STATE OF ORISSA Vs. BHAGWAN DAS VITHALDAS CUTTACK
LAWS(ORI)-1973-6-1
HIGH COURT OF ORISSA
Decided on June 01,1973

STATE OF ORISSA Appellant
VERSUS
BHAGWAN DAS VITHALDAS CUTTACK Respondents

JUDGEMENT

R.N.MISRA, J. - (1.) THE following question has been referred under section 24 (1) of the Orissa Sales Tax Act (hereinafter referred to as the Act) for our determination : " Whether, in the facts and circumstances of the case, ornaments decorated with filigree works are taxable at 2 per cent. as per serial No. 1 or at the rate of 7 per cent. as per serial No. 32 of the schedule of taxable goods ?" This question is common to the two references and in view of the fact that the second appeals and the reference applications were heard together and one set of arguments was advanced before us, we propose to answer the question by this common judgment for both the references.
(2.) IN exercise of powers vested in the State Government under section 5 (1) of the Act, the notification dated 30th December, 1957, has been made fixing the rate of tax payable by a dealer on account of sale of goods specified in column (2) of the schedule attached to the said notification. Serial Nos. 1, 3-F and 32 of that schedule are material for the purposes of these references. Those entries are as follows : ---------------------------------------------------------------------- "sl. No. Description of goods Rate of fax (1) (2) (3) ---------------------------------------------------------------------- 1. Bullion and specie, ornaments and other articles made thereof Two per cent. 3-F. Ornaments of personal wear made of gold and silver without any addition of precious stones, namely, diamonds, emeralds, rubies, real pearls and sapphires Two per cent. 32. Ornamental metal-ware with enamelled or carved designs and gold and silver filigree (other than those falling under serial No. 3-F ). Seven per cent.---------------------------------------------------------------------- A little historical data relating to the entries under these various serials may now be indicated. The rate of tax was one per cent. in respect of serial No. 1 from 1st January, 1958, till 31st March, 1966. With effect from 1st April, 1966, the rate was enhanced to two per cent. The entry itself was omitted by a notification of 27th April, 1970, which became effective from 15th May, 1970. Serial No. 3-F was added with effect from 15th November, 1958, and continued to be in the schedule till 31st March, 1966. It was deleted by a notification of 4th March, 1966, with effect from 1st April, 1966. With effect from 15th November, 1958, in serial No. 32, the words "other than those falling under serial No. 3-F" were added. Notwithstanding the fact that serial No. 3-F was omitted from 1st April, 1966, in serial No. 32, reference to serial No. 3-F continued till it was omitted under a notification dated 27th April, 1970. In S. J. C. No. 153 of 1972, the year of assessment is 1967-68 which in the other reference application, the year of assessment is 1968-69. In both these cases the point in dispute is as to whether when the articles sold are made of bullion and specie containing filigree works the rate of tax applicable would be as provided under serial No. 1 or serial No. 32 of the schedule of the notification referred to above. The assessee claims to be assessed at 2 per cent. The revenue contends that the liability of tax is at 7 per cent. The assessing officer and the first appellate authority have, to the estimated break-up of the turnover applied the rate prescribed under serial No. 32. In second appeal, the Tribunal came to hold - ". . . . . . . it would appear that ordinary ornaments of everyday use are exigible to law rate of tax of 2 per cent. whereas ornamental metal-wares such as plates, cups, glasses, betel-diba, caskets, which are luxury goods are taxable at 7 per cent. and still more luxurious goods, i. e. , ornaments with precious stones are taxable at 10 per cent. Filigree works may be two kinds of goods - one which are ornaments such as necklace, armlets, etc. , whereas it may be also on goods which are not ornaments such as plates, cups, saucer, glasses, pan-dibas. The legislature have used the word 'ornaments' under serial No. 1, whereas 'ornamental metal-ware' under serial No. 32 and that makes all the difference. There is no need to strain the words used in these two serials. The emphasis would be on 'ornaments' appearing in serial No. 1 and 'ornamental metal-ware' appearing in serial No. 32 and not on the word 'filigree' which is absent from serial No. 1. From the orders of the forums below it is not clear if the accounts were separately kept one for ornaments and the other for ornamental metal-ware filigrees. Accordingly, I allow the appeal and remand the case for disposal in the light of the above observation and if any tax is found to have been paid in excess, that is to be refunded. "
(3.) LAW is well-settled that all the entries in a particular schedule have to be so construed that full effect is given to all the entries. (See State of Orissa v. Modi Stores ([1969] 24 S. T. C. 255.) ). Serial No. 3-F was deleted with effect from 1st April, 1966. As in these two references we are concerned with the assessment years 1966-67 and 1967-68, serial No. 3-F must be taken to have become non-existent. In serial No. 32, however, reference to serial No. 3-F continued until 1970. Therefore, so far as these two years of assessment are concerned, while serial No. 3-F was actually non-existent by repeal, reference to it continued in serial No. 32.;


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