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TMI Blog2009 (12) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... o govern the disposal of W.P. No. 4023 of 2005 because both these writs involve common questions of law based on identical facts and secondly, arise between the same parties except the difference being that of involvement of different period of assessment years under the Central/State Sales Tax Acts. The question that arises for consideration in these two writs is whether a commodity known as maize oil and cake , which is a by-product of maize is a taxable commodity under the Central Sales Tax Act (for short, the CST Act ) and M.P. General Sales Tax Act and M. P. Commercial Tax Act (for short, MPGST Act/MPCT Act ) and if so at what rate? In other words, the question that arises for consideration in these writs is whether the commodity in question, which is in the nature of by-product of maize is subjected to payment of sales tax under the Sales Tax Acts and if so, under which entry and if they are exempt from payment of sales tax then under which entry? By filing this writ under articles 226/227 of the Constitution of India, the petitioner (dealer) seeks to challenge the revision orders passed by the Upper Commissioner of Commercial Tax, Indore dated October 31, 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner while assailing the legality and proprietary of the impugned orders contended that the assessing officer and revisional authority erred in holding that maize oil and cake are taxable commodities. According to learned counsel, both commodities being in the nature of by-product of maize and maize' being a cereals as specified in clause (i)(vi) of section 14 of the Central Sales Tax Act is exempt from payment of sales tax by virtue of exemption notification dated March 30, 1994 (annexure P2) issued by State in exercise of powers conferred by section 12 of the MPGST Act which not only exempts the cereals as specified in clause (i) of section 14 ibid. as is clear from clause (i)(i) of Schedule appended to exemption notification but also exempts by-products of cereals as is clear from clause (i)(vii) of the said Schedule from payment of tax. The learned counsel contended that the case of the petitioner would fall in clause (ii) of entry 91 of Schedule I of the MPCT Act, 1994 which deals with cases relating to exemption of specified commodities, such as by-product of cereals and foodgrains from payment of sales tax. This in substance was the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Atta, maida, suji, rawa flour and other by-products of foodgrains and cereals. 8. Besan, chuni, and other by-products obtained by using pulses. 9. Badi, kuldai, sewai, finger paped, sabudana ke phool. 10. Sugarcane 11. Singhada 12. Phoolbahari jhadoo 13. All kinds of footwear made of P.V.C. and chappals made of rubber and straps thereof the selling price of which does not exceed Rs. 50 per pair. (2) (SECTION 14 of CST Act) 14. Certain goods to be of special importance in inter-State trade or commerce. It is hereby declared that the following goods are of special importance in inter-State trade or commerce: (i) Cereals, that is to say(i) paddy (Oryza Sativa L.). (ii) rice (Oryza Sativa L.) (iii) wheat (Triticum vulgare, T. compactum, T. sphaerococcum, T. durum, T-aestivum L., T. dicoccum); (iv) jowar or milo (Sorghum vulgare pers); (v) bajra (Pennisetum typhoideum L.); (vi) maize (Zea mays L) (vii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e then by-products of maize would fall within the four corners of clause (7) of exemption notification read with clause (ii) of entry 91 of Schedule I of the MPCT Act thereby exempting such by-products from payment of sales tax. In our view, in order to find out as to whether a particular commodity under exemption notification read with clause (ii) of entry 91 is exempt from payment, two things are required to be seen. Firstly, whether commodity in question is a by-product and secondly, whether it is generated out of cereals specified in clause (i)(i) to (x) of section 14 ibid. Once it is held that commodity is a by-product of cereals as specified in section 14 ibid. then it is exempt from payment of sales tax. We are not inclined to accept the submission of learned counsel for the the State when he made attempt to bring the case under the entry II, Part V of Schedule II of the MPGST Act dealing with vegetable and edible oil except hydrogenated vegetable oil . In our view, when there is a specific entry dealing with exemption then in such event, the general entry dealing with the commodity would not be attracted. Its application gets excluded. We are also no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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