Padma Khastgir, J. - (1.) This application has beentaken out by M/s. Rasoi Products, a partnership firm and Dilip Kumar Basu, a partner of the said firm, for necessary relief under Article 226 of the Constitution of India.
(2.) The petitioners deal in turmeric popularly known as halud or haridra and black and white pepper ground, powdered or in any other form or description, secured by purchase from the local market in Calcutta within the State of West Bengal. According to the petitioners, halud is a notified commodity which had been purchased by the petitioners from different dealers in Calcutta upon payment of taxes under the West Bengal Sales Tax Act, 1954. The petitioners are neither importer nor producer, processor or manufacturer of the said notified commodities under the Bengal Finance (Sales Tax) Act, 1941. The petitioners had purchased the said goods from the dealers who in turn have paid taxes to the State under the West Bengal Sales Tax Act of 1954 at the point of import into West Bengal. Petitioner No. 1 has been registered under the Bengal Finance (Sales Tax) Act of 1941 with the appropriate authorities and its registration certificate No. is SH/3931A. The petitioners had never been taxed by respondent No. 1 over those commodities as those commodities were purchased by the petitioners locally upon payment of tax. The persons who are required to be registered under the said Act must be either an importer or a manufacturer of any of the notified commodities covered by the West Bengal Sales Tax Act, 1954. It was the case of the petitioners that all on a sudden, petitioner No. 1 was served with a notice under Section 9(3) of the West Bengal Sales Tax Act, 1954, to appear before respondent No. 1 and to show cause as to why the petitioners should not be assessed to tax under the West Bengal Sales Tax Act, 1954, on the powdered turmeric and black or white pepper. In the petition the petitioners have given various particulars of the purchase of the said turmeric as also black pepper/white pepper as shown in the orders of assessment under the Bengal Finance (Sales Tax) Act, 1941, for the years 1373 B. S. to 1384 B. S. the entire gross amounts of sales were assessed as consideration of sales in West Bengal secured by purchase upon payment of tax from places within the State of West Bengal. From the copies of the assessment orders it would appear that the authorities concerned have accepted the said position. In those cases the petitioners claimed the entire gross amount of sale which is not liable to be taxed under the West Bengal Act on the ground that under the provisions of the West Bengal Act no tax is payable by the dealer in respect of any turnover of the notified commodities as consideration for sales in West Bengal of the notified commodity secured by purchase upon payment of tax from places within the State of West Bengal. In spite of that position and in spite of the fact that the explanation of the petitioners having been accepted by respondent No. 1 which would be evident from the various assessment orders passed by respondent No. 1, respondent No. 1 issued notices under Section 9(3) of the West Bengal Sales Tax Act, 1954, on notified commodities for the years 1373 to 1384 B. S. whereupon the petitioners requested respondent No. 1 to cancel and/or withdraw the said notice which respondent No. 1 refused to do. As, according to the petitioners, they are not liable to pay tax under the West Bengal Sales Tax Act, 1954, as such the question of getting registered under the said Act did not arise nor there was any information into the possession or materials on which respondent No. 1 could ask the petitioners to appear before him pursuant to the notice served as indicated above. The petitioners are regular assessees and after being duly satisfied with the returns as also vouchers and documents in support of the same respondent No. 1 has all along accepted the said position. It is the petitioners' case that since the judgment passed in Mahabirprasad Birhiwala v. State of West Bengal reported in [1973] 31 STC 628 respondent No. 1 has been inspired not only to serve the notice on the petitioners but also on other traders like Krishna Chandra Dutta (Cookme) Limited and Ganesh Masalla, etc.
(3.) By notifications dated 1st May, 1955, bearing No. 885-FT and dated 10th May, 1963, bearing No. 1918-FT the State Government in exercise of the power conferred by Section 25 and Clause (b) of Sub-rule (i) of Rule 14 of the West Bengal Sales Tax Rules, 1954, brought turmeric and black pepper and white pepper within the ambit of the said Act. Under the said Act the turmeric has been defined as "turmeric, known locally as haridra or halud, that is to say, the product obtained from the plant 'curcuma longa' whole, broken, ground or powdered, or of any other form or description whatsoever". Black pepper and white pepper have been defined as "known locally as gol marich, that is to say, the berry of the plant 'piper nigrum', whole, broken, ground or powdered, or of any other form or description whatsoever". A dealer has been defined under Section 2(b) of the said Act and means "any person who sells notified commodities manufactured, made or processed by him in West Bengal, or brought by him into West Bengal from any place outside West Bengal for the purpose of sale in West Bengal and includes Government".;