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TMI Blog1959 (10) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion which Mr. Mehta for the appellants challenges on this appeal. 3.. Before I refer to the Bombay Sales Tax Laws (Special Exemptions) Act, 1957, it would be convenient to refer to Schedule B to the Bombay Sales Tax Act, 1953. Five entries mentioned in that schedule may be referred to. The entry which deals with hessian is entry 24-A, and the entry relates to gunny bags and hessian, and in respect of hessian a rate of sales tax and a rate of general sales tax has been set out in the appropriate columns. Now, if the matter had rested with entry 24-A, there can be no doubt that hessian is subject to the payment of sales tax under the Bombay Sales Tax Act, 1953, but the contention on behalf of the appellants is that the sale of hessian is saved by virtue of Bombay Act XL of 1957, i.e., the Bombay Sales Tax Laws (Special Exemptions) Act, 1957. Before I refer to the relevant provisions of that Act it would be necessary to go back to four other entries set out in Schedule B to the Bombay Sales Tax Act. Entry 10 relates to cloth woven on handlooms. Entry 11 relates to coarse and medium cotton cloth made in mills or woven on powerlooms. Entry 31 relates to cloth including saris, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31 and 79, but hessian has been referred to in entry 24A as a distinct subject divorced from the classes of goods set out in entries 10, 11, 31 and 79. It is reasonable to suppose that hessian is something different from what is connoted by entries 10, 11, 31 and 79. Mr. Mehta, however strongly relies upon entry I in Schedule I to the Bombay Sales Tax Laws (Special Exemptions) Act, 1957, which, for the sake of convenience, will be referred to in this judgment as the Exemptions Act. This Act received the assent of the Governor on the 14th December, 1957. It deals with two classes of goods one of which is what is called designated goods and the other is what is called scheduled goods. Section 2(3) defines designated goods as meaning the goods specified in Schedule II, and scheduled goods is defined in section 2(7) as meaning the goods specified in Schedule I. When one turns to Schedule 1, it refers broadly to three categories of goods: (1) All varieties of cloth, (2) sugar, and (3) tobacco, and Schedule II which deals with designated goods relates to any variety of handloom cloth, excluding pure silk cloth. Mr. Mehta's contention is that hessian would fall within item No. 1 in Sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (g) of the Act, as it stood before the amendment by Bihar Act VI of 1949, will not cover the present case. Section 2(g) of the Bihar Sales Tax Act as it stood on the material date states as follows: "2 (g) 'Sale' means, with all its grammatical variations and cognate expressions, any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods involved in the execution of contract but does not include a mortgage, hypothecation, charge or pledge: Provided that a transfer of goods on hire purchase or other instal- ment system of payment shall, notwithstanding the fact that the seller retains a title to any goods as security for payment of the price, be deemed to be a sale: Provided further that notwithstanding anything to the contrary in the Indian Sale of Goods Act, 1930 (III of 1930) the sale of any goods which are actually in Bihar at the time when, in respect thereof, the contract of sale as defined in section 4 of that Act is made, shall, wherever the said contract of sale is made, be deemed for the purposes of this Act to have been made in Bihar." But such an argument does not appear to have been advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. When once it is realised that the Act primarily intends to deal with two classes of goods in relation to one of which additional duty of excise was leviable and such classes of goods only were excluded from the operation of the Bombay Sales Tax Act, it is difficult to understand the argument that hessian which is not admittedly subject to the payment of additional duty is still a class of goods falling within item No. 1 of Schedule I to the Exemptions Act. Section 4(1) of the Bombay Sales Tax Laws (Special Exemptions) Act, 1957, provides that notwithstanding anything contained in the relevant sales tax law or any rules, notifications or orders made or issued thereunder, no tax shall be payable under the relevant sales tax law on the sale or purchase of any scheduled goods effected on and after the appointed day, and the expression "scheduled goods" is defined in section 2(7) as meaning goods specified in Schedule I. It is obvious that the operation of the Bombay Sales Tax Act was to be saved in those classes of goods in relation to which an additional duty of excise was leviable and that is perfectly clear when one turns to the Additional Duty of Excise (Goods of Special Import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law submitted by the Board of Revenue under section 25(1) of the Bihar Sales Tax Act also does not refer to section 2(g) of the Bihar Sales Tax Act. It is, therefore, not possible, in the circumstances, for us to permit learned counsel for the assessee to raise a new point of law for the first time during the hearing of this reference. Counsel on behalf of the assessee submitted that the question of law referred by the Board of Revenue may be suitably amended, but though the High Court has power of amending the question of law, it is not possible for us to do so in this case because an altogether new question is raised by learned counsel on behalf of the assessee and, further, the question was not agitated on behalf of the assessee before the Board of Revenue in revision. So far as the actual question referred by the Board of Revenue is concerned, it is conceded by learned counsel on behalf of the assessee that the question must be answered against the assessee and in favour of the State of Bihar, in view of the decision of this High Court in Tata's case [1956] 7 S.T.C. 158; A.I.R. 1956 Pat. 92. We, therefore, answer the first question referred by the Board of Revenue with regard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "18. Conditions subject to which a dealer may claim deduction from gross turnover on account of sale of goods to registered dealers.-A dealer who wishes to deduct from his gross turnover the amount of a cash sale to registered dealers shall produce, in respect of such a sale, the copy of the relevant cash memo, and a true declaration in writing by the purchasing dealer or by such responsible officer as may be authorised in writing in this behalf by such dealer that the goods in question are specified in the certificate of registration of such dealer and are required by such dealer either for use in the manufacture of any goods for sale or in the execution of any contract of for re-sale. " It is manifest that this rule referred only to current sales and the argument of the assessee was that there was inconsistency between rule 18 framed under the new Act and rule 36(2) framed under the old Act of 1944. It was submitted that in view of the provisions of sec- tion 32 of the new Act it must be held that rule 36(2) framed under the old Act ceased to have any operative force. Section 32 of Bihar Act XIX of 1947 is to the following effect: "32. Repeal and saving.-The Bihar Sales T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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