Full Judgment Text
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PETITIONER:
INDIA TOBACCO CO. LTD.
Vs.
RESPONDENT:
THE COMMERCIAL TAX OFFICER, BHAVANIPORE & ORS.
DATE OF JUDGMENT05/11/1974
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
KHANNA, HANS RAJ
GUPTA, A.C.
CITATION:
1975 AIR 155 1975 SCR (2) 612
1975 SCC (3) 512
ACT:
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(Sales Tax Act, 1941, if repealed, with regard to cigarettes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
(Amendment) Act, 1958-Effect of.
HEADNOTE:
Under the Bengal Finance, (Sales Tax) Act, 1941, the
definitions of ’goods and ’dealer’ are very comprehensive
and general, and they cover ’cigarettes’ and a dealer in
cigarettes. Under s. 5 a dealer would be entitled to
purchase free of tax goods required by him for use in the
manufacture of cigarettes Section 23 of the ,rest Bengal
Safes 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 consequence 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, by. substituting the words ’certain notified com-
modities’ for the words ’cigarettes and other commodities.’
The 1958-Act also substituted new ss. 23 and 25 in the 1954-
Act. Under the, new s. 25, the 1954-Act can be made
applicable by a notification only to a commodity ’which is
liable to taxation under the Bengal Finance (Sales Tax) Act,
1941’ and further. the 1941-Act ’shall cease to apply to
such commodity’ and the 1954Act shall apply to such
commodity, only from the date of such notification.
The appellant-company claimed that as a result of the 1958-
Act, the 1941Act 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
and asked the appellant for its registration certificate for
amendment and deletion of exempt-ion. The appellant filed a
writ petition in the High Court, challenging the threatened
action and the writ petition was allowed by a Single Judge.
In L.P. Appeal, the Division Bench of the High Court held
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that the 1954 Act had the effect of completely repealing the
1941-Act, in relation to cigarettes, that the 1958-Act 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 1941-Act,
and that therefore, the appellant was not entitled to any
certificate of registration under the 1941-Act.
Allowing the appeal to this Court.
HELD : (1) The general rule of construction is that the
repeal of a repealing Act does not revive anything repealed
thereby. But the operation of the rule is not absolute and
is subject to the appearance of a ’different intention in
the repealing statute, which may be explicit or implicit.
Repeal connotes abrogation or obliteration of one statute by
another, from the statute book, as completely as it if had
never been passed. When an Act is repealed, it must be con-
sidered (except as to transactions past and closed) as if it
had never existed Repeal is not a matter of form but one of
substance, depending upon the intention of the Legislature.
If the intention was to abrogate or wipe off the former
enactment, wholly or in part, then it would be a case of
total or protan to repeal. If the intention was merely to
modify the former enactment by engrafting an exception or
granting an exemption, or by super-adding conditions, or by
restricting, intercepting or suspending its operation, such
modification would not amount to a repeal. [617D-E, F-H]
613
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.
(2) The High Court was wrong in holding that s. 23 of the
1954-Act repeals the 1941-Act with regard to cigarettes and
that cl. (ii) of its proviso does not save the operation of
a. 5 of the 1941-Act but only makes it a part of the 1954-
Act. The words ’in calculating the taxable turnover under
s. 5 of the said Act’ in s. 23 of the 1954-Act show beyond
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 made, has still
to be done under s. 5 of the 1941-Act. Assuming that cl.
(ii) of the Proviso incorporates by reference, s. 5 of the
1941-Act in a modified form, then also 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]
(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 excepting cigarettes from
its operation. During the interregnums 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 interception 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 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, P-G]
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(b) Further, the 1941-Act was amended by Bengal Act 13 of
1959. In obedience to, the mandate of s. 14 of the Central
Sales Tax Act of 1957, it reduced the rate of tax from 5 np.
in the rupee to 2 % of such part of the taxable turnover of
a dealer under the 1941-Act as represents 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 that after the 1958-
Act, the operation of the 194 1 Act revived in relation to
cigarettes. [621D-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1183 of
1970.
From the judgment and order dated the May 26, 1969 of the
Calcutta High Court in E.M.A. No. 135 of 1961.
A. K. Sen, M. C. Bhandari, D. Pal, P. Mridul and D. N.
Gupta, for the appellant.
B. Sen, P. K. Chatterjee, Leila Seit and G. S. Chatterjee
for the respondent.
The Judgment of the Court was delivered by
SARKARIA, J. Whether the sale of cigarettes after the
enactment of West Bengal Sales Tax (Amendment) Act, 1958
(for short, the 1958 Act) is governed by the Bengal Finance
(Sales Tax) Act 1941 (for short, the 1941 Act) and, as such,
a dealer in the State 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 and other goods
required for use in the manufacture of cigarettes on the
strength of such exemption entered in his registration
certificate, is the only question that falls for
determination in this appeal by certificate granted by the
High Court of Calcutta under Article 133 (1) (a) and (b) of
the Constitution ?
614
The appellant, India Tobacco Co. Ltd. (hereinafter called
the Company) was a ’dealer’ 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.
In 1954, the Legislature of West Bengal enacted the West
Bengal Sales Tax Act, 1954 (for short, the 1954 Act) "to
impose a tax on the sale of cigarettes and other commodities
in West Bengal". The 1954 Act took out cigarettes and a
dealer in cigarettes from the purview of the 1941 Act.
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.
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 among 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,
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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 Special Importance) Act, 1957 (Central Act
58 of 1957). This Act came into force on December 24, 1957.
It declared the aforesaid three classes of goods "to be of
special importance in inter-state trade or commerce".
Further, the 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 bodies all fall under the
description of ’manufactured tobacco’. They have been
subjected to this additional duty of excise at different
rates. Part 1 of the Second Schedule relates to
distribution of these additional duties.
615
In view of the Central Act 58 of 1957, the State Legislature
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 the words "cigarettes
and other commodities" occurring in the preamble of the 1954
Act, the words "certain notified commodities". It further
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 :
"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."
The notifications issued by the State Government from time
to time under s. 25 in respect of "notified commodities" do
not include cigarettes.
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/1/54B, was liable to be cancelled because the
Company ceased to be a dealer as defined in ’,hat 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 Sales-tax authorities of the
State on July 1, 1958, amended the registration certificate
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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, plant
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.
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 substance 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
616
circumstances, it was proposed to delete the amendment which
was made in the registration certificate of the Company
under the 1941 Act on July 1, 1958 by inclusion of
cigarettes and smoking mixtures in the manufacturers’ column
of such certificate. The Company 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 add the Sales-tax
Authorities were not competent to amend the registration
certificate issued under the 1941 Act. These contentions
were rejected by the Commercial Tax Officer who by his
letter of February 2, 1 959 asked the Company again to send
its registration certificate for amendment and deletion of
exemption entry therefrom.
To challenge this action threatened by the Sales-tax
Authorities in their letters of September 8, 1958, September
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.
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 either under the 1941 Act or the 1954 Act, with the
result that the registration 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
"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 a 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
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or smoking tobacco, but in respect of goods
intended for use in the manufacture of ciga-
rettes 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 nothing in the 1958 Act to
take away the right of the Company conferred by the 1941 Act
to claim exemption from sale-tax in respect of goods
purchased for use in the manufacture of cigarettes. In the
result, the learned judge made the Rule absolute and quashed
the impugned notices. He also issued a mandamus-
617
directing the Sales-tax Authorities to forbear from the
cancellation of the endorsement to the registration
certificate of the Company in relation to cigarettes and
smoking mixtures, as made on the 1st July, 1958,
Against the judgment of the learned single Judge, the
Revenue carried an appeal to a Division Bench of the High
Court which accepted the appeal and dismissed the writ
petition.
The ratio of the two separate but concurrent judgments of
the appellate Bench of the High Court-is, that 1954 Act had
the effect of completely repealing the 1941 Act in relation
to cigarettes, and the repeal of 1954 Act in relation to
cigarettes by the 1958 Act, did not revive the operation of
1941 Act in regard to cigarettes on the principle "that the
repeal of a repealing Act does not revive the repealed Act".
Since 1941 Act stood completely obliterated from the statute
book in relation to cigarettes, no sales 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 smoking mixtures is
not entitled to any certificate of registration under the
Act of 1941 as it is neither a dealer within the meaning of
that Act, nor liable to pay sales tax under that Act.
The general rule, of construction is that the repeal of a
repealing Act does not revive anything repealed thereby.
But the operation of this Court is not absolute. it is
subject to the appearance of a "different intention" in the
repealing statute. Again, such intention may be explicit or
implicit. The questions, therefore, that arise for
determination are : Whether in relation to cigarettes, the
1941 Act was repealed by the 1954 Act and the latter by the
1958 Act? Whether the 1954 Act and 1958 Act were repealing
enactments? Whether there is anything in the 1954 Act and
the 1958 Act indicating a revival of the 1941 Act in
relation to cigarettes ?
It is now well settled that "repeal" connotes abrogation or
obliteration 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 C.J. in Kay v. Goodwin(2) and Lord Tenterdon in
Surtees v. Ellison(2) cited with approval in State of Orissa
v. M. A. Tulloch & Co) (3).
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 or wipe off the
former enactment, wholly or in part, then it would be a case
of total or protan to repeal. If the intention was merely
to modify the former enactment by engrafting an exception or
granting an exemption, or by super-adding conditions, or by
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restricting, intercepting or suspending its operation, such
modification
(1) (1830) 6 Bing 576 at p. 582. (2) (1829) 9 B & C 750
at p. 752;.
(3) A.I.R. 1964 S.C. 1284.
618
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); Sutherland’s Statutory Construction 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 superfluities and
reject clearly inconsistent enactments-see Mohinder Singh v.
Mst. Harbhajan Kaur(2).
The ground having been cleared, we now proceed to examine
the effect of the 1954 Act and the 1958 Act on the 1941 Act
in the light of the above principles.
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’ are defined in Clause (d) of s. 2
as "as all kinds of movable property other than actionable
claims, stocks, shares or securities, and includes all
materials and commodities". "Dealer" means "any person who
carries on the business of selling goods in West Bengal and
includes the Government". [s. 2(c)].
The charging provision is in s.4, according to which, every
dealer whose gross turnover during the preceding year
exceeds the taxable quantum shall be liable to pay tax under
this Act on all sales effected by him after the notified
date. Sub-section (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, 50,000 rupees." Section 5 of the 1941 Act prescribes
the rate of tax. Its original sub-section (2) (a) (ii)
reads as under
"(ii) sales to a registered dealer-
of goods of the class or classes specified in
the certificate of registration of such
dealer, as being intended for resale by him or
for use by him in the manufacture of goods for
sale or for use by him in the execution of any
contract; and of containers or other materials
for the packing of goods ,of the class or
classes so specified :
Provided that in the case of such sales a
declaration duly filled up and signed by the
registered dealer to whom the goods are sold
and containing prescribed particulars on a
prescribed form obtainable from the prescribed
authority is furnished in the prescribed
manner by the dealer who sells the goods’
It will be 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) (1955) Cr. L.J. 990.
619
also, and under its s. 5 (a) (ii) a dealer would be entitled
to purchase free of tax goods required by him, for use in
the manufacture of cigarettes.
The (original) 1954 Act, as stated in its preamble, was an
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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. mixtures ready for use in
rolling cigarettes or for use in tobacco pipes, but do not
include bidis.
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 Bengal for the purpose of sale
in West Bengal."
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.
Section 23 of the 1954 Act runs thus
"Nothing in the Bengal Finance (Sales Tax) Act, shall apply
to cigarettes :
Provided that-
(i) the said Act shall continue to apply in
respect of cigarettes sold before the
commencement of this Act and in respect of
sales of such cigarettes subsequent to the
commencement of this Act;
(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."
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.
In our opinion, the issues that arise in this case, cannot
be correctly and completely answered by construing s. 23 of
the 1954 Act in this. manner. We would therefore, defer the
final answers to the questions 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 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,
620
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 Act in a modified form,
then also such incorporation would not per se amount to a
repeal, in the sense of complete obliteration of section 5
of the 1941 Act.
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.
"Nothing in the Bengal Finance (Sales Tax)
Act, 1941 shall apply to a notified commodity
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from the date on which the said commodity is
or was notified under section 25
Provided that-
(i) the said Act shall apply in respect of a
notified commodity sold before the issue of
such notification and in respect of resales of
such notified commodity subsequent to 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."
It also inserted new s. 24A, to the effect
:
"24A. Notwithstanding anything contained in
the West Bengal Sales Tax (Amendment) Act,
1958, this Act shall continue to apply to-
(i) cigarettes sold before the commencement
of that Act, and
(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."
Section 24-A is not very material for this
discussion because the petitioners are a
dealer in cigarettes on which additional
duties are being levied under the Central Act
of 1957.
The 1958 Act further substituted this new
Section 25 for the original Section 25 in the
1954 Act :
"If the State Government is at any time of
opinion that it would be in the public
interest that any commodity which is liable to
taxation under the Bengal Finance (Sales Tax)
Act, 1941, should be taxed under this Act, it
may, by notification in ’the Official Gazette,
specify such commodity;
621
and on and from the date of such notification
the Bengal Finance (Sales Tax) 1941 shall
cease to apply to such commodity and this Act
shall apply to such commodity."
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 taxation under the Bengal Finance (Sales Tax)
Act, 1941," and further, that the 1941 Act "shall cease to-
apply to such commodity", and 1954 Act shall apply to such
commodity, only from the date of such notification.
It is not disputed that cigarettes can be notified as a
taxable commodity under the amended section 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 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 remission 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.
It may further be noted that the 1941 Act was amended by
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Bengal Act 13 of 1953 which was published in the Government
Gazette on October 1959. It inter alia amended 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 turnover
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.
After a conspirator and conjoint reading of the aforesaid
enactments, it seems to us clear that the 1954 Act did not
repeal or obliterate the 1941 Act, but only modified it by
excepting cigarettes from its operation. During the
interregnums 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 interception was removed, the application of
the 1941 Act to cigarettes revived proprio vigore. In any
case, definite indications of such revival are available in
the language and scheme of the 1958 Act and the Bengal Act
13 of 1959.
For reasons aforesaid, we would allow this appeal, set aside
the judgment of the Division Bench of the High Court, accept
the writ petition and restore the decision of the single
Judge of the High Court. There will be no order as to
costs.
V.P.S.
Appeal allowed.
622