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TMI Blog1965 (2) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of tobacco as given in item 9 of the First Schedule to the Central Excises and Salt Act, 1944. I. So far as the Bengal Act is concerned, we are primarily concerned with the text of rule 3(28) of the Bengal Sales Tax Rules, 1941, which have been framed in exercise of the power conferred by section 26 of the Bengal Finance (Sales Tax) Act, 1941. The charging section in the Act of 1941 is section 5. Sub-section (1) of this section says that every dealer shall pay tax on his "taxable turnover" at a specified rate. "Taxable turnover" is a technical concept which is arrived at by allowing certain deductions from the gross turnover of a dealer during the assessment period. Gross turnover is the aggregate sale price of the dealer received during the period as defined in section 2(i). From this gross turnover the dealer is allowed to deduct several items, e.g.,"(a) the sale of goods which are declared tax-free under section 6; (b) such other sales as may be prescribed." It is with this second item of deduction, mentioned in sub-section 2(a)(vi), with which we are concerned. Since "prescribed" means as prescribed by the rules, we are brought to rule 3 which gives a list of items w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nmanufactured tobacco II. Manufactured tobacco (I) Cigars and cheroots of which the value Per hundred (i) exceeds Rs. 30 a hundred ......... Twelve rupees." It may be noticed that item No. 9 above contains two parts(a) the first part gives the meaning of the word "tobacco" and (b) the second part gives the rates of duty payable on certain species of "manufactured" and "unmanufactured" tobacco. For the meaning of the word "manufacture", we are to turn to the definition of that word in section 2(f) of the Act which says" '(f) manufacture' includes any process incidental or ancillary to the completion of a manufactured product; and (i) in relation to tobacco includes the preparation of cigarettes, cigars, cheroots, biris, cigarette or pipe of hookah tobacco, chewing tobacco or snuff." If the first part of item 9 is now read with the definition of manufacture, it would be evident that the meaning of tobacco under item 9 is that it would include all manufactured varieties of tobacco including snuff. Snuff is thus specifically included within the meaning of tobacco as given in item 9 of the Act of 1944, and, passing through the several links explained earlier, the result wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amely, that the whole of the item No. 9 has been incorporated were sound, the result would be that even the rates as prescribed by the second part of item No. 9 would have to be taken as printed on the face of rule 3(28), and this would lead us to an unmeaning jargon. There is, therefore, no escape from the conclusion that the Act of 1957, instead of defining the word "tobacco", has borrowed the first part of item No. 9, which gives the meaning of the word "tobacco" in another statute, namely, the Act of 1944, and the rule-making authority under the Bengal Finance (Sales Tax) Act has also followed that legislative practice. Secondly, it has been argued by Mr. Dutt that item 18 of the Schedule to the Bengal Act itself excepts the sale of "tobacco" and that item is-"tobacco for hookah, that is to say, tobacco-paste ready for use in hookah", and that, accordingly, if the rules made under the Act enlarges the meaning of the word "tobacco" beyond what is contained in item 18 as aforesaid, the rule must, to that extent, be held to be ultra vires. The fallacy involved in this argument is that the scope of rule 3 and the Schedule to the Bengal Act are different. The Schedule gives the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -in-opposition, it is not urged that the petitioner cannot claim exemption because the commodity sold by him has ceased to be "snuff" because other ingredients have been added to tobacco in the process of manufacture. The Commercial Tax Officer has sought to tax the sale of the petitioner's commodity as snuff, but on the wrong assumption of law, namely, that snuff does not come within the purview of rule 3(28) of the rules under the Bengal Act. Since, in my view, the Commercial Tax Officer is wrong in his interpretation of the taxing statute and the rules made thereunder, which exempt "snuff", his demand has become ultra vires and without jurisdiction and also unconstitutional in so far as it affects the petitioner's fundamental right under Article 19(1)(g) of the Constitution by a levy which is unwarranted by law. Petition No. 617 must therefore succeed and the impugned notices should be quashed; the opposite parties should be restrained from enforcing the impugned notices enclosed in annexures D and E to the petition. II. The position is not materially different in the other petition No. 618. In this case, the opposite parties have sought to apply section 9 of the Central S ..... 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