9911796707
TMI Blog1990 (3) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 1361 (RN-696 of 1989) and 1350 B.S. (RN-2 of 1990). They obtained licence from the municipality to carry on the trade. Under a misconception of law they got themselves registered and paid sales tax for some years from the inception of business. There being, however, no provision in the Act that sweetmeats are taxable, the applicant and some others filed a writ application under article 226 of the Constitution challenging the demand, being C.R. 7395 (U) of 1985. Subsequently, the applicants received notices of demand arising out of several cases in connection with the proceedings initiated by the Commercial Tax Officer, Serampore Charge under sections 11 and 14 of the Bengal Finance (Sales Tax) Act, 1941 (for short "the BFST Act"). This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uses (a), (aa), (aaa), (b), (bb), (bbb), (c), (cc), (cc-i), (ccc), (cccc), (d) and (dd)." No tax is payable under the Act on the sale of goods specified in the first column of Schedule I subject to the conditions and exceptions, if any, set out in the corresponding entry in the second column thereof. Item 7 of Schedule I as it stood prior to April 1, 1985, was as under: 1 2 "7. Cooked foods, other than Except when sold in sealed cakes, pastries, biscuits and containers." sweetmeats, sold at one time to a person at a price of not more than ten rupees. This item has been omitted with effect from April 1, 1985 by section 4(11)(a) of the West Bengal Act 5 of 1985. Entry 101 of the same Schedule as it now stands, is as follows: 1 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Constitution. 8.. It is argued on behalf of the applicants that there is no presumption about tax and unless expressly provided for, the demand becomes unlawful. The specific grievance is that sweetmeats not being specially provided for in any of the sub-clauses of section 5(1), it could not be demanded with the aid of the residuary clause. In support of the contention, reference was made to the case of Central India Spinning and Weaving and Manufacturing Co. Ltd v. Municipal Committee, reported in [1958] SCJ 604. In particular, our attention was drawn to a passage from Crawford on Statutory Constructions. There it is observed that statutes levying taxes or duties upon citizens will not be extended by implication beyond the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage. 9.. These propositions of law are well-settled but we fail to see how this helps the applicants. The applicants are not sought to be brought within the net of taxation by implication or with the aid of any presumption. The demand is made at the general rate of 8 per cent as provided in section 5(1)(e). The fact that specific rates for specific items have been prescribed in other sub-clauses of the section, does not mean that levy of tax on any item other than those is unauthorised. The scheme of the Act is to provide specific rates for certain specified items, and then prescribe a general rate for all other goods subject, however, to the exceptions contemplated by section 6 and Schedule 1. This does not render the residuary clause i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, makes it exempt with effect from June 1, 1987. In regard to that also it was argued that the entry as fashioned, makes it inconsistent with reference to other entries. Item 101 speaks of sweetmeats other than cakes, pastries and biscuits and it is pointed out that specific provision has been made for exemption of biscuits in item 74. Therefore, it was argued that while under item 74 biscuits are exempt, it is not exempt under item 101. Item 74 while exempting biscuits, makes it clear by the entry in column 2 that it is not available to biscuits manufactured or processed in a factory as defined in the Factories Act, 1948. Therefore, the biscuit, referred to in item 74, is not the same item as referred to in item 101. 11. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent relied on by the applicants cannot be the sole guiding factor in determining whether sweetmeats were always exempt. The language of erstwhile item 7 and the present item 101 of Schedule I makes it abundantly clear that sales of sweetmeats were tax-free only with effect from June 1, 1987. Therefore, even if the Statement of Objects and Reasons casts some doubt (which we do not think it does) that doubt stands repelled by the clear language used in effecting the amendment. Then again, the Statement of Objects and Reasons for the amendment in 1987 could not be utilised for interpreting the provisions as they stood prior to amendment. 12.. The respondents have made specific reference to the fact that the applicants got themselves register ..... X X X X Extracts X X X X X X X X Extracts X X X X
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