9911796707
TMI Blog2001 (3) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... d makhana (whole-gram coated with sugar). The appellant/petitioner's grievance, in a nut shell, is that while sugar is an exempted item contained in Schedule I of the Assam General Sales Tax Act, 1993, sugar candy in which the appellant/petitioner is carrying on business, has not been conferred the benefit of exemption though sugar candy is nothing but sugar, the only difference between the two being in the process of manufacture. The learned single Judge has negated the claim of the petitioner on the ground that it is within the power and competence of the State Legislature to confer and deny the benefit of exemption from payment of sales tax and the question of conferment and denial of exemption from payment of tax lies in the realm of po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 2(11) of the Assam General Sales Tax Act, 1993 defines "declared goods" in the same terms as defined in section 14 read with section 2(c) of the Central Act. The last contention of Mr. Saikia is that sugar is an item to which the provisions of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 are applicable and by virtue of the provisions of the said Act, the levy under the Assam General Sales Tax Act, 1993 on sugar candy is void and unauthorised calling for interference by this Court. 4.. Before dealing with the contentions raised by Mr. Saikia, learned Senior Counsel for the appellant, it may be apposite to look into the provisions of the Assam Act of 1993. Section 9 of the said Act provides that in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excises and Salt Act, 1944. The apex Court after considering the definition of sugar as appearing in item No. 8 of the First Schedule under the Central Excises and Salt Act, 1944 came to the conclusion that as the said definition includes all forms of sugar items containing more than 90 per cent sucrose, the items in question, i.e., patasa, harda and alchidana do come within the meaning of sugar and are entitled to the benefit of exemption under the Bombay Act. However, in the instant case, the Legislature has very consciously excluded sugar candy, confectionery and other like items from the meaning of sugar in entry No. 36 of Schedule I of the Assam Act of 1993. The power and competence of the State Legislature to restrict the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the States in accordance with the proportion and ratio mentioned in Second Schedule to the said Act. Clause (1) of Second Schedule as amended which is relevant is extracted hereinbelow: "1. Sugar.-During the financial year commencing on the 1st day of April, 1984, there shall be paid to each of the States specified in column 1 of the Table below such percentage of the net proceeds of additional duties levied and collected during that financial year in respect of sugar, after deducting therefrom a sum equal to 3.271 per cent of the said proceeds as being attributable to Union territories, as is set out against it in column 2: Provided that if during that financial year there is levied and collected in any State a tax on the sale or pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lcutta High Court in Madanlal Khaitan v. Commercial Tax Officer, Siliguri reported in [1972] 29 STC 625 and the other is of this High Court in All Assam Zarda Merchants Association v. State of Assam reported in [1999] 115 STC 92. 9.. The above argument of Mr. Saikia was not advanced before the learned single Judge. When confronted with this position, Mr. Saikia submits that the issue having raised a pure question of law can be agitated in the appellate court though not raised earlier. In support thereof, Mr. Saikia relies on two decisions of the apex Court in Vasantkumar Radhakisan Vora v. Board of Trustees of the Port of Bombay reported in AIR 1991 SC 14 and in Budhia Swain v. Gopinath Deb reported in (1999) 4 SCC 396. We have given our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sales tax under the Assam Act of 1993 on sugar candy therefore, is without any substance. For the reasons discussed above, with great respect, we are unable to agree with the views of the Calcutta High Court expressed in Madanlal Khaitan v. Commercial Tax Officer [1972] 29 STC 625 to the effect that the levy and collection of the Central excise duty under Act No. 58 of 1957 on any particular item and receipt by a State of its share of Central excise duty under the said Act would have the effect of invalidating the levy and collection of tax on sale or purchase of the same goods under any State Act. For the same reason, the decision rendered by the learned single Judge of this Court in All Assam Zarda Merchants Association v. State of Assam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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