- (1.) IN this and the connected references the following two questions have been referred for the opinion of this Court by the Judge (Revisions) Sales Tax. "(1) Whether under the circumstances of the case the proof of payment of additional excise duty was incumbent without which the turnover of 14th December, 1957, onward, was not exempt ? (2) In any case whether the turnover was exempt or not, the relevant item of Notification No. ST-905/X issued under section 3-A stands modified by Notification No. ST-4485 dated 14th December, 1957, as to make this turnover taxable under section 3 of the Act ?"
(2.) THE assessee manufacturers and sells biris. It carries on business at branches situated at Faizabad, Lucknow, Agra and Bareilly. Sales Tax Reference No. 479 of 1965 arises out of assessment proceedings for the year 1957-58 in respect of the Bareilly branch, Sales Tax Reference No. 480 of 1965 relates to assessment proceedings for the assessment year 1957-58 in respect of the Faizabad branch, Sales Tax Reference No. 481 of 1965 arises out of an assessment for the year 1957-58 in respect of the Lucknow branch, Sales Tax Reference No. 482 of 1965 arises out of assessment proceedings for the assessment year 1958-59 in respect of the Agra branch and Sales Tax Reference No. 483 of 1965 arises out of assessment proceedings for the assessment year 1957-58 in respect of the Agra branch. The assessee claimed exemption from tax in the assessment proceedings before the Sales Tax Officer. He rested the claim under Notification No. ST-4485/X dated 14th December, 1957. The Sales Tax Officer rejected the claim on the ground that the additional excise duty had not been paid in respect of the biris manufactured and sold by the assessee and, therefore, the exemption from sales tax granted by the said notification was not available. An appeal by the assessee was dismissed by the Judge (Appeals) Sales Tax and thereafter a revision application was dismissed by the Judge (Revisions) Sales Tax. That represents the course of proceedings in respect of each of the cases out of which these references arise. At the instance of the assessee these references have been made to this Court by the Judge (Revisions). To appreciate the contentions raised by the assessee before us, it will be convenient to set out the two notifications which are relevant. Notification No. ST-905/X dated 31st March, 1956, reads : "In exercise of the powers conferred by section 3-A of the U.P. Sales Tax Act, 1948, as amended from time to time and in supersession of all previous notifications on the subject, the Governor of Uttar Pradesh is hereby pleased to declare that the turnover in respect of the goods specified in the List below shall not with effect from April 1, 1956, be liable to tax except - (a) in the case of goods imported from outside Utter Pradesh, at the point of sale by the importer; and (b) in the case of goods manufactured in Utter Pradesh, at the point of sale by the manufacturer; and the Governor is further pleased to declare that such turnover shall with effect from the said date be taxed at the rate of one anna per rupee. LIST 1. .................. 2. .................. 3. Biris. ................."
(3.) NOTIFICATION No. ST-4485/X dated 14th December, 1957, is as follows : "In partial modification of Notifications No. ST-905/X, dated March 31, 1956, and No. ST-418/X-902(9)-52, dated January 31, 1957, and in exercise of the powers conferred by clause (b) of sub-section (1) of section 4 of the U.P. Sales Tax Act, 1948 (U.P. Act No. XV of 1948), as amended up-to-date, the Governor of Utter Pradesh is pleased to order that no tax shall be payable under the aforesaid Act with effect from December 14, 1957, by the dealers in respect of the following classes of goods provided that the additional Central Excise Duties leviable thereon from the closing of business on December 13, 1957, have been paid on such goods and that the dealers thereof furnish proof to the satisfaction of the assessing authority that such duties have been paid : (1) ............................ (2) ............................ (3) Cigars, cigarettes, biris and tobacco that is to say any form of tobacco, whether cured or uncured and whether manufactured or not, and includes the leaf, stalks and stems of the tobacco plant but does not include any part of a tobacco plant while still attached to the earth." ;