M LABDUL MALIK AND CO Vs. COMMERCIAL TAX OFFICER 2ND CIRCLE BASAVANGUDI BANGALORE

JUDGEMENT

(1.) In this petition under Article 226 of the Constitution, the petitioners pray that this Court may be pleased to : (i) strike down item 31-B included in the Fifth Schedule of the Mysore Sales Tax Act, 1957 (to be hereinafter referred to as the "Act") as a result of the enactment of the Mysore Sales Tax (Second Amendment) Act, 1958 (Act 31 of 1958) as being beyond the competence of the Mysore Legislature in view of the provisions of the Additional Excise Duty on woollen fabrics, artificial silk fabrics, sugar and tobacco (Goods of Special Importance) Act, 1957 Central Act 58 of 1957 (to be hereinafter referred to as the Central Act 58 of 1957) and (ii) quash the Order No. D2/58-59 dated 19th March, 1960, (marked as exhibit A) passed by the first respondent and the appellate order in Appeal Petition No. 71/60-61 dated 10th December, 1960, passed by the second respondent by issue of a writ of certiorari or any other appropriate writ or direction or order as this Court may deem fit in the circumstances of the case.

(2.) The petitioner is a firm manufacturing sugar candy from sugar since last about 20 years. The petitioner was assessed to sales tax on 19th March, 1960, by the first respondent for the year 1958-59 on the sugar candy sold by it, by virtue of item 31-B in the Fifth Schedule. The petitioner's appeal in this regard was unsuccessful. The appellate order was passed on 10th December, 1960.

(3.) It was urged on behalf of the petitioner that the amendment effected to the Fifth Schedule by which "sugar candy" was taken out of the category of sugar was beyond the powers of the Mysore Legislature and therefore is liable to be struck down as ultra vires. This contention was urged on the basis of the provisions in the Central Act 58 of 1957. It was contended on behalf of the petitioner that "sugar candy" is only the purer form of "sugar" and as such is protected by the provisions of the Central Act 58 of 1957; therefore the State Legislature lost competence to levy any sales tax on the same.