9911796707
TMI Blog2006 (11) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... t. (3) The petitioner was not selling the disputed goods and the Health and Family Welfare Department was merely recouping the cost of the disputed goods and a fixed percentage of administrative charges from the department or organisation to whom those were supplied. (4) At the time of distribution or supply of the disputed goods Central Government was the owner of those goods and when those goods were supplied to other departments of the Central Government, there was no transfer of property because the Central Government was supplying the goods to another department through the petitioner which is also a department of the Union of India. The petitioner is a unit under the Ministry of Health and Family Welfare of the Government of India and under the administrative control of Director-General of Health Service, Government of India. The petitioner has been designed and defined as a service department under the General Financial Rule 297. The petitioner unit has been set up for procurement, testing, distribution and supply of medicines to different micro health units throughout the country specially in Eastern India and Union Territory like Andaman and Nicobar islands. The petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e year ending March 31, 1972 assessing Rs. 1,53,629.10 as sales tax and imposing a penalty of Rs. 812.10. Against the said demand notice the petitioner moved the appropriate forum but lost. A special leave application was filed before the Supreme Court much beyond the period of limitation. By order dated August 22, 1992 the Supreme Court declined to condone the delay, dismissed the special leave petition as barred by limitation but clarified that the questions raised in the petition would be regarded as open at the stage of the Supreme Court. To realise the aforesaid tax and the penalty a certificate proceeding under the West Bengal Public Demands Recovery Act has been initiated against the petitioner. After the aforesaid certificate proceeding was initiated the petitioner has approached this Tribunal seeking to challenge the assessment order, the demand for tax and penalty and the certificate proceeding for realisation thereof. Sales tax was also levied on the petitioner under the provisions of the Central Sales Tax Act, 1956. The petitioner moved the Calcutta High Court in W.P. No. 3998 (W) of 2002 against such impost and demand. By judgment and order dated February 4, 2003(1) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsuccessful. The petitioner's special leave petition was dismissed as barred by limitation as already stated hereinbefore. Section 2(b) of the 1954 Act has defined "dealer": "'dealer' means any person who sells notified commodities manufactured, made or processed by him in West Bengal, or brought by him into West Bengal from any place outside West Bengal for the purpose of sale in West Bengal, and includes the Central or a State Government, a local authority, a statutory body, a trust or other body corporate, a liquidator or a receiver appointed by a court in respect of a person defined under this clause as a dealer: Explanation.--Where notified commodities are brought into West Bengal from any place outside it, the person who takes delivery or on whose behalf delivery is taken shall be deemed to have brought them into West Bengal." In view of the above definition the petitioner being a department of the Central Government could be a dealer if it brought notified commodities into West Bengal from any place outside West Bengal for the purpose of sale in West Bengal. This Tribunal in its judgment in Union of India v. State of West Bengal [1992] 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther department or part of the Central Government but the same system does not and cannot apply when the supplies are made to other State Governments or statutory organisations or institutions under other State Governments and statutory organisations. For the purpose of assessment of the petitioner's tax liability it is to be factually ascertained whether the commodities were being supplied free as aid or those were sold within the meaning of the Sale of Goods Act at the relevant point of time. The commodities which were supplied free as aid and those which were supplied or distributed to the other departments of the Central Government or institutions forming part of the Central Government would not be exigible to sales tax under the provisions of the Act of 1954. The other contention regarding exemption under article 285(1) of the Constitution raised by the petitioner does not have any merit inasmuch as this said question has already been settled by the highest court of the country. The Supreme Court on a reference under article 143(1) of the Constitution in "In re Sea Customs Act" AIR 1963 SC 1760 has laid down: "(25) This will show that the taxable event i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o this court to re-examine the question already decided by it and to overrule, if necessary, the view earlier taken by it, in so far as all other courts in the territory of India are concerned they ought to be bound by the view expressed by this court even in the exercise of its advisory jurisdiction under article 143(1) of the Constitution. We would also like to draw, attention to the observations made by Ray C.J. in St. Xaviers College AIR 1974 SC 1389 that even if the opinion given in the exercise of advisory jurisdiction may not be binding, it is entitled to great weight. It would be strange that a decision given by this court on a question of law in a dispute between two private parties should be binding on all courts in his country but the advisory opinion should bind no one at all, even if, as in the instant case, it is given after issuing notice to all interested parties, after hearing everyone concerned who desired to be heard, and after a full consideration of the questions raised in the reference. Almost everything that could possibly be urged in favour of and against the bill was urged before us and to think that our opinion is an exercise in futility is deeply frustra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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