9911796707
TMI Blog1992 (3) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... x applicable to chemical fertiliser mixtures was governed by a notification issued under the provisions of section 8-A of the Act, and to that notification dated 12th August, 1971, was added a proviso, with effect from 1st June, 1972, on 21st March, 1972. The proviso provided that if the chemical fertiliser mixture includes any component which is not chemical fertiliser, then the tax on such component shall be levied at the same rate and subject to the same conditions as if that component had been sold independently as a commodity. One of the arguments advanced before us on behalf of the sales tax authorities is that the said notification with its proviso continues to remain effective in spite of the introduction of entry 48-A(ii) so that that entry must be construed with reference to the terms of the proviso and a component of a chemical fertiliser mixture, which is not a chemical fertiliser must be taxed at the same rate and subject to the same conditions as if that component had been sold independently as a commodity. In support of this contention our attention has been drawn to the Division Bench judgment of this Court in Janardhana Acharya v. State of Karnataka [1980] 46 STC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be levied in the case of the sale of any of the goods mentioned in column (2) of the Second Schedule by the dealer as stated therein. This legislative mandate will have to be normally respected by the executive and it must collect the tax accordingly. However, section 8-A empowers the State Government to notify exemptions from and reductions of, the tax to be levied. 4.. In Janardhana Acharya's case [1980] 46 STC 375 (Kar), the purchase turnover of old gold and silver articles, from the levy of tax under section 6 of the Act, was exempted. Thereafter section 5(1) was amended enhancing the rate of tax payable on general goods from 3 to 3 per cent. Question was whether the earlier notification, granting exemption from the levy of tax under section 6 ceased to be operative. The Bench held that the exemption notification, exempting the levy of tax under section 6, continued to be in force despite the amendment to section 5(1) of the Act. At page 378, the Bench held: "Sub-section (1) of section 8-A of the Act confers power on the State Government either to reduce the rate of tax payable on any goods under the Act or to exempt the tax payable on any specified goods under the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment) Act, 1974, he was liable to pay sales tax in respect of the turnover relating to dyes at 4 per cent only and not at the rate of 8 per cent during the period 1st April, 1974 to 1st July, 1974. The question was whether the amendment Act enhancing the rate of tax to 8 per cent affected the earlier notification reducing the tax rate to 4 per cent, which was issued when the rate of tax prescribed under the statute was 6 per cent. Justice E.S. Venkataramaiah (as he then was) held that the earlier notification ceased to be effective when the rate of tax was amended by the Legislature. At page 224, the learned Judge observed: "It is no doubt true that the State Government in exercise of its power under section 8-A of the Act had reduced the liability of a dealer to 4 per cent of his turnover in respect of dyes by the notification dated 10th September, 1970. That notification could be in operation till 1st April, 1974, on which date the Amendment Act No. 14 of 1974 came into force. The Legislature, which is the highest legislative body in the State, declared on and after 1st April, 1974, that the turnover relating to dyes should be subject to tax at the rate of 8 per cent of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture in prescribing a different rate of tax. The legislative will being superior to that of the State Government, former would always override the latter. Similarly, when the Legislature introduces an entry in the Schedule to the Act relating to a particular class of goods, intention of the Legislature as on the said day of the introduction is quite clear, to treat the class of goods only in the particular manner stated in the entry; it is not possible to infer an implied intention on the part of the Legislature to treat the goods in any other manner, contrary to the express intention in the amending Act; necessarily, the earlier notification would cease to be effective, automatically. 7.. If the Legislature enacts on a particular date that specified goods shall be taxed in a particular manner, it is clear that at least on the said date, the Legislature had a clear intention to levy the tax on the goods in question at that particular rate. The Legislature is presumed to be aware of the prevailing circumstances relevant to the subject-matter in question as it existed when the law was enacted. Therefore, when entry 48-A was amended retrospectively with the insertion of sub-entry (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods or class of goods gets modified by an amendment to this Act, notification, if any, issued in respect of such goods or class of goods under clause (a) of sub-section (1), shall, with effect from the date from which such amendment comes into force be deemed to be cancelled to the extent it relates to such goods or class of goods." Above sub-section (3-A) was inserted with retrospective effect by Karnataka Act 7 of 1981. Mr. Kumar pointed out that this retrospective insertion of subsection (3-A) was to get over the effect of the decision in Janardhana Acharya's case [1980] 46 STC 375 (Kar); however, subsequently, by section 5 of the Karnataka Act 8 of 1984, this sub-section (3-A) was omitted. Karnataka Act 8 of 1984 came into force from 1st April, 1984. Mr. Kumar contended that this legislative history of sub-section (3-A) is a clear pointer to the legislative intention to restore the ratio of Janardhana Acharya's case [1980] 46 STC 375 (Kar). It was contended that while in the year 1981 the Legislature resolved to erase the declaration of the law made in Janardhana Acharya's case [19801 46 STC 375 (Kar) by enacting sub-section (3A), with effect from 1st April, 1984, it decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the language used by the Legislature while amending section 3(2). Question was whether the amended section 3(2) in any way reflected the legislative intention to undo the nullification of the relevant part of section 3(2) by the High Court. 12.. In the instant case before us, except deleting sub-section (3-A) from section 8A of the Act, we have no other clue towards the legislative intention justifying an inference that the Legislature intended to revive the ratio of the decision in Janardhana Acharya's case [1980] 46 STC 375 (Kar). 13.. The ratio in Janardhana Acharya's case [1980] 46 STC 375 (Kar) is cited in support of the general proposition that a notification issued under the provisions of section 8(3) remains operative although the relevant portion of the Act itself has been subsequently amended. We do not find it possible to accept this proposition and must so declare. 14.. Section 8-A(3) empowers the State Government, by notification, to cancel or vary a notification issued under sub-section (1). The words of subsection (3) empower the State Government to cancel or vary notification issued under section 8-A(1) but they cannot be read to mean that a notification ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
