Allowed

India Tobacco Co. L1D. v. the Commercial Tax Officer, Bhavanipore & Ors.

Supreme Court5 Nov 19741974 INSC 223 · [1975] 2 S.C.R. 6121974 INSC 223

Case brief

AI extract

What is this about?

Whether the West Bengal Sales Tax Act, 1954 and the 1958 Amendment repealed the Bengal Finance (Sales Tax) Act, 1941 in relation to cigarettes. The Court held the 1954 Act merely modified the 1941 Act by excepting cigarettes, and after the 1958 amendment the 1941 Act revived; the appeal was allowed.

What did the court decide?

Judgment of Division Bench set aside; writ petition accepted and Single Judge's decision restored; no order as to costs.

What the court decided

India Tobacco Co. L1D. versus the Commercial Tax Officer, Bhavanipore & Ors. — Supreme Court (1975) — LawSathi Research

¶1

612

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INDIA TOBACCO CO. L1D.

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THE COMMERCIAL TAX OFFICER, BHAV ANIPORE & ORS.

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November 5, 1974

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[H. R. KHANNA, R. S. SA!ucARIA AND A. C. GUPTA, JJ.]

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Interpretation of statutes-Repeal, nature of-Bengal Finance ·(Sales Tax) Act, 1941, if repealed, with regard to cigarettes by West Bengal Sales Tax Act, 1954-West Bengal Sales Tax (.'4.mendment) A.ct, 1958-EjJect of,

¶10

Under the Bengal Finance (Sales Tax) Act, 1941, the definitions of 'goods' and 'dealer' are very comprehensive and general, and 1hey cover 'clgarettes' and a dealer in cigarettes. Under s. 5(2)(a)(ii), a dealer would be entitled to pur· chase free of tax goods required by him for use in the manufacture of cigarettes. Section 23 of the West Bengal Sales Tax Act, 1954, excepts everything relating to cigarettes from the operations of the 1941-Act, save to the extent indicated in the proviso to that section, which retains the benefit under s. 5(2)(a)(ii) of the 1941-Act. As a conscquen::e of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (Central Act ·58 of 1957), the West Bengal State legislature passed the West Bengal Sales Tax (Amendment) Act, 1958. This Act amended the 1954 Act, hy substitutini the words 'certain notified commodities' for the words 'cigarettes and other commodities.' .Tue 1958-Act also substituted new ss. 23 and 25 in the 1954-Act. Under the new s, 25, the 1954-Act can be made applieabk: by a notification only to a. commodity 'which is liable to taxation under the Bengal Finance (Sales Tax) Act, 1941' and fur· ther, the 1941-Act 'shall cease to apply to such commodity' and the 1954· Act shall apply to such commodity, only from the date of such notification,.

¶11

The appellant-company Claimed that as a result of the 1958-Act, the 1941· Act was applicable to cigarettes and as such it was entitled to the benefit of s. 5(2)(a)(ii) of the 1941-Act and ·that the Sales Tax Authorities were not competent to amend the registration certificate issued to it under the 1941-Act. The Commercial Tax Officer rejected the contention al)d asked the appellant for its registration certificate for amendment and deletion of exemption. The al!Pll· !ant file:d a writ petition in the High Court, challenging the threatened action, and the. writ petition was allowed by a Single Judge.

¶12

In LP. Appeal, the Division Ben.ch of the High Court held that the 1954· Act had the effect of completely repealing the 1941·Act, in relation to cigarettes, that the 1958-AJC! did not revive the operation of the 1941-Act and that since the 1941-Act stood completely obliterated from the statute book in relation to cigarettes, no sales tax would be payable in regard thereto either under 1954-Act or under the 1!~41·Act, and that therefore, the appellant was not entitled to any certificate of registration under the. 1941-Act.

Allowing the appeal to this COurt,

¶18

HELD : ( 1 ) The general rule of construction is that the repeal of a repeal. ing Act does not revive anything repealed thereby. But the operation of the rnle is not absolute and is subject to the appearance of a 'different intention' in the repealing statute, which may lie explicit or implicit Repeal connotes abrogation or obliteration of one statute by another, from the statute book, ascom· pletcly as it if had never been .Passed. When an Act is repealed, it must be considered (excePt as to transactton1 past and closed) 85 if it had never existed. Repeal is not a matter of form but one of substance;, depending UJ><!n the intention of the Legislature. If th• inte11tion was to .abrogate or wipe Off the former enactment, wholly or in part, then it would be a ca'IC of total or pro tanto re· peal. If the intention was mercl:~ to ·modify the former enactment by engraft· ing an exception or granting an e~emption, or by super-adding conditions, or by restricting, intercepting or suspcoding its operation, such modification would not amount to a repeal. [6170-B. F-H]

613

INDIA TOBACCO co. LTD. v. c.r.o. (Sarkaria, /.)

¶23

A Kay v. Goodwin, [1830] 6 Bing 576 at p. 582; Surtees v. Ellison, (1829) 9 B & C 750 at p. 752; State of Orissa v. M. A. Tulloch & Co., A.I.R. 1964 S.C. 1284 and Mount v. Taylor referred to.

¶24

(2) The High Court was wron~ in holding that s. 23 of the 1954-Act repeals the 1941-Act with regard to cigarettes and thllt cl. (ii) of its proviso does not save the operation of s. S of the 1941-Act but only makes it a part of the 1954-Act. The words 'in calcuJating the taxable turnover under s. S of the 8 said Act' in s. 23 of the I954-Act show beyond doubt that the calculation of the taxable turnover from yvhich the deduction of the price of goods sold to a dealer for use in manufacturing cigarettes is to be made, has still to be done under s. S of the 1941-Act. Assmping that cl. (ii) of the Proviso incorporates by reference, s. 5 of the 1941-Act in a modified form, then al'SO such incorporation would not per se amount to a repeal, in the sense of complete obliteration of s. 5 of the 1941-Act. [619F-620A] ·

¶25

(3) (a) A conjoint reading of the 1941, 1954 and 1958-Acts shows that the 1954-Act did not repeal or obliterate the 1941-Act, but only modified it by c excepting cigarettes from its operation. During the interregnum between the enactment of the 1954-Act and the 1958-Act, the operation of the 1941-Act with regard to cigarettes was in a state of mere intercep.tion, and when as a result of the amendment made by the 1958-Act, that exception or infercePlion was removed, the application of the 1941-Act to cigarettes revived proprio vigore. After the 1958-Act, cigarettes could be. notified under the amended s. 25 of the 1954 Act. It necessarily implies that the 1941-Act would cease to apply to cigarettes only when the requisite notification in respect thereof under D s. 25 of the 1954-Act is issued. If such a notification were issued and later on rescinded, such rescission would revive the application of the 1941-Act. The position would be the same, as in the present case, if a notification under s. 25 specifying cigarettes as a taxable commodity was not at all issued. [621C-D, 1:'-Gl .

¶26

(b) Further, the 1941-Act was amended by Bengal Act 13 of 1959. In obedience to. the mandate of s. 14 of the Central Sa1es 'tax Act of 1957, it reduced the rate of tax from S np. in the rupee to 2 % of such part of the taxable E turnover of a dealer under the 1941.,Act as represe11ts sale of goods (including manufactured tobacco and cigarettes) referred to in s. 14 of the Central Act. This amendment of the 1941-Act, effected in 1959, also indicates t1iat after the 1958-Act, the operation of the 1941-Act revived in relation to cigarettes. [6210-F]

¶27

CIVIL APPELLATE JURISDICTION: Civil Appeal ·No. 1183 of 1970-

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From the judgment ru:id order dated the May 26, 1969 of the Calcutta High Court in E.M.A. No. 135 of 1961.

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F A. K. Sen, M. C. Bhandari, D. Pal, P. Mridul and D. N. Gupta, for the appellant.

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B. Sen, P. K. Chatterjee, Leila Seit and G. s. Chatterjee for the respondent. ·

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The Judgment of the Court was delivered by

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SARKARIA, J. Whether the sale of cigarettes after the enactment of G West Bengal &ales Tax (Amendtp.ent) Act, 1958 (for short, the 1958 Act) is governed by the Bengal Finance (Sales Tax)· Act 1941 (fpr short, the 1941 Act) and, as such, a dealer in the Sta:te of West Bengal is entitled to the benefits under s. 5(2) (a) (ii) of the 1941 Act in making purchases free of sales-tax of raw material Md other goods required for use in the manufacture of cigarettes on the strength of ~ch examption entered iB his registration: ceriliicate, is the onfy question .. H that falls for determination in this appeal by cerµticate gnmted by tho High Court of Calcuita under A.Jtjcfe-13l(1)(a.) a.ad- (b). · of tlacl Constitutioa 'l

¶33

[1975] 3 S.C.R.

¶34

SUPREME COURT REPORTS

¶35

614

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¶37

The appellant, India Tobacco Co. Ltd. (hereinafter called the Company) was a 'deoaler' within the meaning of 1941 Act carrying on the business of manufacture and sale of cigarettes and smoking tobacco. It obtained the registration certificate No. BH/67B under that Act, and on its basis, became entitled to exemption under s. 5 (2)(a) (ii) from payment of sales tax on goods purchased by it for use in the manufacture of cigarettes.

¶38

In 1954, the Legislature of West Bengal enacted the West Bengal Sales Tax Act, 1954 (for shor:t, the 1954 Act) "to impose a tax on the sale of cigarettes an~ other commodities in West Bengal". The 1954 Act took out cigarettes and a de>aler in cigarettes from the purview of the 1941 Act.

¶39

The Company got itself registered under the 1954 ACt and its registration certificate which it had obtained under the 1941 Act was amended and cigarettes were excluded therefrom. By virtue of the provisions of s. 23 of 1954 Act, however, the Company continued to avail of the benefit under s. 5(2) (a) (ii) of the 1941 Act with regard to purchases of goods required for use in the manufacture of cigarettes.

¶40

In 1957, the Government of India in consultation with the State Governments, decided that an additional duty of excise should be levied on mill-made textiles, sugar and tobacco including manufactured tobacco in replacement of the sales-tax then levied by the State Governments, the net proceeds being distributed runong the States subject to the then income derived by each of the States being assured to it. Before undertaking the necessary legislation for the levy, the President of India made a reference to the Second Finance Commission requesting it to make recommendations as to the principles which should govern the distribution of the net proceeds of this additional duty among the States. Broadly, the recommendation of the Finance Commission was that the States levying a tax under their State Laws on the sale or purchase of sugar, tobacco and mill-made textile after April 1, 1958 would not be entitled to participate in the distribution of the net proceeds of this additional duty. In accordance with the recommendations of the Finance Commission, Parliament enacted the Additional Duties of Excise (Goods of pecial Importance) Act, 1957 (Central Act 58 of 1957). This Act c:ame into force on December 24, 1957. It declared the aforesaid three d'l!sses of goods "to be of special importance in inter-state trade or commerce". Further, th proviso to para. 1 (b) (iii) of the Second Schedule appended to the said Act, gave effect to the recommendation of the Finance Commission with regard to· the distribution of additional duties among the States. Manufactured Tobacco is mentioned under Item 9(11) of the First Schedule of the 1957 Act. It further indicates that cigarettes, cigars, cheroots and bidies all fall under the description of 'manufactured tobacco'. They have been subjected to this additional duty of excise at different rates. Part I of the Second Schedule relates to distribution of these additional duties.

INDJA rosAcco oo. LTD. v. c.r.o: (Sarkaria, /.) · 61 s

¶47

In view of the Central Act 58 of 1957, the State Le8islature passed the 1958 Act. · It received the assent of the President and was thereafter published in the Calcutta Government Gazette on March 30, 1958. It amended .the 1954 Act. The 1958 Act, substituted for 'flie words "cigarettes and other commodities" occurring in the preamble of the 1954 Act, ,the words "certain notified commodities". It further B replaced the word "cigarettes'', wherever. it occurred in the 1954 Act, by the' words "notified commodities". The 1958 Act substituted a new Section 23 for the original Section 23 of the 1954 Act. The . new Section provided that nothing in the 1941 Act shall apply to notified · commodity'from the date on which the said commodity is or was notified under s. 25 of the 1954 Act as amended by the 1958 Act. Clause (ii) of the Proviso in this new Section 23 provided that : .

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"the price of goods sold to a dealer for use by such dealer for manufacturing, making, processing . or packing notified commodities shall be deducted . in calculating the taxable turnover under section 5 of the Bengal Fiilance (Sales Tax) Act, 1941." ·

¶50

rile notifications issued by the State Government from time to time D under s. 25 in respect of "notified commodities" do not include cigarettes.

¶51

Having regard to the enactment of 1958 Act, the Company wrote to the Commissioner of Commercial Taxes, West Bengal, Respondent No. 3, on April 11, 1958, stating that the registration certificate granted to it under the 1954 Act, bearing No. BH/l/54B, was liable to be E cancelled because the Company ceased to be a dealer as defined in . that Act.- It was further contended that the Company as a manufacturer of cigarettes and smoking tobacco was entitled to have its· re-gistration certificate under the 1941 Act suitably amended in order to enable it to purchase. free of tax goods required for use in the manufacture of cigarettes and smoking mixtures· in accordance with the proviso to s. 5 (2) (a) (ii) of the 1941 Act. Then, the Soales-tax authorities F of the State on July 1, 1958, amended the registration certificate of the Company under the 1941 Act specifying cigarettes and smoking mixtures as the goods for the manufacture of which it was entitled to purchase free of tax raw material, p!oant and machinery. This certificate was further amended by the authorities on July 25, 1958 to include certain .materials under the heading 'consumable stores' which it could· purchase tax-free.

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On July 30, 1958, the Company wrote to the Additional Commissioner of Commercial. Tax (Res. No. 2) requesting him to confirm that it was .not liable to pay tax or to file returns either under the 1954 Act or under the 1941 Act. As a consequence, the Additional Commissioner and Commercial Tax Officer, Bhavanipore wrote letters dated September 8, 1958 and September 22, 1958, respectively. The subsH tance of these letters was that from December 24, 1957, a dealer or a manufacturer in cigarettes was not liable to pay any sales-tax under the 1941. Act or under the 1954 :Act and was not entitled to benefits of registration certificate under either of the said Acts and that, in the-

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[1975) 3 S.C.R.

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SUPREMI! COU!tT REPORTS

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616

¶58

circumstances, it was proposed to delete the amendment which was made in the registration certificate of the Company under the 1941 Act on July l, 19 5 8 by inclusion of cigarettes and smoking mixtures in the manufacturers' column of such certificate. The ComP'any wrote back on October 31, 1958 contending that the 1941 Act was applicable to cigarettes, and as such, it was entitled to the benefit of s. 5 (2) (a) (ii) of the 1941 Act and the Sales-tax Authorities were not competent to amend the registration ccrtific•ate issued under the 1941 Act. These contentions were rejected by the Commercial Tax Officer who by his Jetter of February 2, 1959 asked the Company again to send its registration certificate for amendment and deletion of exemption entry therefrom. ·

¶59

To challenge this action threatened by the S•ales-tax Authorities in their letters of September 8, 1958, S::ptember 22, 1958 and February 2, 1959, the Company filed a writ petition in March 1959 in the High Court of Calcutta under Article 226 of the Constitution.

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·On behalf of the Sales-tax Authorities, it was contended before the learned Single Judge, who tried the writ petition, that 'after the enactment of Central Act of 1957 and 1958 Act, cigarettes no longer formed the subject matter of tax i:ither under the 1941 Act or the 1954 Act, with the result that the regiistration certificate in respect of ·cigarettes under those Acts became a nullity and the exemption granted in respect of the purchase of goods required for the manufacture of cigarettes under the registration certificate issued under the 1941 Act was incompetent. The learned Single Judge negatived this contention thus :

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"In my opinion, this is based on an incorrect reading of the law. As will appear from the delineation of the law above mentioned, the provisions contained in section 5 (2) (a) (ii) of the Act, affected a dealer who sold goods to 11. registered dealer, as being intended for use by him in" the manufacture of goods for sale, and there was a corresponding benefit conferred upon the purchaser; who being a registered dealer acquired the benefit of not having to pay sales tax, when he purchased goods from another dealer for such purposes. The second thing to be borne in mind is that this exemption is not in respect of cigarettes or smoking tobacco, but in respect of goods intended for use in the manufacture of cigarettes •and smoking tobaccos, which is a different thing altogether."

The learned Judge further held that cigarettes which became the subject of the Central Act :58 of 1957, did not find any place in the 1958 Act which took away cigarettes from the scope of 1954 Act and there was Mthing in the 1958 Act to take away the right of the Company conferred by the 1941 Act to claim exemption from sale· tax in resoect of goods purchased for use in the manufacture of cigarettes. In the result, the learned Judge made the Rule iabsolute and quashed the impugned notices. He also issued a mandamus

¶70

INDIA TOBACCO co. LTD. v. C.T.O. (Sarkar'· /.)

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617

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/};

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directing the Safos-tax Authorities to forbear from the cancellation of th~ enklorsement to the registration certificate of the Company in re. lation to cigarettes and smoking mixtures as made on the 1st July 1958. . ' '

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~gainst the judgment of the learned single Judge, the Revr.nue B earned an appeal to a Divisiol). Bench of the. · High Court which accepted the appeal and dismissed the writ petition.

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The ratio' of the two sepafate but concurrent judgments of the appellate Bench of the High Court Is, that 1954 Act had the effect of completely repe•aiing the 1941 Act in relation to· cigarettes, and the repeal of 1954 Act in relation to cigarettes by the 1958 Act, did not c revive the operation of 1941 /Act in regard to cigarettes on the principle "that the repeal of a repealing Act does not rev; the repealed Act". Sipce 1941 Act sto,od completely obliterated ft um the statute book in relation to cigarettes, no !ill~s tax would be payable in regard thereto either under the 1954 Act\or under the 1941 Act. Upon these premises it was held that the Company as a dealer in cigarettes and smdking mixtures is not entitled to any certificate of registration D under t}le Act of 1941 as it is neither a dealer within the meaning of tllat Acr, nor liable to pay S'ales tax under that Act.

¶77

¶78

TM general rule of construction is that the repeal of a repealing Act d9es not revive anything repealed thereby. But the operation of th1~ Court is not absolute. It is subject to the appearance of a · "differ nt intention" in the repealing statute. Again, such intention may . explicit or implicit. The questions, therefore, that arise for E deterdiination are : , Whether in relation to cigarettes, the 1941 Act was r~pealed by the 1954 Act and the latter by the 1958 Act? Whether the 1954 Act and 1958 Act were repealing enactments? Whether there is anvthing in the 1954 Acf and the 1958 Act indicating a revival of the 1941 Act in relation to cigarettes ?

¶79

It is now well settled that "repe'al" connotes abrogation or obliteF ration of one statute by another, from the statute book as completely "as if it had never been passed"; when an Act is repealed, "it must be considered (except as to transactions past and closed) as if it had never existed". (Per Tindal CJ. in Kay v. Goodwin(") and Lord Tenterdon in Surtees v. Ellison(² ) cited with approval in State of Orissa v. M. A. Tulloch & Co) (3).

¶80

G Repeal is not a matter of mere from but one of substance, depending upon the intention of the Legislature. If the intention, indicated expressly or by necessary implication in the subsequent statute, was to abrogate ot- wipe off the former enactment, wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former· enactment by engrafting ari exception or granting an exemption, or by super-adding conditions, or by resH tricting, . intercepting or suspending its operation, such modification

¶81

(1) (1830) 6 Bing 576 at p. 582. (2) (1829) 9 B & C 750 at p. 752;. (3) A.J.R. 1964 S.C. 1284.

¶82

[1975] 3 S.C.R.

¶83

SUPl.EME COURT REPORTS

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018

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¶86

would not amount to a repeal (see Craies on statute Law, 7th Edn. pp. 349, 353, 373, 374 and 375; Maxwell's Interpretation of Statutes, 11th Edn. p. 164, 390 based on Mount v. Taylor(¹ ); Southerland's Statutory C.Onstruction 3rd Edn. Vol. I, Paragraphs 2014 and 2022 pp. 468 and 490). Broadly speaking, the principal object of a Repealing and Amending Act is to 'excise dead'matter, prune off super· fiuities and reject clearly im:onsistent enactments-see Mohinder Singh v. Mst. Harbhaian Kaur(² ).

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'J'bc 'ground having been cleared, we now proceed to examine the effect of. ibe f954 Act and the 1958 Act on tbe 1941 Act in the light of the above principles.

¶89

We will start with the 1941 Act. The preamble indicates that its purpose is to impose a general tax on the sale of goods in Bengal. 'Goods' arc defined in Oause (d) of s. 2 as "as all kinds of movable property other than actionable claims, stocks, shares or securities, and mcludes all ,~als and c1>mmoQities". · "Dealer" means "any person who carries ~, ibe business of selling goods in West Bengal and incl\14es the Oovemment". [s. 2(c)].

¶90

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¶92

~ clmrgin,g provision is in s.4, a~rding to which, every dealer Whb:'.e gross turnover during the preceding year exceeds the taxable qmmtum shall be liable to pay tax under this Act on all sales effected by him after the nqtified date. Sub-tion ( 5) of s. 4 defines "taxable quantum" to mean "in relation to any dealer who imports for sale any goods into West Bengal or manufactures or produces any goods for sale, 10,000 rupees "and" in relation to any other dealer, 5,0,000 rupees." Section 5 of the 1941 Act prescribes the rate of tax. Its original subection (2) (a) (ii) reads as under : ,

¶93

"(ii)salesto a registereddealer-
ofgoodsoftheclassor classesspecifiedinthe certificate of registration of such dealer,asbeing intended for re-sale
by him or for,use byhimin the manufacture ofgoodsfor sale or foruseby.himinthe execution of any'COntract;and
of containers or other materials for the paeking ofgoods
of the class orclassessospecified:

¶94

Provided that in the case of such sales a declaration duly filled up and signed by the registered dealer to whom the goods are s9ld and containing prescribed particlj!ars on a prescribed form obtainable from the prescribed authority is furnished in the prescribed manner by. the dealer , who sells the goods,I'

¶95

It will l1e seen that the definitions of "goods" and "dealer" in 1941 Act are very comprehensive and general. It is not disputed that the wide definitions would cover 'cigarettes' and a dealer in cigarettes. Considered alone, the 1941 Act would take in its sweep cigarettes, (1) (1868) L.R. 3 C.P, 645; (2) (19SS) Cr. L.J. 990.

INDIA TOBACCO co. LTD. v. C.T.O, (Sarkaria, J.) 619

¶101

A also; and under its s. S(a)(ii) a dealer would be entitled to purchase free of tax goods required by him for use in the manufacture of cigarettes.

¶102

The (original) 1954 Act, as stated in its preamble, was an Act "to impose a tax on the sale of cigarettes and other commodities" in West Bengal. As defined ,in its s.2(a), "cigarettes" include smoking. 8 mixtures ready for use in rolling cigarettes or for use in tobacco pipes, but do not include bidis.

¶103

¶104

Under Clause (b) of the same section, "dealer" means "any person who sells cigarettes manufactured, made or processed by him in West Bengal, or brought by him into West Bengal from any place outside West Be!lgal for the purpose of sale in West Bengal.''

¶105

Clause 2 ( e) defines "turnover." Section 4 provides that every dealer shall pay a tax at the date of three per centum of his turnover. Section 5 requires dealers under the Act to obtain registration certificate.

¶106

Section 23 of the 1~54 Act runs thus :

¶107

0 '~Nothing in the Bengal Finance (Sales Tax) Act, shall apply t()o cigarettes :

¶108

Provided that-

¶109

(i) the said Act shall continue to apply in respect of cigarettes sold before the commencement of this Act

¶110

E and in respect of sales of such cigarettes subsequent to the comlliencement of this Act;

¶111

(ii) the price of goods sold to a dealer as defined in this Act for use by such dealer in manufacturing, making or processing cigarettes shall be deducted in calculating the taxable turnover under s. 5 of the said Act."

¶112

F The Division Bench of the High Court has held that this section repeals the 1941 Act with regard to cigarettes, and that clause (ii) of the above Proviso does not save the operation of s. 5 of the 1941 Act but only makes that provision a part of the 1941 Act.

¶113

In our opinion, the issues that arise in this case, cannot be correctly :;tnd completely answered by construing s. 23 of the 1954 Act in this: manner. We would therefore, defer the final answers to the questions G posed till the conjoint survey of 1954 Act, 1958 Act and other relevant enactments, is complete. Suffice it to say, now, on an analysis. of s. 23 of the 1954 Act, that it excepts everything relating to cigarettes from the operation of 1941 Act, save to the extent indicated in ·the Proviso. We are not persuaded that clause (ii) of the Proviso does not save anything in section 5 of the 1941 Act. The words "in calculating the taxable turnover under s. 5 of the said Act" in this clause H are a clincher. They show beyond all manner of doubt that the calculation of the taxable turnover from which the deduction of the price of goods sold to a dealer for use in manufacturing cigarettes is to be·

¶114

[1975] 3 s.c.R.

¶115

SUPREME COURT REPORTS

¶116

~20

¶117

¶118

made, has still to be done under s. 5 of the 1941 Act. Assuming that clause (ii) of the Proviso incorporates, by reference, section 5 of the 1941 Ac.t in a modified form, then also such incorporation would not per se amount to a r~peal, in the sense of complete obliteration of section 5 of the 1941 Act.

¶119

We will now take up 1958. This Act amended the 1954 Act In the preamble of the 1954 Act, for the words "cigarettes and other commodities", it substituted the words "certain notified commodities". Further, for the word "cigarettes", wherever occurring in the 1954 Act, it substituted the words "notified commodities". For the original section 23, it substituted this new Section 23.

¶120

¶121

"Nothing in the Bengal Finance (Sales Tax) Act, 1941 shall apply to a notified commodity from the date on which the said commodity is or was notified under section 25 :

¶122

¶123

Provided that-

¶124

(i) the said Act shall apply in respect of a notified commodity sold before the issue of s9ch notification and in respect of re-sales of such notified commodity subsequent fo the issue of such notification; (ii) the price of goods sold to a dealer for use by such dealer for manufacturing, making, processing or packing notified commodities shall be deducted in calculating the taxable turnover under section 5 of the Bengal Finance (Sales Tax) Act 1941."

¶125

It also inserted new s. 24A, to the effect:

¶126

¶127

¶128

"24A. Notwithstanding anything contained in the West Bengal Sales Tux (Amendment) Act, 1958, this Act shall continue to apply to--

¶129

(i) cigarettes sold before the commencement of that Act, and

¶130

¶131

(ii) cigarettes in respect of which no additional duties of excise have been levied under the Additional Duties of Excise (Goods of Special Importance), Act, 1957 as if that Act had not been passed."

¶132

Section 24~A is not very material for this discussion because th1: petitioners are a dealer in cigarettes on which additional duties are being levied under. the Central Act of 1957 .

¶133

•

¶134

¶135

The 1958 Act· further substituted this new Section 25 for the original Section 25 in the 19 5 4 Act :

¶136

"If the State Government is at any time of opinion that it would be in the public interest that anr commodity which is liable to taX'ation under the Bengal Furance (Sales Tax) Act, 1941, shodd be taxed under this Act, it may, by notification in the Offi.cial Gazette, specify such commodity;

¶137

¶138

INDIA TOBACCO co. LTD. v. C.T.O. (Sarkaria, !.) 621

¶139

A and on and from the date of- such notification the Bengal Finance (Sales Tax) 1941 shall cease to apply tO such com-· modity •and this Act shall apply to such commodity."

¶140

An analysis of this Section 25 would show that the 1954 Act (as amended by the 1958 Act) can be made applicable by a notification under this section, only to a commodity "which is liable to taxa8 tion upder the Bengal .Finance (Sales Jlax) Act, 1941," and further, that the 1941 Act."shall ~ease t!) apply to such commod_ity'', and 1954 Act shall apply to such commodity, only from the date of such notification. ·

¶141

It is not disputed that cigarettes can be notified as a taxable commodity under the amended ·section 25 of the 1954 Act. It necessac rily implies thatthe 1941 Act would cease to apply to cigarettes, only when the requisite notification in respect thereof under s. 25 of the 1954 Act is issued. There can be little doubt that if such a notification were to be issued and later on rescinded, such recission would revive the application of the 1941 Act. The position would be the same, if, as in the present case, no notification under s. 25 specifying cigarettes as a taxable commodity was at all issued.

¶142

¶143

It may further be noted that the 1941 Act was amended by Bengal Act 13 of 1953 'Which was published in the Government Gazette on OCtober 1959. It inter al!a- ap!ended s. 5 of the 1941 Act and prescribed different rates of tax. In ·obedience to the mandate of s.14 ·of the .Central Sales Tax Act of 1957, it reduced the rate of tax from 5 N.P. in the rupee to 2 per centum of such part of the taxable turnE over of a dealer under the 1941 Act as represents sales of goods (including manufactured tobacco, cigarettes) referred to in s. 14 of the aforesaid Central Act. This amendment of the 1941 Act, effected in 1959, also indicates that after the 1958 Act, the operation of the 1941 Act revived in relation to cigarettes.

¶144

After a conspectus and conjoint reading of the aforesaid enactF ments, it seems to us clear that the 1954 Act did not repeal or obliterate the 1941 Act, but only modified it by excepting ci!!arettes from its operation. During the interregnum between the enactment of the 1954 Act and the 1958 Act, the ·operation of the 1941 Act with regard to cigarettes was in a state of mere interception, and when. as·, a result of the amendment made by the 1958 Act, that exception or interceptior... was removed, the application of the 1941 Act to cigarettes G revived proprio vigore. In any case, definite indications of -such revival are available in _the language arid scheme of the 1958 Act and the Bengal Act _13 of 1959.

¶145

For ·reasons aforesitid, we would allow this appeal, set aside the judgment of the Division Bench of the High Court, accept the writ pctitiQn and restore the decision of the ·single Judge of the High Court. There will be no order as·to costs. ·

¶146

¶147

V.P.S.

¶148

Appeal allow1d.

India Tobacco Co. L1D. v. the Commercial Tax Officer, Bhavanipore & Ors.

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India Tobacco Co. L1D. v. the Commercial Tax Officer, Bhavanipore & Ors.

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