B.C.CHAKRABARTI - (1.) THE short question involved in these two cases is whether sweetmeat was exigible to sales tax even prior to the West Bengal Taxation Laws (Amendment) Act, 1987, pursuant to which certain goods, sales of which were generally exempt under section 5(2)(a)(vi) of the Bengal Finance (Sales Tax) Act, 1941, were included in Schedule I of the Act.
(2.) THE case of the applicants may be briefly put thus : The applicants have been carrying on the business of selling sweetmeats since 1361 (RN-696 of 1989) and 1350 B.S. (RN-2 of 1990). They obtained license from the municipality to carry on the trade. Under a misconception of law they got themselves registered and paid sales tax for some years from the inception of business. There being, however, no provision in the Act that sweetmeats are taxable, the applicant and some others filed a writ application under article 226 of the Constitution challenging the demand, being C.R. 7395 (U) of 1985. Subsequently, the applicants received notices of demand arising out of several cases in connection with the proceedings initiated by the Commercial Tax Officer, Serampore Charge under sections 11 and 14 of the Bengal Finance (Sales Tax) Act, 1941 (for short "the BFST Act"). This put them to enquiry and they came to know to their surprise that the writ application was dismissed for default on April 5, 1988. The present applications have, however, been filed on the cause of action arising from the service of notices for the period from 1389 to first quarter of 1392 B.S. The demand, made presumably under section 5(1)(e) of the BFST Act, is unauthorised and hit by article 265 of the Constitution. It is, therefore, prayed that section 5(1)(e) of the Act be declared ultra vires the Constitution, that the previous collections were un-authorised and for quashing the notices. The applications are opposed on the grounds that sweetmeats were, prior to 1987, taxable under entry 7 of Schedule I of that Act, that the exemption under entry 101 could be claimed from 1987 in view of the amended provisions and that the demand is neither hit by article 265 of the Constitution nor the provisions of section 5(1)(e) are ultra vires the Constitution.
(3.) BEFORE coming to consider the rival contentions of the parties, it may be convenient to bear in mind the relevant provisions of law. The rate of tax payable by a dealer on his turnover is prescribed in section 5 of the Act. Different rates of tax are prescribed for defiant specified items of goods enumerated in different sub-clauses. Then clause (e) of sub-section (1) of section 5 provides : "(e) eight per centum of such part of his taxable turnover as represents sales of goods other than those referred to in clauses (a), (aa), (aaa), (b), (bb), (bbb), (c), (cc), (cc-i), (ccc), (cccc), (d) and (dd)." No tax is payable under the Act on the sale of goods specified in the first column of Schedule I subject to the conditions and exceptions, if any, set out in the corresponding entry in the second column thereof. Item 7 of Schedule I as it stood prior to April 1, 1985, was as under : 1 2 "7. Cooked foods, other than Except when sold in cakes, pastries, biscuits and sealed containers." sweetmeats, sold at one time to a person at a price of not more than ten rupees. This item has been omitted with effect from April 1, 1985 by section 4(11)(a) of the West Bengal Act 5 of 1985. Entry 101 of the same Schedule as it now stands, is as follows : 1 2 "101. Sweetmeats, other than cakes, Except when sold in pastries and biscuits, but sealed containers." including curds This item was made tax-free with effect from June 1, 1987, in terms of section 2(18)(b) of the West Bengal Act 5 of 1987.;