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TMI Blog1968 (7) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... tment notification No. F. 5 (139) E. & T./57, dated the 19th December, 1958, the State Government being of the opinion that it is expedient in the public interest to do so, hereby exempts from tax the sale of bardana (old or new or being received as container) except on the first point at the hands of an importer in the series of sales in the State. By order of the Governor, (Sd). G.S. PUROHIT, Secretary to Government." The petitioner's case is that it was granted a certificate of exemption on the basis of its being a commission agent in the financial year 1961-62. It is also stated in the petition that the petitioner's firm paid the necessary renewal fees for the financial years 1962-63, 1963-64, 1964-65 and 1965-66 and the exemption certificate thus continued to be in force till the end of the financial year 1965-66. The petitioner has further submitted that the Commercial Tax Officer, Jaipur City, respondent No. 2, assessed it to tax for the years 1961-62 and 1962-63 by assessment orders dated 6th August, 1963. The petitioner claimed exemption on the sale of gunny bags, but it was not granted. It then filed an appeal to the Deputy Commissioner, Excise and Taxation (Appeals), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that case, while dealing with the validity of the notification issued by the Madhya Bharat Government regarding levy of sales tax on tobacco leaves, manufactured tobacco and tobacco used for bidi manufacturing, their Lordships of the Supreme Court held that even though it was the sale in Madhya Bharat of the imported tobacco that created the liability to tax and not the import by itself, the trade and commerce as between Madhya Bharat and other parts of India was directly impeded by the tax and it therefore contravened the provisions of Article 301 of the Constitution. It was further held that tobacco manufactured or produced in Madhya Bharat had not been subjected to the tax which the importers of tobacco from other States had to pay on its sale by them and therefore the tax was not within the saving provisions of Article 304(a) of the Constitution. It was also observed that even though it was the sale in Madhya Bharat of the imported goods that created the liability to tax and not the import by itself, yet the trade and commerce as between Madhya Bharat and other parts of India was directly impeded by this tax. On the basis of the above-cited judgment of their Lordships of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anda Vishal Sabdh Sagar as under:Thus, there is no escape from the conclusion that the term "bardana" used in the impugned notification is not equivalent to "gunny bags" only but it refers to all types of containers including gunny bags. It is not the case of the State that none of the several types of "bardana" is produced or manufactured in Rajasthan. For the purpose of judging the validity of tax on the sale of "bardana" we cannot make any distinction between various types of "bardana" and if no tax is levied on one or more types of "bardana" produced or manufactured in Rajasthan, it cannot be levied on the sale of any type of "bardana" imported into Rajasthan. It is, in our opinion, not permissible to the State to pick out one type of "bardana" and justify the levy of tax on the ground that the "bardana" of that type is not produced or manufactured in Rajasthan and, therefore, there is no discrimination. If that was the intention of the Government, there was nothing to prevent it from making specific mention of the particular type of "bardana" in the notification which it wanted to tax. Since this has not been done, we do not see any justification in this argument advanced on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deputy Government Advocate, lastly, placed reliance on Shri Durga Rice and Baba Oil Mills Co. and Others v. State of Andhra Pradesh and Others[1964] 15 S.T C. 676., to show that the tax in question could be saved by Article 304(b) of the Constitution. In that case, the constitutionality of the Andhra Pradesh General Sales Tax (Second Amendment) Act (No. 2 of 1959) was challenged before the Andhra Pradesh High Court. It appears that the impugned Act amended items 5 to 6 of Schedule III (paddy, rice) to the Andhra Pradesh General Sales Tax Act, 1957, enhancing the sales tax payable thereon from three naya paise to four naya paise in the rupee and the validity of the Act was questioned on the ground that it operated as a restriction on the freedom of trade contemplated by Part XIII of the Constitution. The learned Judges of the Andhra Pradesh High Court held that the impugned Act merely increased the rate of tax payable on certain commodities and did not relate to inter-State trade or commerce and consequently the proviso to Article 304(b) of the Constitution was not attracted. We may state, at once, that this authority has no relevance whatever to the question at issue before us. Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and also to refund the amount paid as tax by the petitioner." The prayer for refund has been resisted by the learned Deputy Government Advocate on the ground that no details of payment as regards the impugned tax have been given by the petitioner in its writ petition and, therefore, the Government had no opportunity to meet the case for refund. It is, therefore, urged on behalf of the State that the present case is not a fit one in which a writ of mandamus should be issued for repayment of the amount of the impugned tax alleged to have been paid by the petitioner. The objection raised by the learned Deputy Government Advocate on this score is not without force, and we are of opinion that in the facts and circumstances of the present case, we are unable to exercise our discretion in favour of the petitioner by ordering repayment of money which may have been realised by the Government in lieu of the impugned tax and would leave it to the petitioner to pursue an appropriate remedy either under the Rajasthan Sales Tax Act or under the ordinary civil law for repayment of the amount. The result is that we allow this writ petition in part and hold that the assessment of sales tax on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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