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TMI Blog2002 (4) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... on of export of jute under the order of the Government of India. 3.. The petitioner received several notices from time to time under section 10 of the Act, 1962 into form IX prescribed under rule 13 of the West Bengal Taxes on Entry of Goods into Local Areas Rules, 1955 (hereinafter referred to "the Rules 1955"). The said notices were received on the ground that raw jute entered into local area during the period from 1st August, 1974 to 31st March, 1977 is liable to tax and penalty. 4.. The petitioner imported jute within the local area not for the purpose of sale, use or consumption. Therefore, under the Act, 1962 the authority has no power to levy tax on such goods. 5.. The entry of such goods within the local area is exempted under article 286(1)(b) of the Constitution of India and the State Government, therefore, has no power or jurisdiction to levy or impose tax on such goods. The notices issued by the Commercial Tax Officer, and tax levied therefore, are illegal and without jurisdiction. The order of penalty is also illegal and arbitrary. 6.. The petitioner, therefore, preferred an appeal before the Assistant Commissioner of Commercial Taxes against the order passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any order of penalty. Since rules framed under the Act, 1955 cannot be made applicable to the Act, 1962, relevant rules should have been framed under section 23 of the Act, 1962 before taking action. It is also argued that jute entered into the local area was not meant for local sale but actually for export outside the territory of India. The CTO has no authority even the sale, if any, was made in course of export in view of article 286 of the Constitution of India read with section 5 and section 14 of the Central Sales Tax Act, 1956. It is submitted that goods are exported by the Jute Corporation of India Ltd. and the petitioner is executing act of exporting after obtaining order of contract for such exports. Such contract, export licence, letter of credit are opened by the foreign buyers in the name of Jute Corporation of India Ltd., at the instance of the petitioner due to canalisation of export of goods under the order of the Government of India. Since after insertion sub-section (3) of section 5 of the Central Sales Tax Act, 1956, an attempt to levy any entry tax on the goods entered for consumption, use or sale within the local area is hit by article 286 of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment orders imposing levy of tax under the West Bengal Taxes on Entry of Goods into Local Areas Act, 1962 are bad in law. 11.. In view of the information slip No. 37470 dated April 3, 2002 filed on behalf of the petitioner issued by the concerned officer Central Filing and Enquiry Department, High Court, it appears that rule issued in C.R. No. 412(w) 1982 was discharged for default by the honourable Justice Suhas Chandra Sen on April 8, 1992. Therefore, the writ application filed under article 226 of the Constitution of India as it appears, was not heard on merits. The question therefore, arose as to whether such order of dismissal debars the petitioner in filing the present application under section 8 of the West Bengal Taxation Tribunal Act, 1987. In several cases, it has been held that a second petition under article 226 can be entertained if such petition was dismissed in limine without passing a speaking order or without making any pronouncement on merits (relied on AIR 1961 SC 1457 Daryao v. State of U.P. and AIR 1968 SC 985 P.D. Sharma v. State Bank of India). The present application being in nature and in form of a writ application like that of article 226 of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys, waste or uses up that article. But in some legal contexts the word consumption has a wider meaning. Thus when uncrushed salt is crushed in the factory, it is commercially a different article and the uncrushed salt must be held to have been consumed. It is therefore, not necessary that by the act of consumption, the commodity must be destroyed or used up (Kathiawar Industries Ltd. v. Jaffrabad Municipality AIR 1979 SC 1721 at page 1723). 17.. The legislative entry relating to the constitutional power to levy this tax is found in List II, entry 52 of the Seventh Schedule to the Constitution which reads: "52. Taxes on the entry of goods into a local area for consumption, use or sale therein." 18.. In a case of Burmah-Shell Oil Storage and Distributing Co. of India Ltd. v. Belgam Borough Municipality AIR 1963 SC 906 the honourable Court considered the meaning of the words "consumption, use or sale therein" and observed: "........The goods must be regarded as having been brought in for purposes of consumption when a person brings them either for his own use or consumption or to put them in the way of others in the area, who are to use and consume......". 19.. And it was he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exist in its original form. 24.. In the present case, the ratio of the decisions above referred clearly, therefore, governs the case, even if it were to be assumed that the sale in the general sense took place inside the local limits which however, it admittedly not the case. 25.. In view of the findings made above we hold that the goods since were brought within the local area not for consumption, use or sale within such local area but for export of the goods to the foreign countries through the Jute Corporation of India Ltd., no tax is payable on such goods. The assessment, therefore, made by the concerned officer and the tax levied under the provisions of the Act, 1962 is bad in law and liable to be quashed. The appellate authority has also taken the erroneous view by confirming the order of the learned C.T.O. which is also illegal and thus is set aside. The certificate proceedings initiated on the ground of such levy of tax are accordingly is held to be illegal and liable to be set aside. 26.. The impugned orders for the period August 1, 1974 to March 31, 1977 for levying of tax under Act, 1962 are accordingly set aside. The certificate proceedings bearing Nos. 26 and 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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