9911796707
TMI Blog1989 (8) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... r order dated 29th May, 1989. 2.. The case of the applicant in the writ application is briefly as follows: The applicant is a registered dealer under the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as "the BFST Act"), and also under the Central Sales Tax Act, 1956 (hereinafter referred to as "the CST Act"). The applicant carries on the business of selling imported gudaku. He has been purchasing and importing the same from Orissa and Andhra Pradesh for sale in West Bengal. Gudaku is used for the purpose of smoking as tobacco for hookah and also used as paste for teeth and gums. Under the West Bengal Sales Tax Act, 1954, and also under the CST Act notices of assessment in respect of the periods from 1st December, 1978 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleges that gudaku being tobacco within the meaning of Schedule I of the BFST Act, the demand for sales tax is unjustified and all the payments already made on that account including the sum of Rs. 3,465.56, referred to above, are liable to be refunded, and no further assessments and/or demand should be made in this regard. 3.. Respondents Nos. 1 to 4 filed an affidavit-in-opposition. Their substantial case is that gudaku as imported into West Bengal by the applicant, is tobacco-paste and is not tobacco for hookah as contemplated by entry 18 of Schedule I of the BFST Act, 1941, or rule 3(28)(b) of the Bengal Sales Tax Rules, since omitted and now included in item 57. It is also their case that gudaku does not come within the meaning of to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring for the applicant, contends that the notification purported to be made under section 25 of the 1954 Act could not bring within the ambit of notified commodity an item which under the BFST Act is not taxable. The contention of Mr. Chakraborty in this regard appears to be substantially correct. Section 25 of the West Bengal Sales Tax Act, 1954, relates to the power of State Government to specify commodities taxable under this Act. It provides that if the State Government is at any time of opinion that it would be in the public interest that any commodity which is liable to tax under the BFST Act, 1941, should be taxed under this Act (i.e., 1954 Act), it may, by notification, specify such commodity and direct that with effect from the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents gave a feeble denial by contending that the constituents mentioned by the Indian Standards Institution are not exhaustive. At any rate, it does not appear that tobacco in any form is an ingredient of tooth-paste according to the Indian Standards Institution. 9.. Learned Advocate for the applicant referred to the decision in the case of Gulabchand Harekchand v. State of West Bengal reported in [1985] 59 STC 224 (Cal). In that case it was held that gudaka is manufactured out of tobacco and is covered by the expression "tobacco" as defined in the Bengal Sales Tax Rules, 1941, read with item 19 of the First Schedule to the Central Excises and Salt Act, 1944, and that, therefore, tax could not be levied on gudaku. It was further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product of tobacco and that although a major part of molasses and other constituents are added to the tobacco, the essential and effective ingredient remains tobacco and, therefore, gudaku is known as a product of tobacco in common parlance. In coming to this conclusions their Lordships referred to the decision in Gulabchand's case [1985] 59 STC 224 (Cal) with approval. Relying on the decisions as aforesaid and in the view we have taken, we find that gudaku is tobacco within the meaning of item 18 and item 57 of the Schedule of tax-free goods under the BFST Act, 1941. Therefore, there could be no question of this item being brought within the ambit of the 1954 Act by virtue of a notification under section 25 of the 1954 Act. In that view o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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