DR.B.P.SARAF,J. - (1.) THE petitioner, a registered partnership firm, runs an oil -mill at Warora in district Chandrapur and manufactures vegetable oil and oil -cakes for sale. It is registered as a dealer, both under the Bombay Sales Tax Act, 1959 and the Central Sales Tax Act, 1956.
(2.) OIL -cakes fall under entry 13, Part I of Schedule C to the Bombay Sales Tax Act and sales and purchase thereof in the State of Maharashtra are taxable at the rate of 2 per cent. Entry 13 is reproduced below : 'Sl. Description of goods Rate of Rate of Period of No. sales tax purchase tax operation 13 Oil -cakes 2% 2% July 1, 1981 to -date' By a notification dated July 24, 1981, issued under section 41 of the Bombay Sales Tax Act, the State Government exempted all sales of oil -cakes including oil -cakes for the purpose of cattle feed within the State of Maharashtra from payment of whole of tax payable under the provisions of the Act. The said notification is set out below : 'Finance Department Sachivalaya, Bombay, December 28, 1959. Bombay Sales Tax Act, 1959. No. STA. 1059 -(iii) -G -I. - In exercise of the powers conferred by section 41 of the Bombay Sales Tax Act, 1959 (Bom. LI of 1959), the Government of Bombay hereby exempts from the payment of tax, to the extent specified in column 3 of the Schedule hereto appended, the classes of sales or purchases specified in column 2 thereof, on the conditions, if any, specified against each of such classes of sales in column 4 of the said Schedule. Serial Classes of sales Exemption Conditions G.N.F.C. No. No. or purchases whether of and date and whole or duration part of tax 154. Sales of oil -cakes Whole of Nil G.N.F.D. No. STA including oil -cakes tax 1081/232 -RES -8, used as cattle feed dated the June 25, within the State of 1981 and G.N.F.D. Maharashtra. No. STA/1081/300/ RES -8 dated the July 24, 1981. July 1, 1981 to date.' Thus, by the aforesaid notification all sales of oil -cakes in the State of Maharashtra were exempted from tax under the Bombay Sales Tax Act. That being so, according to the petitioner, no sales tax could be levied on the inter -State sales of oil -cakes by virtue of the provisions contained in section 8(2A) of the Central Sales Tax Act. However, to avoid any dispute in future, the petitioner made an application to the Deputy Commissioner of Sales Tax, Nagpur Division, seeking the determination of tax payable on oil -cakes sold by it in the inter -State trade in view of the aforesaid notification. It may be mentioned herein that section 52 of the Bombay Sales Tax Act provides for determination of the disputed questions including a question whether any tax is payable in respect of any part of the sale or purchase. The Deputy Commissioner examined the dispute referred to him and came to a conclusion that the oil -cakes being fully exempted from tax under the Bombay Sales Tax Act by virtue of notification dated July 24, 1981, issued by the Government of Maharashtra under section 41 of the Act, sales of such goods made in the course of inter -State trade also would not be liable to tax in view of section 8(2A) of the Central Sales Tax Act. This order was, however, set aside by the Additional Commissioner of Sales Tax in exercise of suo motu power of revision by his order dated April 26, 1984. The Additional Commissioner of Sales Tax was of the opinion that as in a hypothetical case if a dealer purchases oil -cake from unregistered dealer and despatches the same to his branches outside the State, such purchases would be liable to purchase tax under section 13 of the Act, it cannot be said that oil -cake as a commodity as such is wholly exempted under the Bombay Sales Tax Act by virtue of the notification in question. He, therefore, held that inter -State sales of oil -cakes were not exempted under section 8(2A) of the Central Sales Tax Act. Against the order of the Additional Commissioner the petitioner preferred an appeal before the Maharashtra Sales Tax Tribunal. The Tribunal upheld the order of the Additional Commissioner. It was also of the opinion that as under the notification under section 41, sales of oil -cakes were only exempt, without mentioning anything about the tax on purchases thereof, it could not be termed as a general exemption which will attract section 8(2A) of the Central Sales Tax Act. The petitioner has challenged the aforesaid order of the Tribunal by filing this writ petition. The contention of the petitioners is that under the Bombay Sales Tax Act, tax is leviable on the sales of oil -cakes by virtue of its inclusion in Schedule C to the Act under item 13. There is no provision for levy of purchase tax as such. Section 13 of the Act to which reference has been made in the order of the Tribunal simply provides for levy of a purchase tax on the turnover of certain purchases of goods specified in Schedule B or C only when a dealer, who is liable to pay tax under the provisions of this Act, purchases the same from a person or Government who or which is not a registered dealer implying thereby that the purchases are made without payment of tax, and uses them for purposes which may not attract the levy of sales tax in his hands on such goods. This, in fact, is a provision enabling the State to realise tax in certain specific circumstances from dealers liable to pay tax under the Act who make purchases of taxable goods without payment of sales tax for certain uses and later utilise the same for other purposes. Section 13 presupposes liability to pay sales tax under the Act. It does not apply in case of goods, the sales of which are totally exempt from sales in the State under the provisions of the Act, because in such cases it does not make difference as to from whom the purchases are made as in any event they are not liable to sales tax.
(3.) THE petitioner submits that on a proper interpretation of the notification exempting oil -cakes from whole of tax on all sales in the State, it is abundantly clear that the present case falls within the express language of section 8(2A) of the Central Sales Tax Act and, as such, the inter -State sales of oil -cakes will be exempt.;