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TMI Blog1989 (5) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... licant No. 1 for non-payment of sales tax in respect of their manufacture of pantiles. The applicants' further case is that pantiles as such, are not a notified commodity although roofing tiles are notified to be a commodity liable for tax under the 1954 Act. The petitioners contend that pantiles are mostly used as roof on houses built by the poorer section of the community and are not intended to be used as roofing tiles on pucca buildings. In view of the threat given by the respondents to initiate penal proceedings against the petitioners for realisation of sales tax in respect of pantiles manufactured by them, they have preferred the present application on the grounds that the demand of payment of sales tax under the Act of 1954 is bad and illegal inasmuch as the item notified by the Act does not cover pantiles or the tiles manufactured by the applicants, that pantiles cannot be equated with roofing tiles, and that therefore, the demand for tax for manufacture of pantiles is unwarranted by law. On such submissions the applicants have prayed for an order to the effect that they are not liable to pay any sales tax under the provisions of the West Bengal Sales Tax Act, 1954. Along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1941, but contended that under that Act the rate of taxes was lower than under the Act of 1954, and that the manufacturers were also entitled to some benefits like exemption up to a certain quantum of turnover. Mr. Roy argued that there is nothing to indicate what public interest was being served by bringing the item within the purview of the West Bengal Sales Tax Act, 1954. Ultimately, however, Mr. Roy conceded that at the relevant time there was practically no difference in the rate of tax under the two Acts. Mr. Roy further argued that the action of the respondents in issuing a notification under section 25 of the West Bengal Sales Tax Act, 1954, to include the particular commodity under the Act was arbitrary and violative of article 14 of the Constitution of India. Finally Mr. Roy argued that pantiles are not really roofing tiles and as such, not liable to tax. On behalf of the respondents it was contended by the State representative that by inclusion of the item in the 1954 Act, some advantage has been given to the applicants whereas some might have been withdrawn. It was pointed out that under the 1941 Act there is provision for imposition of multi-point tax whereas u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to taxation under the Bengal Finance (Sales Tax) Act, 1941 (Ben. Act VI of 1941), should be taxed under the West Bengal Sales Tax Act, 1954 (West Ben. Act IV of 1954); Now, therefore, in exercise of the power conferred by section 25 of the West Bengal Sales Tax Act, 1954 (West Ben. Act IV of 1954), the Governor is pleased hereby to specify such commodities and direct that with effect from the 1st September, 1977, the Bengal Finance (Sales Tax) Act, 1941, shall cease to apply and the West Bengal Sales Tax Act, 1954, shall apply to such commodities. The commodities referred to above: 1.. ........................ 2. ........................ 3. ........................ 4. ........................ 5. Bricks (other than fire bricks), roofing tiles and lime:" It is true that the notification does not indicate the nature of public interest that is going to be served by it. We, however, feel it is not necessary to indicate that in the notification itself. The primary purpose of the levy of all taxes is to raise funds for public good. Which person should be taxed, what transaction should be taxed or what goods should be taxed, depends upon social, economic and administrative consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Ltd. v. State of Punjab). The principle decided in that case so far as it may be necessary for our purposes, may be stated thus: "If the ordinary law of the land and the special law provide two different and alternative procedures, one more prejudicial than the other, discrimination must result if it is left to the will of the authority to exercise the more prejudicial one against some and not against the rest." It was further observed that where two alternative remedies are provided to the Government, and it is left to the unguided discretion of the Collector to resort to one or the other, and to pick and choose for the application of the more drastic procedure, the provision lends itself open to the charge of discrimination and as being violative of article 14. The next case relied on by Mr. Roy is reported in AIR 1973 SC 689 (Nagpur Improvement Trust v. Vithal Rao). There certain acquisition made by the Government was under challenge. The position there was that the Government could acquire land for a housing accommodation scheme either under the Land Acquisition Act or under the Improvement Act. It was held that this enabled the State Government to discriminate between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring for the respondents argued that if a particular law is found to be burdensome to some persons, it is not for the courts to soften its rigours in a manner so as to render the law itself nugatory. In support of the plea that while a question whether a demand is onerous may be germane to legislative policy but not a matter for judicial compassion, reliance was placed on the decision reported in [1977] 40 STC 497 (SC) (R.S. Joshi v. Ajit Mills Limited). Finally, Mr. Roy argued that pantile is not really a roofing tile within the meaning of the expression used in the 1954 Act and the Rules framed thereunder. It could not be disputed that pantile is a kind of tile which is meant for covering the top of a house-be it brick-built or mud-built. Mr. Roy wanted to make a distinction between a brick-built house and a mud-built house. We see no point in such a distinction so far as the nature of the roof is concerned. A brick-built house may also have pantiles used for the purpose of roofing. It may be true that pantiles are generally used for the purpose of roofing houses used by the less affluent section of the community. At the same time, it may be pertinent to take judicial notice of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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