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TMI Blog1984 (9) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners have been dealing in tobacco brought from outside the State of West Bengal, that is to say, tobacco leaf and tobacco paste popularly known as "gudaku" or "guraku" for use in teeth and also for hookah. 3. According to the petitioners, under Item 18 of Schedule I to the Sales Tax Act, tobacco for hookah in any form and under Rule 3) of the Bengal Sales Tax Rules, 1941 (hereinafter referred as the "Rules") the sale of tobacco as defined under the Central Excises and Salt Act, 1944 are deductible from gross turnover in calculating taxable turnover. Therefore, such gudaku being a tobacco product cannot be subject to tax, either under the Sales Tax Act as also under the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972 (hereinafter referred to as the Entry Tax Act). 4. Mr. Gopal Chakraborty, the learned Senior Advocate appearing for the petitioners, contends that "gudaku" manufactured out of tabacco and having as its constituents lime, molasses, gerumati and some essence to give it flavour is covered by the expression "tobacco". He further argues that 'gudaku" being wholly or essentially manufactured out of tobacco, which is an exempted item both under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tobacco. 9. Mr. Chakraborty further submits that under the West Bengal Sales Tax Act, 1954 tobacco for hookah or teeth gums are not taxable under the said Act. He, however, points out that under Notification No. 3123-FT dated 15th July, 1975 the tooth-paste/dentifrice has been brought, to tax. But according to Mr. Chakraborty, the tobacco for hookah or teeth gums could never be brought within the meaning of tooth-paste and dentifrice. It is his submission that gudaku which may be used for cleansing teeth cannot be toothpaste or dentifrice within the meaning of the said West Bengal Sales Tax Act. 10. It is the case of the petitioners that the ingredients which constitute a tooth-paste are absent in gudaku. The petitioners state that according to the specification for tooth-paste as prescribed by the Indian Standards Institution the materials used in the manufacture of tooth-paste fall into the following categories-(a) polishing agents, (b) soap or detergent, (c) humectant, i.e. glycerol or sorbitol, (d) binding agent, (e) astrigent, (f) deodorant, (g) water and (h) permitted colours, preservatives, flavour and sweetening agents. 11. Mr. Chakraborty submits that the constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctured or not" as given in the definition of "tobacco" in the Central Excises and Salt Act, 1944 should be given a liberal interpretation. Giving such interpretation the Gujarat High Court held in that case that the said "Ipco-dental creamy snuff" was tobacco and was therefore exempt from sales tax. 18. Regarding taxability of gudaku under the said Entry Act, Mr. Chakraborty's contention is that "gudaku" has been placed in Item 41(c) of the Schedule to the said Entry Tax Act which reads : "Tooth-paste or powder, guraku". The contention of Mr. Chakraborty is that tobacco is not specified article in the said Schedule and is not liable to tax and gudaku being a tobacco product should be exempted from the levy of tax. He also submits that gudaku not being a tooth-paste nor a tooth-powder as understood in the trade cannot be placed in the category of tooth-paste or tooth-powder under Item 41(c) of the said Schedule. 19. Mr. S.N. Dutta, the learned Advocate appearing for the respondents, strongly contests the contentions of Mr. Chakraborty. 20. Mr. Dutta contends that gudaku is not essentially or wholly a tobacco product. It is-given a tobacco flavour and essential elements of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for suo motu revision to the relevant authorities being Annexure D to the petition at pages 45 and 58. In that view of the matter, he submits that this writ petition is not maintainable. 24. Mr. Dutta cites a decision of the Supreme Court in the case of Titaghur Paper Mills Co. Ltd. v. State of Orissa reported in A.T.R. 1983 S.C. 603. The Supreme Court observes in this case that it is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute should be availed of. To this submission of Mr. Dutta, Mr. Chakraborty argues in reply that in the present case it is a question which concerns the construction of Item 19 of the First Schedule to the Central Excises and Salt Act, 1944 and also Rule 3(28) of the Bengal Sales Tax Rules, and other relevant provisions of the statutes. It is also his submission that no further investigation as to any fact need be made in this proceeding, and as such this writ petition can be decided on merits having regard to the construction of the relevant provisions of law involved in this application. 25. In support of his said contention Mr. Chakraborty c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er will take it as tooth-paste or tooth-powder. It must be construed in the sense in which they are understood in the trade by the dealer and the consumer. I cannot imagine that gudaku is understood in that trade by the dealer or the consumer as tooth-paste and nothing but tooth-paste. There are no materials placed before me in consideration of which I can come to a conclusion that gudaku can be taken as toothpaste or tooth-powder. Mr. Chakraborty submits, and in my view rightly, that occasional use of gudaku for cleansing teeth cannot make it a tooth-paste or dentifrice. In this particular case the test is whether gudaku is covered by the expression of "tobacco" as defined in Rule 3(28)(b) read with explanation of the Bengal Sales Tax Rules or not. If it is found that it comes within the definition of "tobacco", then this item is entitled to exemption from the levy of tax. 31. The Orissa High Court in the case of State of Orissa v. Samsuddin Akbar Khan Co., (1975) 35 S.T.C. 179 has considered this question whether gudaku is tobacco or not and came to this conclusion that gudaku came within the definition of "tobacco". I respectfully agree with reasoning of the Orissa High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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