rule 3(28)(b) of the Bengal Sales Tax Rules was allowed by the Commercial Tax  Officer, Rajakatra Charge relying on the said decision of the Orissa High Court.   In the assessment order being Annexure B to the petition, in respect of the year Chait Sudi 8, 2031.    The  Commercial Tax Officer following the said Orissa case also made an order for the refund of the tax already paid  by the petitioner. It is the contention of the petitioners that they paid taxes on gudaku both under the said Sales Tax Act and the said Entry Tax Act under a mistaken concept of law, such mistake was detected in September, 1976.\n \n\n<\/pre>\n
16.    Mr. Chakraborty also cites a decision of the  Gujarat High Court in the case of Dar Laboratories v. State of Gujarat [1968] 22 S.T.C. 160.   In this case the  question came up for consideration under a reference under the Bombay Sales Tax Act as to whether  “Ipco-dental creamy snuff” was covered by entry 49 in Schedule A to  the Bombay  Sales Tax Act which  exempted “tobacco” as defined in the First Schedule to the  Central Excises and Salt Act, 1944 from the levy of sales tax.\n<\/p>\n
17.     The Gujarat High Court observed  that the expression “any form of tobacco, whether cured or not and whether  manufactured or not” as given in the definition of “tobacco” in the Central Excises and Salt Act, 1944 should be given a liberal  interpretation.    Giving such interpretation the Gujarat High Court held in that case that the said “Ipco-dental creamy snuff” was tobacco and was therefore exempt from sales tax.\n<\/p>\n
18.    Regarding    taxability    of   gudaku   under   the   said   Entry   Act, Mr. Chakraborty’s contention is that  “gudaku” has been placed in Item 41(c) of the Schedule to  the  said  Entry Tax  Act which reads : “Tooth-paste or powder, guraku”.   The contention of Mr. Chakraborty is that tobacco is not specified article in the said Schedule and is not liable to tax and gudaku being a tobacco product should be exempted from the levy of tax.   He also  submits that gudaku not being a tooth-paste nor a tooth-powder as understood in the trade  cannot be  placed in the category of tooth-paste or tooth-powder under Item 41(c) of the said Schedule.\n<\/p>\n
19.    Mr. S.N. Dutta, the learned Advocate appearing for the respondents, strongly contests the contentions of Mr. Chakraborty.\n<\/p>\n
20.    Mr. Dutta  contends that gudaku is not essentially  or  wholly a tobacco product. It is given a tobacco flavour and essential elements of gudaku are “gerumati” and molasses.    Just by  giving  a  flavour  of tobacco or some insignificant quantity of tobacco to it, it cannot become tobacco in “any form”. He further contends that gudaku in West Bengal is specially used as toothpaste or dentifrice, and as such this is not exempted  under either the Sales Tax Act or the Entry Tax Act.\n<\/p>\n
21.    It is also his argument that whether an essential or all the ingredients of tooth-paste are present in gudaku or not can only be investigated by proper authorities upon relevant materials and evidence.  He submits that this is highly disputed question of fact, and this Court exercising jurisdiction under Article 226 of the Constitution should not take upon itself the burden of investigation of this fact in this proceeding.    He further submits that the petitioners’ claim for exemption under Rule 3(28) of the Bengal Sales Tax Rules was allowed by the concerned Commercial Tax Officer under a mistaken impression  that the said decision of the Orissa High Court was binding upon him.    He has  drawn my attention to paragraph 12 of the affidavit affirmed by the concerned Commercial Tax Officer in which he states that he was misled to think that he was to obey the said decision of the Orissa High Court.   He also states that the exemption resulted in  excess  payment,  and therefore,  the matter was  referred to the Assistant Commissioner for sanction of refund.    But since this question being sub-judice the said Assistant Commissioner kept the matter in abeyance.\n<\/p>\n
22.    Referring to the taxability of gudaku under the said Entry Tax Act, Mr. Dutta submits that under the  said Entry Tax Act the taxes are levied on the items specified in the Schedule in the said Act.    Gudaku being a specified item under Item 41(c) of the said Schedule is liable to be taxed, moreover even if gudaku is taken to be a tobacco it is liable to tax being a specified item.\n<\/p>\n
23.    The next argument of Mr. Dutta is that both the said Acts provide complete machinery for adjudication of the  question involved in this application, and such remedy as provided in the relevant statutes should be availed of. Moreover, it is the contention of the petitioners in the writ petition that it is the statutory obligation of the respondents to suo motu revise the assessment or dispose of the application for revision. Mr. Dutta submits that the petitioners in fact have made application for suo motu revision to the relevant authorities being Annexure D to the petition at pages 45 and 58. In that view of the matter, he submits that this writ petition is not maintainable.\n<\/p>\n
24.    Mr. Dutta cites a  decision  of the Supreme Court in the case of Titaghur Paper Mills Co. Ltd. v. State of Orissa<\/a> . The Supreme Court observes in this case that 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 should be availed of.   To this  submission  of Mr. Dutta, Mr. Chakraborty argues in reply that in the present case it is a question which concerns the construction of Item 19 of the First Schedule to the Central Excises and Salt Act,   1944  and also Rule 3(28) of the Bengal Sales Tax Rules, and other relevant provisions of the statutes. It is also his submission that no further investigation as to any fact need be made in this proceeding, and as such this writ petition can be decided on merits having regard to the construction of the relevant provisions of law involved in this application.\n<\/p>\n
25.    In support of his said contention  Mr. Chakraborty cites a decision of the Supreme Court in the case of Delhi Cloth & General Mills Co. Ltd.  v. State of Rajasthan  and<\/a> a decision of this Court in the case  of Saifuddin Ebrahimbhai Vadnagarwalla v. Assistant Commissioner reported in [1976] 38 S.T.C. 463.\n<\/p>\n
26.    I have carefully considered the rival submissions of the learned Advocates appearing for the respective parties.   There is a considerable force in the contention of Mr. Chakraborty,  learned Senior Advocate appearing for the petitioners.    The expression “tobacco” as defined in Item 19  of the  First Schedule to the Central  Excises  and Salt Act, 1944 has been incorporated in the definition of “tobacco” as provided under Rule 3(28)(b) of the Bengal Sales Tax Rules, and therefore whatever be the meaning of tobacco in the said Central Act of 1944, the same should attach to the definition of “tobacco” as provided in the said Bengal Sales Tax Rules.\n<\/p>\n
27.    In my view, definition of “tobacco” in Item 19 of the Central Excises and Salt Act, 1944 is very wide and comprehensive.   It includes “any form of tobacco whether cured or uncured and whether manufactured or not”.\n<\/p>\n
28.    Respectfully agreeing with the  decision of the Orissa High Court in case of State of Orissa v. Samsuddin Akbar Khan & Co. [1975] 35 S.T.C. 179, f am of the view that gudaku is manufactured out of tobacco and  is  covered by the expression “tobacco” as defined in Rule 3(28)(b) of the Bengal Sales Tax Rules read with Item 19 of the Central Excises and Salt Act, 1944.\n<\/p>\n
29.    I also respectfully accept  the view of the Gujarat High Court in the case reported  in B. Dar Laboratories v. State of Gujarat [1968] 22 S.T.C. 160 that the Legislature has intended to give wide meaning to the expression tobacco “of any form”, cured or uncured, manufactured or not.\n<\/p>\n
30.    I am of opinion that gudaku has not lost its essential character, just because some gemmati or molasses are some of the constituent parts.   It is not in dispute that gudaku is manufactured out of tobacco, and as such a tobacco product.    This very same commodity may be used for smoking by hookah and also may be used for cleansing teeth.   It cannot be said that gudaku if used for cleansing teeth will lose its character as  tobacco.   Taking into account the ingredients of gudaku, it cannot be said that the people familiar with tooth-paste or tooth-powder will take it as tooth-paste or tooth-powder,   It must be construed in the sense in which they are understood in the trade by the dealer and the consumer. I cannot imagine that gudaku is understood in that trade by the dealer or the consumer as tooth-paste and nothing but tooth-paste. There are no materials placed before me in consideration of which I can come to a conclusion that gudaku can be taken as toothpaste or tooth-powder. Mr. Chakraborty submits, and in my view rightly, that occasional use of gudaku for cleansing teeth cannot make it a tooth-paste or dentifrice. In this particular case the test is whether gudaku is covered by the expression of “tobacco” as denned in Rule 3(28)(b) read with explanation of the Bengal Sales Tax Rules or not. If it is found that it comes within the definition of “tobacco”, then this item is entitled to exemption from the levy of tax.\n<\/p>\n
31.    The Orissa  High  Court in the case of State of Orissa v. Samsuddin Akbar Khan & Co., (1975) 35 S.T.C. 179 has considered this question whether gudaku is tobacco or not and came to this conclusion that gudaku came within the definition of \"tobacco\".    I respectfully agree with reasoning of the Orissa High Court and do not see any reason to take a different view.\n \n\n32.    I also accept the contention of Mr. Chakraborty that no  investigation of any disputed  fact need be made in  this proceeding.    The question involved in this  petition can be decided on the constructions of the relevant provision of the statutes.\n \n\n33.    Now I will consider whether  gudaku, being a specified Item of 41(c) of the Schedule to the said Entry Tax Act,  is liable to tax under the said Entry Tax Act.    Mr. Chakraborty contends that gudaku cannot be taken as a toothpaste or tooth-powder  and it is not understood as such  in common parlance. Therefore, if it is not a tooth-paste or tooth-powder or the like, then it cannot be placed in that category under Item 41 (c) of that Schedule.   In this category such thing can  be placed which will have no other use but as tooth-paste or powder.    His submission is that if it is not considered as tooth-paste or tooth-powder or the like, then it cannot be subject to tax only because it is a specified item under the said Item 41 (c).    I accept this contention of Mr. Chakraborty. Tooth-paste  or  tooth-powder cannot  have any other use except for cleansing teeth.    In my opinion gudaku is not such a commodity.    It may have different uses.\n \n\n34.    I will now consider the objection of Mr. Dutta as to  the  maintainability of the writ petition.    He  contends  that the petitioners cannot maintain this application in view of their not having availed themselves  of the remedies provided  for  in the  statute.   The   question involved in this petition is as to whether the petitioners' claim for exemption can be sustained on the construction of the relevant provisions of law involved.    If gudaku is covered by the expression  \"tobacco\",  it is exempted from tax and there is no jurisdiction in the tax authorities to assess the petitioners on its  turnover.   The  question  is, therefore,  in the nature of a jurisdictional fact.    It is now well settled that whether a jurisdictional fact has been  rightly decided or not is a question that is open for examination by the court in its writ jurisdiction.   I will, therefore, hold that this writ petition is maintainable.\n \n\n35.    In  the premises, I hold that tax cannot be levied on gudaku as this is covered by the expression \"tobacco\".    The   petitioners' claim for exemption under Rule 3(28)(b) of the Bengal Sales Tax Rules should be allowed.   I also hold  that gudaku,  not  being a tooth-paste or tooth-powder, is not subject to the levy of tax under the said West Bengal Sales Tax Act and also under the said Entry Tax Act.\n \n\n36.    For the reasons aforesaid, this application succeeds. The rule is made absolute.\n \n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Calcutta High Court Gulabchand Harekchand And Anr. vs State Of West Bengal And Ors. on 21 September, 1984 Equivalent citations: 1985 (5) ECC 235, 1986 (23) ELT 306 Cal Author: P K Majumdar Bench: P K Majumdar JUDGMENT Prabir Kumar Majumdar, J. 1. This is an application under Article 226 of the Constitution of India. 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