- (1.) THIS is an application on behalf of the State for the revision of the order of the Deputy Commissioner, Excise and Taxation (Appeals), Jaipur dated 19. 11. 1963. The Assessing Authority assessed the opposite party to tax on sales of aerated water at the rate of 5% and also imposed a penalty of Rs. 75/- for the late submission of returns. The learned Deputy Commissioner modified the order of the Assessing Authority by reducing the rate of tax from 5% to 4%.
(2.) THE learned Government Advocate has urged that the rate of tax on aerated water during the relevant period was 5% in terms of Notification No. F. 5 (23) E&t/61-I, dated March 9, 1961. THE learned Deputy Commissioner held the notification to be repugnant to sec. 5 of the Rajasthan Sales Tax 1954, in so far as it sought to be read as a legal authority for the imposition of tax at the rate of 5% on aerated water. THE relevant part of sec. 5 of the aforesaid Act is reproduced below : "5. Rate of tax - THE tax payable by a dealer under this Act shall be at such single point in the series of sale by successive dealers as may be prescribed and shall be levied at the rate of "4" per cent on the taxable turnover; . . . . . . . . . . . . . . . . . . . . . . . . . . . Provided also that where the State Government is of the opinion that it is necessary or expedient in the public interest so to do, it may, by notification in the Official Gazette, provide that the rate at which the tax payable by a dealer in respect of any goods or class of goods to be specified in the notification shall be such not exceeding "7 per cent" on the taxable turnover as may be specified in the said notification. " A plain reading of the above provision shows that the intention of the Legislature was that sales-tax shall be levied at the general rate of 4 per cent on the taxable turnover at a single point in the series of sales, the point of levy being prescribed separately. This is subject to the qualification that the State Government may by a notification in the official gazette prescribe rates other than the general rate of 4 percent which may not exceed 7 percent in respect of any goods or class of goods to be specified in the notification. The above said notification which purports to have been issued under sec. 5 of the Act first lists 47 items on which rates different from the general rate of 4 per cent have been specified. The last and 48th items says that tax will be charged at 5 per cent on goods other than those listed as items 1 to 47 as well as six other items mentioned under item 48. The effect is that the general rate of 4 per cent envisaged in sec. 5 will be chargeable on six items only, viz. , stationery including paper and newsprint; ready made clothes; footwear, spectacles, spectacle frames and lenses; gur; and kerosene oil. As a result of this notification the general rate of sales-tax has been restricted to six items, which is manifestly contrary to the intention of the Legislature as embodied in sec. 5 of the Act. Such a defective notification cannot serve as a legal sanction for levying tax on the opposite party for the sale of aerated water at the rate of 5 percent which is higher than the general rate of 4 percent. It is settled law that any rule or notification which is inconsistent with the provisions of the Statute under which it is issued is void and without effect. This Board has had occasion to strike down defective notifications under various Acts, and the notification referred to above deserves the same fate in so far as it seeks to impose tax at the omnibus rate of 5 per cent on all items other than those enumerated in item 48 of the notification. I, therefore, reject this application for revision preferred on behalf of the State, and uphold the order of the learned Deputy Commissioner. .;