P.K.Ganguly, Judicial Member - (1.) This is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 praying for a declaration that husk of isabgul falls under item as mentioned in Serial No. 14(b)(ii) of Schedule I to the West Bengal Sales Tax Act, 1994, and is not taxable or alternatively for a declaration that husk of isabgul falls under Serial No. 24 of Part A to Schedule IV of the said Act, 1994 and is taxable at the rate of 4 per cent and for quashing the decision treating the said goods as a taxable item under Serial No. 249 of Part A to Schedule IV of the said Act attracting sales tax at the rate of 10 per cent as well as for quashing the orders dated May 25, 2001 of respondent No. 1, Commercial Tax Officer, Jorabagan Charge and his Memo No. 1590 dated June 28, 2001.
(2.) THE case of the petitioner is that the petitioner is a company incorporated under the Companies Act, 1956 and the said company deals in various items of goods by importing the same into West Bengal from different other States. The petitioner is registered both under the West Bengal Sales Tax Act, 1994, and the Central Sales Tax Act, 1956. There was no dispute when the sale of husk of isabgul by the petitioner -company attracted no tax under serial No. 14(b)(ii) of Schedule I of the Act of 1994. But the dispute arose from May, 2001 when by memo dated May 30, 2001, respondent No. 1 held that sale of husk of isabgul does not attract exemption from payment of tax and, i.e., husk of isabgul being not an item under entry at Serial No. 14(b) (ii) of Schedule I, the petitioner was directed to pay amount of tax payable on sale of such item and to file revised return including a sum of Rs. 9,67,900 as the petitioner's taxable sale on that count for quarter ending March 31, 2001, failing which the petitioner shall be a defaulter under both the Acts. The petitioner contends that husk of isabgul is nothing but husk of cereals and as the same is not sold in sealed containers of polythene packets, it attracts no tax on its sale as per item at serial No. 14(b)(ii) of the Act, 1994. The petitioner's argument as above before the respondent No. 1 was negatived by the respondent No. 1 who held that husk of isabgul is not an item included in Schedule I and reasons for the same were given in his order dated May 22, 2001. The petitioner contends that the scientific reason and the common sense view elaborated by the respondent No. 1 in his order in support of his decision that husk of isabgul is not husk of cereals have no legs to stand since seeds of isabgul are processed through series of grinding mills to separate the husk as done in the case of cereals and that husk is fit for human consumption as like all other cereals. The petitioner also contends that the decision of the respondent No. 1 to the effect that the sale of husk of isabgul attracts sales tax at the rate of 10 per cent under item at Serial No. 249 of Schedule IV, Part A is arbitrary and not according to law and that at the worst, the sale of isabgul may attract tax at the rate of 4 per cent falling under item at serial No. 24 of Schedule IV, Part A. Hence, the application praying for the aforesaid relief has been filed. The respondents contest the case by filing affidavit -in -opposition. Their case is that the returns filed earlier by the petitioner were all incorrect returns and due tax not having been paid those are no returns at all. Non -taxability of that item, i.e., husk of isabgul was determined by the petitioner alone without any legal basis. By the impugned memo, the petitioner was informed about the same. The husk of isabgul has been wrongly considered by the petitioner as if husk of cereals. Isabgul is not cereal and not at all an edible grain. Isabgul in authentic books of agriculture has nowhere been discussed under chapter "cereals and pulses". After due consideration, it has been held that husk of isabgul is covered under entry 249 of Schedule IV, Part A and that it is not an item covered under Schedule I. The order dated May 25, 2001 has been passed following due procedure of law and in terms of power under Section 30(7) of the Act of 1994 and the proceeding was initiated and completed after giving petitioner reasonable opportunity of being heard. As the item "husk of isabgul" does not find mention in Schedule I or Schedule VIII -A or in any other entry in Schedule IV, Part A, the husk of isabgul has been treated as an item in the general entry at Serial No. 249 of Schedule IV, Part A, attracting 10 per cent tax. The alternative prayer as made by the petitioner also is not tenable in law as the husk of isabgul is not medicine. It is therefore contended by the respondents that the application with the prayer as made should be dismissed.
(3.) THE petitioner used affidavit -in -reply where the petitioner appears to have simply denied paragraphwise the contentions made by the respondents.;