D. Basu, J. - (1.) This Rule involves an interpretation and application of item No. 26 of Schedule I of the Bengal Finance (Sales Tax) Act, 1941, which says as follows: Water, but not aerated or mineral water when sold in bottles and sealed containers.
(2.) This Schedule is issued in pursuance of the provisions of Sec. 6 of the Act which deals with tax -free goods. The result is that the sale of any sort of water, which includes aerated water, would be exempted from sales tax under the Bengal Act excepting when the aerated or mineral water is sold in bottles and sealed containers. The very fact that aerated or mineral water is stated as an exception to the word 'water' shows that the term 'water' is used in this context in its technical sense instead of the literal meaning of water which we ordinarily drink. Therefore, when mineral water is sold in any form other than as such put in a bottle or sealed container, it cannot be taxed. In the instant case, the Petitioner has been assessed with sales tax for sale of mineral water of some quantity which was not sold and charged from the customers in its bottled condition.
(3.) To be more precise, the Petitioner who is the owner of a hotel and restaurant with a bar purchased bottled aerated water during the tax period in question worth Rs. 9,487 05 np. (Rupees nine thousand four hundred eighty -seven and five naye paisa). Out of that quantity he showed a sale of Rs. 4.19.69 np. for the purpose of taxation alleging that the quantity represented by that figure was sold as aerated water to customer in their bottled condition. But, as regards the rest of the stock, the Petitioner's case is that that was supplied free to consumers with wine at the bar in the form of mixture, i.e. added to the liquor purchased by them and without charging anything extra for the addition of mineral water. Prima facie, this is not a sale of the aerated water in bottle and would come under the exception of item No. 26, but the appellate officer by his order at annEx. D has overcome this difficulty by a two fold reasoning. Firstly, he has argued that the Petitioner has not taken upon himself the business of a charity as a wine dealer making gratuitous sale of mineral water to his customers at the bar This, of course, as has been rightly argued on behalf of the Petitioners, is little more than an assumption. Devotees of the cult of Vaishnavism would not certainly open a liquor bar. But there is nothing to prevent a prudent trader from offering gratuitous supplies of incidental materials and goods in order to attract customers in a world of competition. Whether they have charged extra for the mineral water or not is a question of fact and not a reasoning or assumption. The appellate officer did not go into this question of fact on the further reasoning that: If it is not separately charged in the bill, the assessing authority is within his competence to estimate the price having had" regard to all available data.;