Masodkar, J. - (1.) By this petition, the petitioner, who deals in oil extraction and runs his business in the name and style of M/s. Laxmi Oil Mills, questions the validity and legality of the general sales tax imposed for the years 1971-72 and 1972-73, as well the penalty for non-return in those years.
(2.) Before we turn to the controversy, the admitted facts may be stated. Petitioner extracts oil at the mills by mechanical process using for that purpose groundnut and linseed. The oil so extracted is put to sale by the petitioner. It is not in dispute that thus he is a "dealer" for the purpose of Bombay Sales Tax Act, 1959 (hereinafter called the Act). For the relevant period, i.e. for the year 1971-72 and 1972-73, upon the admitted turnover, the petitioner has been assessed to pay sales tax under Entry 6-A of Schedule Din the sum of Rs. 436.98 and Rs. 559.03 respectively. Under section 36 of the Act, he has been asked to pay the penalty after giving due notice of Rs. 110 and Rs. 150, respectively, for those two years. It is not disputed before us that no returns were filed by the petitioner for those two years. Similarly, it is not in dispute that the petitioner has been heard after giving the show cause notice before the levy of the said penalty.
(3.) Two questions are urged by the learned counsel Mr. Natu in support of the petition. Firstly, it is contended that upon true construction of Entry 6A in Schedule D, oil extracted from linseed and groundnut would not be "vegetable non-essential oil" and as such the demand and assessment is not authorised. It is urged that the policy underlying the provisions of section 5 to section 10, along with Schedules A to E, indicate legislative intent to exempt from the impost of sales tax or even the general sales tax sales of items of food-stuffs. This policy would be furthered if edible oil being an article of food-stuff used for human consumption should be deemed to be excluded from the terms of Entry 6A by descriptive specific adjective preceding "oil". The word "nonessential", according to the learned counsel, has a reference to items essential for human consumption. In other words, vegetable oils, which are edible, are not within the scope of Item 6A of Schedule D. Thus the first part of the submission is based on this type of approach wherein "essential" is tried to be equated with "edible". Secondly, it is submitted that though show cause notice and opportunity was given, the order imposing the penalty cannot be sustained as no grounds are disclosed as to why the penalty is being levied. It is submitted that it is a non-speaking order and as such the same is vitiated.;