AMIYA KUMAR MOOKERJI, J. - (1.) IN this rule the petitioners pray for a declaration that the West Bengal Taxation Laws (Amendment) Act, 1972, in so far as and to the extent to which the same seeks to withdraw the exemptions in entry 25 of Schedule I to the Bengal Finance (Sales Tax) Act, 1941, is ultra vires and should be struck down.
(2.) PETITIONER No. 1 is an existing company and petitioner No. 2 is the shareholder and Senior Executive Officer of petitioner No. 1. It is the case of the petitioners that under the provisions contained in rules 4 and 5 of the West Bengal Excise Foreign Liquor (Licence Fee) Rules, 1942, an annual fee is payable in advance on all sales of potable liquor including India-made foreign liquor and beer. In addition, an additional licence fee, popularly known as literage fee, is imposed and collected on all sales of potable liquor including India-made foreign liquor and beer. Such impositions are essentially in the nature of sales tax as the same are related to and/or based on the sales of liquor as aforesaid. The imposition of additional fee or literage fee thereunder is virtually an imposition of sales tax under the impugned Acts and amounts to double taxation on the sale of the same commodity. On or about the year 1972, the West Bengal Taxation Laws (Amendment) Act, 1972, was enacted. The same came into force on and from 7th August, 1972. Under the said Act, the provisions in regard to the exemption under entry 25 to the First Schedule of the said Act of 1941 was omitted and as such the exemption allowed to the petitioners for sale of spirits and liquors was no longer available to the petitioners.
(3.) IT is contended by the petitioners that the said omission is bad, illegal and ultra vires. By reason of the provisions of sections 20, 43 and 44A of the Bengal Excise Act, 1909, there is no element of permanency and/or continuity in the trade carried on by the petitioners. The licensing issued by the excise department in regard to the trade carried on by the petitioners is renewed for a specified period and he appropriate licensing authority has the option either to renew the licence or to cancel the same and, as such, the petitioners cannot be treated as dealers within the meaning of the Bengal Finance (Sales Tax) Act, 1941, or the West Bengal Taxation Laws (Amendment) Act, 1972. According to the petitioners, the expression "dealer" under the said West Bengal Act of 1972 imputes and/or connotes an element of permanency and/or continuance and the Act used the expression "carries on" deliberately. It is also stated by the petitioners that Schedule II of the said Act of 1972 lays down the description of goods on which such purported sales tax are imposed. Item 37 of the said Schedule II of the said Act of 1972 provides as follows : "Potable foreign liquor including medicated wine and brandy, whisky, gin, rum, liqueur, cordials and other similar potable alcoholic preparations containing India-made spirit and India-made rectified spirit intended for the manufacture of brandy, whisky, gin, rum, liqueur and cordials and other similar potable alcoholic preparations." ;