G.S. Singhvi, J. - (1.) THIS petition has been filed to quash order Annexure P2 issued by respondent No. 1 imposing tax on Dhoop and Agarbati at the rate of 10 per cent. The petitioner has also prayed for a issue of a direction to the respondents not to levy tax at the rate of 10 per cent.
(2.) THE petitioner is a dealer in Dhoop and Agarbati at Ferozepur and is registered under the Punjab General Sales Tax Act, 1948 (for short, the Act). Petitioner's grievance is that Dhoop and Aggarbati are not liable to be taxed at the rate of 10 per cent in view of the order dated 20.9.1972 passed by this Court in C.W.P. Nos. 703 and 704 of 1972 (M/s Amir Chand on Parkash v. The Assessing Authority, Amritsar) According to the petitioner, entry Np.16 of Schedule 'A' appended to the Act as amended vide Government notification dated 28.9.1979 did not provide for imposition of tax on perfumery at the rate of 10 per cent and the assessing authority has committed a serious illegality in relying on the amendment brought about in the year 1979 for assessing the petitioner for the assessment year 1978 -79. The respondents have opposed the writ petition. In their reply, they have pleaded that in view of the decision of the Supreme Court in Commissioner of Sales Tax (U.P.) v. Indian Herbs and Research Supply Co., (1970) 25 SCT 151 the word 'perfumery' includes Dhoop and Aggarbati and, therefore, there was ample justification for taxing these goods at the rate of 10 per cent. The respondents have relied upon Government' notification dated 24.12.1975 and have asserted that the petitioner is liable to pay tax at the rate of 10 per cent.
(3.) ENTRY No. 16 Schedule 'A' to the Act as it stood amended by notification dated 6.9.1968 reads as under: - "16 Cosmetic, Perfumery and Toilet goods excluding Toothpaste, Tooth Powder, Kum Kum and Soap." It appears that the assessing authority had been assessing Dhoop and Aggarbati under the head 'Luxury Goods.' A learned Single Judge of this Court held in Amri Chand Om Parkash's case (supra) that Dhoop and Aggarbati do not answer the description of luxury goods and were liable only to Sales Tax at the rate of 6 per cent in a rupee and not ten paise in a rupee. Thereafter, the Punjab General Sales Tax Ordinance, 1975 was enacted for the purpose of amending the Act. The word 'luxury' was deleted from Section 5(1) and Schedule 'A'. It was also declared that the amendment shall be deemed to have come into force with retrospective effect. Thereafter, notification Annexure P1 was issued on 28.9.1979 whereby Entry 16 was amended and Entry 16 -A was added. The amended Entry 16 and Entry 16 -A read as under: - "(16) Cosmetics and toilet goods excluding toothpaste, toothpowder, kum kum and soap. (16 -A) Perfumery including dhoop and aggarbati." The petitioner was assessed for the year 1978 -79 and by that time the word 'luxury' had been deleted from the Act and the Schedule. However, the word 'perfumery' used in Entry 16 - of the Schedule 'A' was in existence on the date of the assessment of the petitioner. This word has been interpreted in Commissioner of Sales Tax (U.P. v. Indian Herbs and Research Supply Co. (supra) and it has been held as under - "The word 'perfume ' in item No. 37 of Notification No. 905/X dated March 31.1956 issued under Section 3 -A of the U.P. Sales Tax Act, 1948 should be construed in its ordinary sense i.e. as meaning any substance natural or prepared which emits/or is capable of emitting an agreeable odour either when burned or by the application of some foreign matter to induce any chemical reaction which results in fragrant occurs being released from that substance. 'Dhoop and Dhoop -Batti', therefore, fall within the category of 'perfume' under item No.37 and their sales are liable to the higher rate of single point tax of one anna per rupee which is the tax declared in the notification and not the multipoint sales tax of only three pies in a rupee.";