M. B. SHARMA, J. - (1.) IN the above numbered writ petitions an identical question is involved and therefore, all the above writ petitions are being disposed of by this common order.
(2.) THE petitioner in each of the above writ petitions purchases wheat from outside State as well as from within the State of Rajasthan for crushing it into flour and fine-flour, i. e. , maida and suji and sells it to the traders within and without the State. Clause 3 of article 286 of the Constitution lays down that any law of a State shall in so far as it imposes or authorises the imposition of a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-State trade or commerce, or a tax on the sale or purchase of goods being a tax of the nature referred to in sub-clause (b) or sub-clause (c) or sub-clause (d) of clause (29a) of article 366, be subject to such restrictions and conditions in regard to the system of levy, rates and other incidents of the tax as Parliament may by law specify. In view of the aforesaid constitutional mandate provisions were made in the Central Sales Tax Act, 1956 (for short, "the CST Act" ). Section 2 (c) of the CST Act defines "declared goods" and the said term means goods declared under section 14 to be of special importance in inter-State trade or commerce. Section 14 of the CST Act declares certain goods to be of special importance in inter-State trade or commerce, and for the convenience these goods have come to be known as "declared goods". A conjoint reading of sections 14 and 15 of the CST Act will show that so far as declaration of goods under section 14 is concerned, the sales tax law of the State shall impose or authorise imposition of tax not exceeding 4 per cent of the sale or purchase price thereof and such tax shall not be levied at more than one stage. So far as clause (i) of section 14 of the CST Act is concerned, it reads as under : " Section 14 : Certain goods to be of special importance in inter-State trade or commerce.- It is hereby declared that the following goods are of special importance in inter-State trade or commerce - (i) cereals, that is to say - (i) paddy (Oryza sativa L.); (ii) rice (Oryza sativa L.); (iii) wheat (Triticum vulgare, T. compactum, T. sphaerococcum, T. durum, T. aestivum L. , T. dicoccum); (iv) jowar or milo (Sorghum vulgare Pers); (v) bajra (Pennisetum typhoideum L.); (vi) maize (Zea mays D.); (vii) ragi (Eleusine coracana Gaertn.); (viii) kodon (paspalum scrobiculatum L.); (ix) kutki (panicum miliare L.); (x) barley (Hordeum vulgare L.);" It will therefore appear from the aforesaid extracted clause (i) that "wheat" is declared goods. In the seventies wheat was exempted from payment of sales tax by various notifications issued under section 4 (2) of the Rajasthan Sales Tax Act, 1954 (for short, "the RST Act" ). Under the various notifications the State Government in exercise of the powers conferred by proviso ii to section 5 of the RST Act prescribed the rates of sales tax payable by a dealer in respect of goods including flour, fine-flour, i. e. , maida, and suji and a reference may be made to the following notifications in this respect - Notification number and date Rate of tax 1. F. 5. (23)E&t/61-I dated March 9, 1961 1% 2. 5 (A) : F. 5 (40)FD (R&t)/63 XIII dated March 2, 1963 2% 3. S. No. 94 : F. 5 (125)FD (CT)/65-IV dated November 2, 1965 1% 4. S. No. 248 : F. 5 (24)FD/ct/72-8 dated April 26, 1972 1% F. 4 (67)FD/gr. IV/76-23 dated September 8, 1976 3% F. 4 (5)FD/gr. IV/88-13 dated March 8, 1988 : for paddy, rice and wheat 4% for maida, suji and sewaiyan 5%
(3.) F. 4 (4)FD/gr. IV/89-12 dated March 23, 1989 4% 5. The case of the petitioners is that in the past the contention of the respondents that "flour" and "fine-flour" (maida) are different cereal commodities and therefore, tax would be leviable in addition to tax on wheat, but the same was overruled by the Rajasthan Sales Tax Tribunal on considering the various notifications namely notification dated April 26, 1972 and other notifications, wherein a view was taken that flour and fine-flour are forms of wheat and no tax on the same is payable. Therefore, till October 7, 1976, when the notification dated April 26, 1972, was in force the flour mills were not required to pay any sales tax on flour or fine-flour but the notification dated April 26, 1972, was superseded by notification dated September 8, 1976 and the petitioner as well as members of the Rajasthan Flour Mills Association (one of the petitioners) were taxed under the aforesaid notifications dated September 8, 1976, March 26, 1988 and March 23, 1989 on the plea that with effect from September 8, 1976, wheat as such is a declared commodity under section 14 of the CST Act and therefore, the restrictions prescribed under section 15 of the said Act do not apply to the other forms of wheat, i. e. , flour and fine-flour (maida and suji) and the Rajasthan Sales Tax Tribunal confirmed the levy under the notification dated September 8, 1976. The litigation is going on and the matter is said to be pending in this Court in various revision petitions under the RST Act. 6. The petitioners' case further is that in the year 1989 the case of Dhanbad Flour Mills v. State of Bihar [1989] 75 STC 47 (Pat) came to the notice of the petitioner wherein a view had been taken that atta, maida and suji, which are obtained by merely reducing the size of wheat grains into smaller particles or powder, are included in the item "wheat" in section 14 (i) (iii) of the CST Act and are to be treated as declared goods. Additional tax under section 6 of the Bihar Finance Act, 1981, is not exigible thereon. It is the case of the petitioners that they are not liable to pay any sales tax on the flour or fine-flour (maida and suji), as it is unconstitutional being in violation of sections 14 and 15 of the CST Act and amounts to double taxation on the declared goods on more than one point. 7. The notification which has now been challenged in these petitions is of June 27, 1990, is reproduced here and reads as follows : " FINANCE (GR. IV) DEPARTMENT NOTIFICATIOn Jaipur, June 27, 1990 SO. 94.- In exercise of the powers conferred by section 5 of the Rajasthan Sales Tax Act, 1954 (Rajasthan Act No. XXIX of 1954) and in supersession of this Department Notification No. F. 4 (4)FD/gr. IV/89-12 dated March 23, 1989, as amended from time to time, the State Government being of the opinion that it is expedient in the public interest so to do, hereby provides that with immediate effect the rate of tax payable by a dealer in respect of the goods specified in column 2 of the list annexed hereto shall be as shown against them in column 3 of the said List : LISt ------------------------------------------------------------------------ S. No. Description of goods Rate of tax ------------------------------------------------------------------------ 1 to 31. . . . . . . . . . . . . . . . . . . . . . . . . 32. Paddy, rice, wheat, atta (flour) of rice and wheat, maida and suji. 4% 33 to 102. . . . . . . . . . . . . . . . . . . . . . . . . 103. General rate, i. e. , all goods that are not covered by Sl. Nos. 1 to 102 10% [no. F. 4 (37)FD/gr. IV/90-15] By Order of the Governor Sd/- Rakesh Verma, Deputy Secretary. " The petitions are contested on behalf of the respondents and preliminary objections have also been raised including the preliminary objection that it is a question of fact as to whether the flour or fine-flour (maida and suji) are declared goods or not and against the order, if any, appeal lies to the appellate authority and then to the Tribunal and then revision lies to this Court. Thus, there is alternative remedy in such a case where best judgment assessment under section 7-B of the RST Act has been framed and appeals have been preferred. We are of the opinion that the existence of alternative remedy is not an absolute bar to the invoking of extraordinary jurisdiction under articie 226 of this Court and more so in a case where the jurisdiction to impose and levy tax has been challenged on the ground that flour and fine-flour are forms of wheat and therefore they are declared goods which have already suffered tax at the rate of 4 per cent as provided under section 15. We will therefore proceed to examine the issue and we will see as to whether in the term "wheat" in clause (i) (iii) of section 14 of the CST Act, flour or fine-flour are also included or "wheat" has been used therein in the restricted sense ? It was contended by the learned counsel for the petitioners that flour and fine-flour, i. e. , maida and suji are merely forms of wheat and therefore are declared goods under the above referred clause (i) (iii) of section 14 of the CST Act. Learned counsel has built his case on the case of Dhanbad Flour Mills' case [1989] 75 STC 47 wherein the Patna High Court has taken a view that atta, maida and suji are included in the item "wheat" in section 14 (i) (iii) of the CST Act. In the aforesaid case reliance was also placed upon the case of Alladi Venkateswarlu v. Government of Andhra Pradesh [1978] 41 STC 394 (SC ). In the aforesaid case of Alladi Venkateswarlu [1978] 41 STC 394 the apex Court was dealing with word and phrase "rice" which too are declared goods, under clause (i) (ii) of section 14 of the CST Act. The apex Court was dealing with a case where the First Schedule to the Andhra Pradesh General Sales Tax Act, 1957 (No. 6 of 1957), dealing with matters provided by section 5 (2) (a) contained entry 66, which runs as follows : ------------------------------------------------------------------------ "description of goods Point of levy Rate of tax ------------------------------------------------------------------------ 66. Rice - At the point of sale by 6 paise in (a) Rice not covered the first wholesale dealer the rupee by sub-item (b) in the State effecting below. the sale. Provided that a rebate of two paise in the rupee shall be allowed on the rice sold and consumed in the State in accordance with such rules as may be prescribed. (b) Rice obtained from At the point of sale by 1 paisa in paddy that has met the first wholesale dealer the rupee. " tax under this Act in the State effecting the sale. ------------------------------------------------------------------------ There was no dispute that paddy out of which the commodity in question, i. e. , "atukulu" (parched rice) and "muramaralu" (puffed rice) (had been made), had been subjected to tax. The Supreme Court said that the question before it was that whether "atukulu" (parched rice) and "muramaralu" (puffed rice) are "rice" within the meaning of entry 66 (b) of Schedule I to the Andhra Pradesh General Sales Tax Act, 1957. The court posed a question, "whether paddy ceased to be "rice" when it is converted into "parched rice" and "puffed rice" ? The court said that : " It is true that it is no longer rice grain as it emerges from the husk. Parched rice and puffed rice have to go through further processes. These are only processes of converting rice grain into a different form of it by heating or parching. If such rice is still rice, even if we confine the term 'rice' to grain, is it by going through these processes of heating or parching converted into separate items for the purposes of entry 66 in the First Schedule of the Act ?" It does not appear from the aforesaid case that the question in issue was as to whether the goods in question was declared goods or not and the only limited question was whether the goods can be termed both in sub-section (1) of section 5 as well as sub-section (2) of section 5 simultaneously. The court said : " We do not think that it is fair to so interpret a taxing statute as to impute an intention to the Legislature to go on taxing what is virtually the same product in different forms over and over again. Such a result would be contrary to basic axioms of taxation. Unless the language of the taxing statute was absolutely clear, it should not be given an obviously unfair interpretation against the assessee. " The court quoted Kayani and Co. v. Commissioner of Sales Tax [1953] 4 STC 387 (Hyd.) and said that : " The only principle deducible from it is that the commonly accepted sense of a term should prevail in construing the description of an article of food. While dealing with an item meant for rice as a cereal, the court had accepted a more limited meaning of the term 'rice' so as to exclude cooked rice in all its forms. Of course, the case before us is not a case of rice cooked and prepared in the form of 'pulao' or 'biriyani' or any other type of cooked rice which may have undergone changes of character by additions or chemical transformation which may convert it into a food product with a substantially different identity. It was only converted from unedible grain into an edible form by parching or puffing through a heating process. " The court again said that : " Even if parched rice and puffed rice could be looked upon as separate in commercial character from rice as grain offered for sale in a market, yet, keeping in view the other matters mentioned above, it could not be presumed that it was intended to exclude from entry 66 'rice', which, at any rate, had not so changed its identity as not to be describable as 'rice' at all. 'muramaralu' was after all rice even though it was puffed. 'atukulu' even though parched was still called rice. We must also remember that the Schedule which we have to interpret is in the English language where the term 'rice' is still found in the rendering or description of 'pelalu' as well as that of 'muramaralu' in the English language. And, in any case, if two interpretations of a provision are possible, we think that we ought to, in such a case, apply the principle that the interpretation which favours the assessee should be preferred. " The court again made it clear that the language could have provided separate category for parched rice and puffed rice, but it has not done so. The court said that : " It was possible for the Government to lay down a separate category for parched rice and puffed rice, but it has not done so. Section 40 of the Act lays down the power of the State Government to modify, to alter or to cancel any item in the Schedule. It can also notify, under section 9 of the Act, exemptions and reductions of tax. " We fail to understand as to how the aforesaid case could have and is in any way related to the present controversy, which is as to whether if under section 14 (i) (iii) of the CST Act "wheat" is declared goods, even its form, such as flour or fine-flour, i. e. , maida and suji, and other food products substantially different from wheat, such food products having different identity than wheat can be said to be declared goods within the meaning of the aforesaid clauses. It may be stated that the aforesaid case of Alladi Venkateswarlu [1978] 41 STC 394 (SC) has been relied upon by the Patna High Court in the case of Dhanbad Flour Mills [1989] 75 STC 47 and the Karnataka High Court in its recent cases of New Swastik Flour Mill v. State of Karnataka (Writ Petitions Nos. 3600 and 3601 of 1990 decided by the Karnataka High Court on March 7, 1991) [reported in [1992] 84 STC 49 (Kar)]. We will make reference to the aforesaid cases at a later stage of this order. ;