9911796707
TMI Blog1980 (4) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Sales Tax, U.P.[1974] 33 S.T.C. 381 (F.B.); 1973 U.P.T.C. 569 (F.B.). The Full Bench held that condensed milk is milk and so exempt under section 4(1) of the Sales Tax Act. It was not a milk product. The decision in the Nestle's Products' case(1) was overruled. The references which related to the years 1964-65 and 1965-66 were answered in favour of the assessee. For the assessment year 1967-68, Messrs. Indodan Milk Products Limited filed writ petition in this Court against the assessment order. This Court followed the Full Bench decision and allowing the writ petition directed the Sales Tax Officer to modify the assessment order in relation to condensed milk. Previously section 4 exempted from sales tax the sale of water, salt, food. grains, milk, gur, electrical energy for industrial purposes, books, magazines, newspapers and motor spirit and any other goods which the Provincial Government may exempt from time to time. The State Government issued a notification exempting many goods including milk products but excluding those sold in sealed containers. After the Full Bench judgment of this Court which was rendered on 20th July, 1973, the State Government at first is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are sealed. The amendment is effective from 31st March, 1956, the date when the notification was previously issued. The notification, in so far as it exempted milk products, which may not have included condensed milk, no longer remains in operation. The notification was issued by the State Government under section 4 as it stood. After its amendment, the legislature excluded condensed milk from being given exemption from sales tax. Since this amendment was retrospective no notification of the State Government could override the efficacy of the legislative will. After the amendment of section 4, the notification issued in 1956 exempting milk products became nullified retrospectively in so far as they sought to exempt condensed milk, milk powder or baby milk. It was urged that under the amended section 4, the State Government has been given the power to exempt goods by notification and hence the notification of 31st March, 1956, remains in force. Under clause (a) of the amended section 4, the State Government has been authorised to exempt "any other goods". None the less, it has no power to exempt condensed milk, milk powder or baby milk which has been specifically mentioned in cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsed milk for taxation cannot be held to be arbitrary or discriminatory. In Jagannath v. Union of IndiaA.I.R. 1962 S.C. 148., a levy of separate excise duty on tobacco leaf as well as on broken leaf of tobacco was upheld. In Hira Lal Rattan Lal v. Sales Tax Officer, Section III, Kanpur[1973] 31 S.T.C. 178 (S.C.); A.I.R. 1973 S.C. 1034., a classification for the purposes of sales tax between split or unsplit dal was upheld. It was ruled that the power of the legislature to specify the nature of the goods which will bring it to tax, is very wide. We see no merit in the attack based on article 14 of the Constitution. The point that article 19 is violated, because the retrospectivity given to the amendment of section 4 amounted to unreasonable restriction, does not impress us. In the Nestle's Products' case[1963] 14 S.T.C. 606., this Court held that condensed milk was taxable. It was only the Full Bench decision in the Indodan Milk Products' case(4), which was rendered on 20th July, 1973, that held that condensed milk was exempt. Soon thereafter in May, 1974, the legislature intervened to set matters right. The period of interregnum was hardly ten months. Right from 1948 everyone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x under the U.P. Sales Tax Act, it will also be liable to tax under section 8(2A) of the Central Sales Tax Act because its sale was not exempt from tax generally under the U.P. Sales Tax Act. Now that the amending Act makes it clear that condensed milk is liable to tax under the U.P. Sales Tax Act, it will be liable to tax under the Central Sales Tax Act. There is no question of section 8(2A) of the Central Sales Tax Act being void for abdication of legislative power. The Central Act had adopted the machinery for levy and imposition of tax in each State. It was not a case of abdication of its own legislative function by Parliament. The amended position of the U.P. Sales Tax Act will necessarily apply to assessment under the Central Act. The last submission related to efficacy of this Court's decisions in the Full Bench case and in the writ petition. Both these judgments were rendered by this Court inter parties. The question is, has the efficacy of those decisions been affected. The Full Bench decision dealt with references under the Sales Tax Act for the assessment years 1964-65 and 1965-66. The references were made at the instance of the assessee which was the present petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 25th February, 1972, in relation to condensed milk in the light of the observations made in it. The Sales Tax Officer was directed to appropriately amend the demand notices as well. The mandamus issued by this Court under article 226 of the Constitution cannot be countermanded merely by retrospectively amending the sales tax law. Section 12 which validates the assessment notwithstanding any judgment, decree or order of any court, will not apply to judgments rendered under the constitutional power under article 226 of the Constitution. No State Legislature can affect the constitutional power vested under article 226 of the Constitution in relation to a judgment actually rendered by it in between certain parties. The judgment of this Court in the aforesaid writ petition, having become final, operated in between the present petitioner and the sales tax authorities. A similar situation arose in Madan Mohan Pathak v. Union of IndiaA.I.R. 1978 S.C. 803.In that case the Supreme Court held that a mandamus issued by the Calcutta High Court under article 226 of the Constitution had to be obeyed notwithstanding the amendment of the law. Beg, C.J., observed: "I may, however, observe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
