- (1.) THIS is an application under Article 226 of the Constitution inter alia for the issue of writ in the nature of mandamus commanding the respondents to cancel or rescind the order of assessment in respect of goods mentioned in paragraph 9 of the petition and to refund rs. 5691. 30 collected as entry tax. The application is also for the issue of a writ in the nature of Certiorari for quashing the said purported assessments.
(2.) THE petitioner imports various raw materials from foreign countries for the purpose of manufacturing of dyestuff. With the promulgation of the President Act No. 18 of 1970 taxes have been imposed on entry of certain goods mentioned in the said Act into calcutta Metropolitan area. The petitioner holds valid license issued to him by the Central Government for import of the following goods : JUDGEMENT_5_TLCAL0_1972Html1.htm The said raw materials or goods are dyes Intermediates and are known popularly or in the trade as Dyes Intermediates. They are necessary for manufacturing dyestuffs. According to Section 6 of the said Act tax will be levied and collected on the entry of every specified goods. Petitioners are the clearing Agents who had been clearing the said goods from the Port of Calcutta and bringing them in the Metropolitan area. It made declaration in Form 4 before the Assessing Officer Calcutta jetty Collection Office where he was required to pay Entry tax in respect of all specified goods before bringing them into Metropolitan area. It appears from annexure 'a' to the said petition in form No. 5, appearing at page 20 of the said petition of Clearing Agent of the petitioner the goods brought were described the goods as Oil and a tax of rs. 125/- was levied on the said goods and paid by the petitioner. In the copy of the form of declaration at page 22 the goods were described by the petitioners clearing Agents as Iron Drums. Tax of such goods was assessed at Rs. 12/-and paid. The other goods described in the other forms copies whereof have been annexed to the petition were not expressly taxable under the said Act. It is stated on behalf of the respondents that the said goods fall within item No. 49 (a) of the specified goods in the schedule to the West Bengal Act 5 of 1972 which Act is now in force for the purpose of levying taxes on entry of goods into Calcutta Metropolitan area. The act is known as Taxes on Entry of goods into Calcutta Metropolitan Area act 1972. Item 49 (a) reads as follows: "aromatic chemicals, attars, scents, scented materials, perfumery of all kinds"
(3.) MR. Sanjoy Bhattacharya, appearing on behalf of the petitioner, submitted (i) Dyes Intermediates do not fall under any of the items specified in the schedule for the purpose of levy of conroy; (ii) both the first and second affidavits filed on behalf of the respondents are not affirmed by the person who assessed the petitioner. The second affidavit has been affirmed by a person who is rot a party to this proceeding nor does, he disclose in the affidavit that he was making the affidavit on behalf of any of the respondents. Leave was given on August 8, 1972 to file a further affidavit by the respondents. Therefore, the person who has affirmed the second affidavit has no authority to swear the said affidavit; (iii) item 49 (a) of the schedule to the said Act should be construed ejusdem generis. Dyes intermediates undoubtedly contain aromatic nucleus but are not aromatic chemicals as known in the trade or industry or even to the Government authorities. Mr. Bhattacharyya places the relevant portion of the Import Trade Control book and shows that Dyes Intermediates are different from aromatic chemicals, they are, as a matter of fact, two different kinds of goods. Mr. Bhattacharyya lastly submits that these goods should be treated as they are known in the made or the popular sense and relies for the said purpose on (1) Ramavatar budhaiprasad etc. v. Assistant Sates Tax officer, Akola and another, A. I. R. 1961 supreme Court 1325), (2) Indian Herbs research and Supply Co. v. Commissioner of Sales Tax (17 S. T. C. 551), (3) Imperial Surgico Industries v. Commissioner, Sales Tax (23 S. T. C. 201) and (4) M/s. Motipur Zamindary Co. (Private) Ltd. v. Superintendent of taxes (A. I. R. 1962 S. C. 660 ). In support of his contention Mr. Bhattacharya submits that the affidavits filed on behalf of the Respondents should not be relied on and he relied on the case reported in A. I. R. 1966 Calcutta 151. Mr. S. Pal appearing on behalf of the respondents submitted that the first page and second page of the Annexure 'a' show that in the return filed by the petitioner, the goods have been described as taxable goods and thus was specified in the schedule. Therefore, the goods are taxable and no complaint can be made by the petitioner in regard to these goods. Mr. Pal submitted that the goods in the instant case are covered by or included in item 49 (a) of the schedule to the Act. In Import Trade control Policy for the year April, 1970 to March, 1971, published by the government of India, Ministry of Foreign trade, at pages 303 and 304, the goods which were imported by the petitioner were described as Dyes Intermediate. At page 329 of the said volume in List 4 various goods are enumerated under the heading list of materials which will be allowed import against licences issued for import of aromatic chemicals. Thus, from the said book it appears that for the purpose of importing goods Dyes intermediates are not treated as aromatic chemicals by even the Government of india. In (1) Ramavatar Budhaiprasad etc. v. Assistant Sales Tax Officer, Akola and another, reported in A. I. R. 1961 Supreme Court 1325 it was held that betel leaves and vegetables were treated in the c. P. and Berar Sales Tax Act to be two distinct kinds of goods and so betel nuts were held not to be vegetables. The word vegetables was held as in taxing statutes to connote the class of vegetables which are grown in a kitchen garden or in a farm and are used for the table, that is to say, as they were known in common parlance. Similar was the case in (2) Indian Herbs Research and Supply Company v. Commissioner of Sales tax, U. P. where it was held that the word perfume appearing in item 37 of the Notification No. ST 905/x dated march 31, 1956 issued under Sec. 3a of the U. P. Sales Tax Act, 1948, should be given the meaning which is ordinarily understood in the world of commerce. Thus Dhup and Dhup Bati which do not emit any odour unless when burnt, did not fall within the category of perfumes being item 37 mentioned above.;