HIGH COURT OF KERALA
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(1.)S.4 of General Sales Tax Act, 1125, reads:
4. Application of the Act: The provisions of this Act shall not apply to the sale of electrical energy & any goods other than toddy, arrack and foreign liquor including Indian made foreign liquor on which duty is or may be levied under the Travancore or Cochin Abkari Act, or the Travancore Cochin Prohibition Act, 1950 or the Madras Prohibition Act 1937 as in force in the Malabar District referred to in sub-s.(2) of S.5 of the States Reorganization Act, 1956 or the Travancore or Cochin Opium Act, or the Opium Act, 1878 (Central Act I of 1878).
(2.)So spirituous medicinal preparations were not goods relating to which sales tax could be imposed under the General Sales Tax Act. The Cochin Abkari Act in so far as it imposes duty on spirituous medicinal preparations must be deemed to have been repealed by the Medicinal and Toilet Preparations (Excise Duties) Act, 1955. S.21 of that Act provides:
21. Repeals and savings: If, immediately before the commencement of this Act, there is in force in any State any law corresponding to this Act, that law is hereby repealed:
Provided that all rules made, notifications issued, licences or permits granted, powers conferred under any law hereby repealed shall, so far as they are not inconsistent with this Act, have the same force and effect as if they had been respectively made, issued, granted or conferred under this Act and by the authority empowered hereby in that behalf.
This latter Act came into force in the year in question on 1-4-1957 and has replaced those provisions in the Cochin Abkari Act which provided for imposition of duty on spirituous medicinal preparations. S.7 of the Travancore Cochin Interpretation and General Clauses Act, 1125 says:
7. Where any Act repeals and reenacts, with or without modification any provision of a former enactment, then reference in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provision so reenacted.
In view of this provision in S.7 of the Travancore Cochin Interpretation and General Clauses Act, the reference in S.4 of the General Sales Tax Act must be taken to be to the Medicinal and Toilet Preparations (Excise Duties) Act, 1955. In that view, there cannot be any imposition of sales tax on the sale of the goods, the turnover relating to which has been dealt with by Exts.P 1, P 2 and P 3 orders. These orders held that no tax is impossible on the goods for the years 1957-58, 1958-59 & 1959-60. But there was a suo motu revision after notices, Exts. P4, P5 and P6 for the three years to which the assessee filed a reply, Ext. P 7. Notwithstanding the reply, by Ext. P8 order passed by the Deputy Commissioner of Agricultural Income Tax and Sales Tax, Central Zone, Ernakulam, sales tax was imposed. In the light of what is stated above, no sales tax can be imposed on this commodity which would admittedly fall under the term spirituous medicinal preparations. I therefore quash Ext. P 8. I direct the parties to bear their costs.
(3.)make it clear that the orders, Exts. P 1 to P 3 in so far as they impose sales tax on the turnover relating to other commodities than that dealt with in Ext. P 8 will stand unaffected by this order.
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