9911796707
TMI Blog1998 (8) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... wder often became necessary. A mixture fertiliser popularly known as N.P.K. was sold by the firm after mixing the constituent fertilisers nitrogen, phosphate and potash in the proportion of 8: 8: 8 manually by means of shovels. The mixture fertiliser was marketed under the brand name "M.S.C. 8: 8: 8". 3.. The Commercial Tax Officer, Malda, by his order dated June 28, 1988, levied tax for the assessment period of 12 months ending on the last day of Chaitra, 1390 B.S. on an estimated sale of Rs. 3 lakhs and imposed a token penalty of Rs. 50 only for alleged late filing of return for the preceding month. An appeal was preferred against the said assessment order. By his order dated April 10, 1991, the Assistant Commissioner, Commercial Taxes, Siliguri Circle was pleased to set aside the token penalty of Rs. 50. However, he held that the levy of tax on the sale of fertiliser mixture amounting to Rs. 3 lakhs was justified. He also remanded the case back to the Commercial Tax Officer regarding the exemption granted by the C.T.O. on other sales worth Rs. 10,95,361.75. 4.. Being aggrieved by this appellate order, the applicants moved the West Bengal Commercial Taxes Appellate and Revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the present case because the said Act is not in pari materia with the West Bengal Sales Tax Act, 1954. The impugned order dated November 21, 1996 passed by the West Bengal Commercial Taxes Appellate and Revisional Board also, they argued, suffered from the same defects; as the cases relied on by them involving the Tamil Nadu General Sales Tax Act, 1959 should have no relevance whatsoever to a case arising under the West Bengal Sales Tax Act, 1954 (in short, "the 1954 Act") particularly when the two Acts are not in pari materia when touching upon the points of dispute in the instant case. According to them sale price used in relation to a dealer in the 1954 Act envisages the amount of money consideration for the sale of notified commodities manufactured, made or processed by him. But physically mixing fertilisers, with the help of shovels, could not fall within the ambit of manufacturing, making or processing. Since the definition of "sale price" according to section 2(d) of the 1954 Act is not applicable to such sale or rather resale of fertiliser mixture, the commodity sold by the applicants could not be taxed. They argued that the definition of "sale" as given in section 2( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , etc., at its mixing works manually by means of shovels according to a standard formula approved by the Director of Agriculture. The appellant claimed that as the fertiliser mixture prepared by it could not be said to be a commodity different from the ingredients composing the mixture and as the components of the mixture purchased within the State had suffered tax under section 3(2) read with item No. 21 of the First Schedule to the Act, the fertiliser mixture could not be taxed again. The High Court disallowed the appellant's claim. On appeal to the Supreme Court, it was held that (i) it was only when a chemical fertiliser specified in sub-items (1) to (15) of item No. 21 of the First Schedule was sold in the same condition in which it was purchased that it was not subject to a fresh levy; (ii) the question whether there was any manufacturing process involved in the preparation of any fertiliser mixture or whether shovel mixing of the chemical fertilisers amounted to manufacture or not was wholly irrelevant for the purpose of the determination of the question in that case. The mixtures produced by the appellant were different from their component parts; their properties and uses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e; (3) urea; (4) ammonium chloride; (5) sodium nitrate; (6) calcium ammonium nitrate; (7) super phosphate single; (8) super phosphate triple; (9) kotka phosphate; (10) di-calcium phosphate; (11) potassium chloride (muriate of potash); (12) sulphate of potash; (13) mono-ammonium phosphate; (14) di-ammonium phosphate; (15) bone-meal; (16) any mixture of one or more of the articles mentioned in items (1) to (15) and one or more of the organic manures. Point of levy is at the point of first sale in the State, rate of tax is 3 per cent." In the 1954 Act, the item which is notified is "fertilisers" and this has not been defined in the 1954 Act. 12.. In view of the nature of item 21 of the Tamil Nadu General Sales Tax Act, 1959 and the observations of the Supreme Court in the Shaw Wallace Co. Ltd. case [1976] 37 STC 522 it would be clear that the ratio of the Supreme Court judgment in the Shaw Wallace case [1976] 37 STC 522, is quite general and is not particularly linked with the special identities of the chemical fertiliser as mentioned at sub-items (1) to (15) of item 21 of the First Schedule to the Tamil Nadu Act. The ratio of the Supreme Court in that case is clearly indicated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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